2004 S C M R 1
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, C.J., Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ
FARRUKH SAYYAR and 2 others---Petitioners
Versus
CHAIRMAN, NAB, ISLAMBAD and others---Respondents
Criminal Petitions Nos.189, 191 and 215 of 2003, decided on 24th September, 2003.
(On appeal from the judgment dated 5-5-2003, passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi, in Criminal Appeals Nos.43-E and 44-E of 2002).
(a) National Accountability Ordinance (XVIII of 1999)---
----S.10---Criminal Procedure Code (V of 1898), Ss.367, 537 & 423--Constitution of Pakistan (1973), Art.185 (3)---High Court vide impugned judgment had set aside the conviction and sentences of accused recorded by the Accountability Court and remanded the case to the Trial Court, for recording judgment in accordance with the provisions of S.367, Cr.P.C. after hearing the parties---Trial Court had overlooked the mandatory provisions of S.367, Cr.P.C. and rendered the judgment which fell short of the requisite standard---Failure to specify the points for determination as required under S.367, Cr.P.C. was an omission not curable under S.537, Cr.P.C. and absence of decision on the points for determination and reasons in the judgment amounted to an illegality which had prejudiced the case of the accused---Impugned judgment was fully covered by Cl. (d) of S.423, Cr.P.C.---Contention that High Court ought to have written the judgment itself instead of remanding the case which had in fact amounted to retrial of the accused, could not prevail because; firstly the case had been remanded for fresh hearing and judgment and not for retrial of the accused and secondly, the remand order was in line with the law laid down by Supreme Court in Sahab Khan v. The State 1997 SCMR 871---Leave to appeal was refused to accused in circumstances.
Sahab Khan,v. The State 1997 SCMR 871 ref.
(b) Criminal Procedure Code (V of 1898)---
----Ss.367 & 537---Contents of judgment, non-compliance of-Effect--Failure to specify the points for determination as required under S.367, Cr.P.C is an omission which is not curable under S.537, Cr.P.C. and absence of decision on the said points and want of reasons in the judgment amounts to an illegality which prejudices the case of the accused.
Muhammad Ilyas Siddiqui, Advocate Supreme Court and M. A. Zaidi, Advocate-on-Record for Petitioner (in Criminal Petition No.189 of 2003).
Raja Muhammad Ibrahim Satti, Advocate Supreme Court and M. A. Zaidi, Advocate-on-Record for Petitioners (in Criminal Petition No. 191 of 2003).
Shaukat Aziz Siddiqui, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Petitioner (in Criminal Petition No.215 of 2003).
Syed Jaffar Hashmi, Deputy Prosecutor General, NAB with M.S. Khattak, Advocate-on-Record for Respondents.
Date of hearing: 24th September, 2003.
2004 S C M R 4
[Supreme Court of Pakistan]
Present: Qazi Muhammad Farooq, Abdul Hameed Dogar and Sardar Muhammad Raza Khan, JJ
GHULAM MURTAZA---Appellant
Versus
THE STATE ---Respondent
Criminal Appeal No.347 of 2001, decided on 9th October, 2003.
(On appeal from the judgment dated 30-5-2001 of the Lahore High Court, Lahore passed in Criminal Appeal No.518 of 1996 and Murder Reference No.98 of 1996).
(a) Penal Code (XLV of 1860)---
----Ss..302(b), 306 & 308---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted to the accused only to the extent of quantum of sentence to consider whether at the time of incident he was minor aged 15/16 years and, therefore, was not liable for death sentence in view of the provisions of S.306, P.P.C. read with S.308, P. P. C. and also discrepancy in the age, as laid down by Supreme Court in the case reported as Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758.
(b) Penal Code (XLV of 1860)---
----Ss.302(b), 306, 307 & 308---Sentence---Admittedly, accused had not raised the plea of his being minor at the time of incident before the Courts below and for the first time he had taken such plea before the Supreme Court by producing two Birth Certificates which on perusal did not concern the accused but related to some other person of different name---Provisions of Ss.306, 307 & 308, P.P.C. were attracted only in the cases of Qatl-i-Amd liable to Qisas under S302(a), P.P.C., whereas both the Courts below in the present case had arrived at a correct conclusion that the accused was major at the time of incident and, as such, was convicted and sentenced to death as Tazir under S.30z(b), P.P.C.---Conviction and sentence of death awarded to the accused were maintained in circumstances.
Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Ziaullah v. Najeebullah and others PLD 2003 SC 656 and Muhammad Akram v. The State 2003 SCMR 855 ref.
(c) Penal Code (XLV of 1860)---
----Ss. 306, 307, 308 & 302(a)---Qatl-i-Amd not liable to Qisas--Provisions of Ss.306, 307 & 308, P.P.C. would only be attracted in the cases of Qatl-i-Amd liable to Qisas under S.302(a), P.P.C.
Chaudhary Rayasat Ali, Advocate Supreme Court for Appellant.
Malik Aanul Haq, Advocate Supreme Court for the State.
Sardar Muhammad Latif Khan Khosa, Senior Advocate Supreme Court for the Complainant.
Date of hearing: 9th October, 2003.
2004 S C M R 8
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, Mian Muhammad Ajmal and Falak Sher, JJ
MUHAMMAD SHARIF ---Appellant
Versus
THE STATE---Respondent
Criminal Appeal No.32 of 2002, decided on 24th September, 2003.
(On appeal from the judgment of the Lahore High Court, Lahore dated 24-4-2001 passed in Criminal Appeal No. 125 of 1996 and Murder Reference No.48 of 1996).
(a) Penal Code (XLV of 1860)-----
----S.302(b)---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to the accused to consider the question of sentence only because he had allegedly come to the spot empty-handed and the occurrence was sudden and unpremeditated.
(b) Penal Code (XLV of 1860)-----
----S.302(b)---Appraisal of evidence---Sentence, reduction in---Accused, according to the evidence on record, had come to the "Dera" of the deceased empty-handed in hot temper which indicated that he had no intention to commit the murder and in heat of passion picked up a wooden "Thoka" from the courtyard and inflicted blows to the deceased which resulted into his death---"Lalkara" made by accused before attacking at deceased that he would kill the deceased was not supported by the facts and circumstances of the case and the same appeared to be simply customary---No previous enmity existed between the parties except for the annoyance of the accused due to the grazing of the deceased's cattle in his fields which caused the present occurrence---Incident was sudden affair in heat of passion without premeditation---Sentence of death of accused was reduced to imprisonment for life in circumstances with benefit of S,.382-B, Cr.P.C.
Masoodur Rehman Mirza, Advocate Supreme Court and Attaur Rehman, Advocate-on-Record for Appellant.
Dil Muhammad Tarar, Advocate Supreme Court for the State.
Date of hearing: 24th September, 2003.
2004 S C M R 12
[Supreme Court of Pakistan]
Present: Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ
AMJAD HASSAN GURCHANI---Petitioner
Versus
SAJJAD HAIDER KHAN and another---Respondents
Criminal Petition for Leave to Appeal No.283-L of 2003, decided on 15th October, 2003.
(On appeal from the judgment dated 8-4-2003 of the Lahore Hugh Court, Multan Bench, Multan, passed in Criminal Appeal No.575 of 2000).
(a) Criminal Procedure Code (V of 1898)-----
----Ss.426 & 561-A---Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.7(1)---Suspension of sentence---Powers of High Court---During the pendency of appeal High Court cannot release a convict on bail in view of the exclusion of application of S.426, Cr.P.C. by S.7(1) of the Suppression of Terrorist Activities (Special Courts) Act, 1975---High Court can only exercise its jurisdiction under S.561-A, Cr.P.C. in the cases of hardship, such as pendency of appeal of convict for a number of years either on account of delaying tactics on the part of the prosecution agency, or because of heavy work load of the Court and also if accused was suffering from ailment of the nature detrimental to life.
The State v. Syed Qaim Ali Shah 1992 SCMR 2192; Pervaiz Akhtar v. Muhammad Inayat and 4 others 1995 SCMR 929 and Manga Khan v. The State 1996 PSC (Criminal) 332 ref.
(b) Penal Code (XLV of 1860)-----
----S.302(b)/34---Criminal Procedure Code (V of 1898), Ss.426 & 561-A---Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.7(1)---Constitution of Pakistan (1973), Art.185(3)--Suspension of sentence---Validity---High Court while, suspending the sentence of accused had not dilated upon any of the prerequisite conditions viz. that S.7(1) of the Suppression of Terrorist Activities (Special Courts) Act, 1975, had excluded the application of S.426, Cr.P.C. and that powers under S.561-A, Cr.P.C. could only be exercised by the High Court in the cases of hardship---Merit of the case alone bad been considered by the High Court to be the ground for suspending the sentence and admitting the accused to bail, which was not the requirement of law---Petition for leave to appeal was consequently converted info appeal and was allowed and bail granted to accused by the High Court was cancelled.
The State v. Syed Qaim Ali Shah 1992 SCMR 2192; Pervaiz Akhtar v. Muhammad Inayat and 4 others 1995 SCMR 929 and Manga Khan v. The State 1996 PSC (Criminal) 332 ref.
Sardar Muhammad Latif Khan Khosa, Senior Advocate Supreme Court for Petitioner.
Khawaja Sultan Ahmad, Senior Advocate Supreme Court for Respondent No. 1.
Ainul Haq, Advocate Supreme Court for Respondent No.2.
Date of hearing: 15th October, 2003.
2004 S C M R 15
[Supreme Court of Pakistan]
Present: Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ
FIRDOUS PAUL---Petitioner
Versus
THE STATE---Respondent
Criminal Petition No. 507-L of 2003, decided on 22nd September, 2003.
(On appeal. from the order dated 10-7-2003 of the Lahore High Court, Lahore, passed in Criminal Miscellaneous No. 3356-B of 2003).
Criminal Procedure Code (V of 1898)-----
----S.497(1), first proviso---Penal Code (XLV of 1860), S.302--Constitution of Pakistan (1973), Art. 185 (3)---Bail on medical grounds--Accused according to the opinion of two Medical Boards was suffering from severe heart disease and required bypass operation as soon as possible as he was at high risk of dying suddenly---Accused was also suffering from Diabetes with severe diabetic complications and had also developed renal problems---Condition of accused further deteriorated after his release on interim bail by Supreme Court and according to expert medical opinion he carried moderate risk of acute renal insufficiency if Coronary Artery Bypass Grafting was required---Petition for leave to appeal was converted into appeal and allowed and ad interim bail already granted to accused was confirmed in circumstances.
M. Iqbal Bhatti, Advocate Supreme Court for Petitioner.
Muhammad Munir Paracha, Advocate Supreme Court for the Complainant.
Dil Muhammad Tarar, Advocate Supreme Court for the State.
Date of hearing: 22nd September, 2003.
2004 S C M R 18
[Supreme Court of Pakistan]
Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ
MUHAMMAD AFZAL---Petitioner
Versus
INSPECTOR-GENERAL OF POLICE and others---Respondents
Civil Petitions Nos.3937-L of 2001, 3980-L of 2001, 106-L to 109-L of 2002 and 618-L to 620-L of 2002, decided on 26th May, 2003.
(On appeal from the judgments dated 17-10-2001 of the Punjab Service Tribunal, Lahore, passed in Appeals Nos.79/96, 35/96, 15/96, 139/96, 140/96, 141/96, 16/96, 17/96 and 248/96).
(a) Civil service------
----Pro forma promotion---Petitioners claimed such promotion, on analogy of officers junior to them, who had already secured pro forma promotion through judgments of Service Tribunal---Departmental representation and appeal before Service Tribunal were dismissed--Validity ---Petitioners had not challenged such judgments, whereby not only their juniors had been promoted, but their inter se seniority had been disturbed---Such judgments had attained finality irrespective of fact, whether those were in consonance with law or not---Such judgments had been implemented in letter and spirit and valuable rights had accrued in favour of others---If prayer of petitioners was accepted, then they would become senior to few hundreds of their senior colleagues, who had not been impleaded as party and would be adversely affected---Such petitions were, thus, not competent---Petitioner's contention that such judgments being judgments in personam were not applicable to their case, was repelled---No question of law of public importance was involved--Supreme Court dismissed petitions and refused to grant leave to appeal.
Pir Bakhsh v. Chairman, Allotment Committee PLD 1987 SC 145; Muhammad Sohail v. Government of N.-W.F.P. 1996 SCMR 218 and M.A. Rashid Rana v. Secretary Home, Government of Punjab 1996 SCMR 1145 rel.
(b) Service Tribunals Act (LXX of 1973)-----
---S.4---Original departmental representation/appeal/review barred by time---Appeal before Service Tribunal---Condonation of delay--Principles.
If original representation was barred by time and aggrieved employee did not disclose sufficient cause for such delay or inability to move Departmental Authority within prescribed period, then no subsequent order of disposal of such incompetent representation/ appeal/review could create-fresh cause of action or automatically operate to condone delay of limitation in availing remedy under section 4 of Service Tribunals Act, 1973.
Abdul Wahid v. Chairman, Central Board of Revenue 1998 SCMR 882; Aziz Ahmed v. Secretary to Government of Pakistan 1985 SCMR 368; WAPDA v. Aurangzeb 1988 SCMR 1354; Federation of Pakistan v. Muhammad Azim Khan 1989 SCMR 1271; 1982 SCMR 582; Muhammad Hasham v. Inspector-General of Police 1990 SCMR 1440; Anwarul Haq v. Federation of Pakistan 1995 SCMR 1505; S.S. Qureshi and 15 others v. Secretary, Ministry of Foreign Affairs and 5 others 1985 SCMR 1953; S.H.M. Rizvi and 5 others v. Maqsood Ahmed and 6 others PLD 1981 SC 612 and Chairman, PIAC v. Nasim Malik PLD 1990 SC 951 rel.
(c) Police Rules, 1934---
----R.13.14(2)(a)(b)---No promotion could be made in violation of R.13.14(2)(a)(b) of Police Rules, 1934.
Malik Amjad Pervaiz; Advocate Supreme Court and Walayat Umer, Advocate-on-Record for Petitioners. (in C.P. No. 3937-L of 2001).
Ch. Muhammad Sadiq, Advocate Supreme Court and Mian Ataur Rehman, Advocate-on-Record for Petitioners (in C.Ps. Nos.3980L of 2001, 106 to 109/1- of 2002 and 618 to 620-L of 2002).
Miss Yasmin Sehgal, Asstt.-A.G:, Punjab, A.H. Masood, Advocate Supreme Court and Saleem Sikandar, Asstt. Inspector-General of Police for Respondents.
Date of hearing: 26th February, 2003.
2004 S C M R 23
[Supreme Court of Pakistan]
Present: Javed Iqbal and Karamat Nazir Bhandari, JJ
MUHAMMAD RAFIQUE---Petitioner
Versus
DIRECTOR-GENERAL, PAKISTAN RANGERS, SINDH---Respondent
Civil Petition No.2467-L of 2000, decided on 2nd June, 2003.
(On appeal from the judgment dated 15-8-2000 of the Federal Service Tribunal, Lahore Bench passed in Appeal No.331/L of 1998).
Pakistan Rangers Recruitment Rules, 1968----
----R. 13(3)(4), Explns. I & II---Constitution of Pakistan (1973), Art.212(3)---Reversion to former rank on unsatisfactory performance after expiry of probation period---Such order was passed on 9-12-1997, while probation period of civil servant ended on 30-10-1997---Claim of civil servant was that he stood confirmed on the expiry of maximum period of probation---Departmental appeal and appeal filed before Service Tribunal were dismissed---Validity---Competent Authority, if considered performance of civil servant unsatisfactory, was required to pass order of reversion by day on which maximum period of probation expired---Consequence of non-passing such order by 30-10-1997 was that civil servant stood confirmed by force of law---Substantial question of law in shape of interpretation of R.13(3)(4) of Pakistan Rangers Recruitment Rules, 1968 being involved, Supreme Court allowed appeal and set aside the impugned judgment.
Hafiz Tariq Naseem, Advocate Supreme Court and Mahmoodul Islam, Advocate-on-Record for Petitioner.
Muhammad Nawaz Bhatti, D. A. G. for Respondent.
Date of hearing: 2nd June, 2003.
2004 S C M R 25
[Supreme Court of Pakistan]
Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ
TEHSIL MUNICIPAL, ADMINISTRATION FAISALABAD CITY---Petitioner
Versus
MUHAMMAD SALEEM and anotherRespondents
Civil Petitions Nos.4162-L and 4163-L of 2002, decided on 2nd January, 2003.
(On appeal from the judgment dated 14-10-2002 passed by the Lahore High Court, Lahore, in Writ Petition. No. 18452 of 2002).
Factories Act (XXV of 1934)---
-----S.2(i)---Constitution of Pakistan (1973), Art. 212 (3)---Contentions of petitioners were that impugned judgment was in violation of principles as laid down by Supreme Court in its judgment reported as PLD 2002 SC 452 and that petitioner being not involved in making, altering and preparing any article or substance with a view to its sale and transaction, provisions as contained in Cl. (i) in S.2 of Factories Act, 1934 were not applicable in his case---Respondent had controverted such contention of the petitioner and had submitted that controversy could not be resolved unless and until evidence was recorded---Dictum as laid down in case reported as PLD 2002 SC 452 appeared to have been ignored in the case---Contentions agitated by parties needing consideration, leave to appeal was granted and status quo was directed to be maintained.
Town Committee; Ghakhar Mandi v. Authority Under the Payment of Wages Act, Gujranwala and 57 others PLD 2002 SC 452 ref.
Syed Farooq Hassan Naqvi, Advocate Supreme Court for Petitioner.
N.A. Butt, Advocate Supreme Court for Respondents.
Date of hearing: 2nd January, 2003.
2004 S C M R 27
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
PUBLIC WORKS DEPARTMENT GOVERNMENT OF PUNJAB, LAHORE and others---Petitioners
Versus
NATIONAL INDUSTRIAL RELATIONS COMMISSION and another---Respondents
Civil Petition for Leave to Appeal No.3403-L of 2002, decided on 10th April, 2003.
(On appeal from the judgment dated 28-8-2002 of the Lahore High Court, Lahore passed in Writ Petition No. 19800 of 2002).
Industrial Relations Ordinance (XXIII of 1969)---
----S.22---Constitution of Pakistan (1973), Art. 185(3)---Termination from service---Failure to provide opportunity of hearing---Reason given for termination of the employee was his absence from duty--No opportunity of hearing was provided to the employee to substantiate his case regarding his absence---National Industrial Relations Commission set aside the order of termination of the employee and the order was maintained by High Court in exercise of Constitutional jurisdiction--Validity---No illegality had been committed by High Court in maintaining the order passed by the National Industrial Relations. Commission, warranting interference by Supreme Court ---Leave to appeal was refused.
Muhammad Riaz Lone, Advocate Supreme Court for Petitioners.
M.A. Zafar, Advocate Supreme Court and Ozair Chughtai, Advocate-on-Record for Respondent No.2.
Date of hearing: 10th April, 2003.
2004 S C M R 28
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry and Faqir Muhammad Khokhar, JJ
Malik NAZAR HUSSAIN ---Petitioner
Versus
NATIONAL BANK OF PAKISTAN and another---Respondents
Civil Petition No.461-L of 2000, decided on 20th February, 2003.
(On appeal from the judgment/order dated 7-12-1999 passed by Lahore High Court, Lahore in Writ Petition No. 12466 of 1996).
Industrial Relations Ordinance (XXIII of 1969)-----
----Ss.15 & 22(8)(g)---Constitution of Pakistan (1973), Arts. 185(3) & 199---Unfair labour practice-- -National Industrial Relations Commission, jurisdiction of---Jurisdiction of High Court under Art. 199 of the Constitution---Filing of Constitutional petition during the pendency of appeal before National Industrial Relations Commission---Employee was terminated from service on the charges of fraud and forgery---Employee alleged unfair labour practice and National Industrial Relations Commission, set aside the order passed by the employer---High Court in exercise of Constitutional jurisdiction restored the termination order and set aside the order passed by National Industrial Relations Commission on the ground that the case was of individual nature which was not covered under S.15 of Industrial Relations Ordinance, 1969---Plea raised by the employee was that the Constitutional petition was filed during the pendency of appeal before National Industrial Relations Commission, thus High Court could not exercise jurisdiction under Art. 199 of the Constitution---Validity---National Industrial Relations Commission had no jurisdiction to entertain the petition on behalf of the employee, without examining whether he had been made victim of unfair labour practice in accordance with the provisions of S.15 of Industrial Relations Ordinance., 1969---Assumption. of jurisdiction by National Industrial Relations Commission was illegal, therefore, High Court was competent to entertain Constitutional petition filed by the employer---Although the Constitutional petition was filed during the pendency of appeal before the National Industrial Relations Commission, yet the same had been withdrawn by the employer---If order or proceedings were patently without jurisdiction, High Court could issue writ in exercise of its ,jurisdiction under Art. 199 of the Constitution---Supreme Court declined to interfere with the judgment passed by High Court--Leave to appeal was refused.
Chairman Central Board of Revenue v. Pak. Saudi Fertilizer Ltd. 2001 SCMR 777 rel.
M. Anwar Ghumman, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.
Kh. Muhammad Farooq, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Respondents.
Date of hearing: 20th February, 2003.
2004 S C M R 32
[Supreme Court of Pakistan]
Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ
ABDUL QAYYUM---Petitioner
Versus
DISTRICT AND SESSIONS JUDGE and others---Respondents
Civil Petition No.2111-L of 2002, decided on 24th February, 2003.
(On appeal from the judgment dated 3-6-2002 of the Punjab Service Tribunal, Lahore, passed in A. No. 133 of 2002).
Punjab Service Tribunals Act (IX of 1974)-----
----S.4---Constitution of Pakistan (1973), Art.212(3)---Compulsory retirement from service---Unwilling worker---Non-appearance before Inquiry Officer---Civil servant was habitual late comer and absentee and appeared to be arrogant---During departmental inquiry, the civil servant did not appear before Inquiry Officer and entered appearance only after warning was administered to him---Civil servant was earlier dismissed on several occasions and was subsequently reinstated on humanitarian grounds---Validity---Conclusion drawn by Inquiry Officer duly concurred by the Authorities and upheld by Service Tribunal being well based did not warrant any interference---Leave to appeal was refused.
Ibne. Hassan, Advocate Supreme Court and Walayat Umar, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing : 24th February 2003.
2004 S C M R 35
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, Tanvir Ahmed Khan and Sardar Muhammad Raza, JJ
ZIA GHAFOOR PIRACHA---Petitioner
Versus
CHAIRMAN, BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, RAWALPINDI and others---Respondents
Civil Petitions Nos. 1384 and 1385 of 2002, decided on 2nd June, 2003.
(On appeal from the consolidated judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 3-7-2002 passed in I.C.As. Nos.70 and 71 of 2002 respectively).
(a) Interpretation of statutes-----
----Service Regulations of a Statutory Body---Government as required by the Statute having not given its formal approval to the said Regulations, the same would be termed as internal instructions or domestic rules having no status of statutory rules.
The Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi PLD 1984 SC 170 ref.
(b) Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976)-----
----Ss. 12(1)(a), 12(8)(iii)(iv), 14; 15, 17 & 20(1)(iii)---Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---Constitution of Pakistan 1973), Art.185(3)---Service Regulations of the employees of the Board---Nature---Dismissal of employees of the Boa-rd by the Chairman---Validity---Different categories-of persons were working in the hierarchy of the Board; some were termed as officers whose terms and conditions were determined by the Controlling Authority but respecting certain employees in BPS-5 to 15, according to Service Regulations of the Board. No.8, the Chairman had all the powers under the law as well as Regulations---Petitioner having been appointed by the Chairman of the Board being Competent Authority, disciplinary action against said employee could be taken by him being Appointing Authority, under S.12 (1)(a) of the Punjab Boards of Intermediate and Secondary Education Act, 1976---Service Regulations of the Board being not statutory In nature adaptation of Punjab Civil Service (Efficiency and Discipline) Rules, 1975 by the Board would not make the said Service Regulations statutory in nature---High Court, in circumstances, had rightly dismissed the Constitutional petition of the employee being not maintainable---Petitions for leave to appeal were dismissed.
The Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi PLD 1984 SC 170 and Hamid Mukhtar Piracha v. Faisalabad Development Authority 1984 PSC 42 ref.
Syed Najamul Hassan Kazmi, 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 Nos. 1 and 2.
Sajjad Hussain Shah, A.-A.G., Punjab and Rao M. Yousaf Khan, Advocate-on-Record for Respondent No.3.
Date of hearing: 2nd June, 2003.
2004 S C M R 44
[Supreme Court of Pakistan]
Present: Javed Iqbal and Falak Sher, JJ
Ch. MUHAMMAD HUSSAIN NAQSHBANDI --- Petitioner
Versus
GOVERNMENT OF THE PUNJAB and others---Respondents
Civil Petition No. 173-L of 2001, decided on 7th May, 2003.
(On appeal from the judgment dated 7-12-2000 of the Punjab Subordinate Judiciary Service Tribunal, Lahore High Court, Lahore, passed in Service Appeal No.38 of 1996).
(a) Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974----
----R.7---Probation period---Further extension---Scope---Initial period of probation was two years subject to further extension of two years---Total period of probation would be four years, which could not be extended beyond that---Where no order was made on completion of initial two years of probation period, same would be deemed to have been extended---Further extension for two years could be made irrespective of fact, whether civil servant was appointed by way of initial recruitment or otherwise.
(b) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)----
----S. 4---Punjab Civil Servants Act (VIII of 1974), S. 10(1)--- Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.7---Constitution of Pakistan (1973), Art. 212(3)---Probationer--Termination of service after completion of two years of probation period---Petitioner's contention was that such order could not be passed without issuing show-cause notice; and that on expiry of two years of probation period, he stood automatically confirmed---Tribunal dismissed petitioner's appeal---Validity---Total period of probation under R.7 of Punjab Civil Servants (Appointment and Conditions of Service), 1974, was four years, which could not be extended beyond that---Question of "automatic confirmation" would not arise, as in absence of any order on completion of initial two years of probation period, same would be deemed to have been extended for further two years---Petitioner had not challenged order extending probation period, thus, had impliedly accepted the same---No stigma of misconduct including inefficiency or corruption had been attached with termination of services of petitioner, same would be a case of "termination simpliciter"---Question of issuing show-cause notice prior to such termination would not arise as same was not obligatory on Competent Authority to have issued---High Court could not be compelled to reinstate or confirm petitioner as reinstatement and confirmation both would depend on subjective assessment of particular incumbent, which aspect of the matter squarely fell within jurisdictional domain of High Court---Impugned judgment was strictly in accordance with settled norms of justice---No question of public importance was involved---Supreme Court dismissed petition and refused leave to appeal.
Tahir Hussain Shirazi v. Governor of the Punjab 1990 SCMR 1510; Muhammad Siddiq Javaid Chaudhry v. Government of West Pakistan PLD 1974 SC 393; Pakistan (Punjab Province) v. Riaz Ali Khan 1982 SCMR 770; The Deputy Registrar, Cooperative Societies, Peshawar Division and another v. Farman Ali 1991 SCMR 400; Karachi Port Trust through Chairman, Board of Trustee v. Altaf Ahmed and another 1996 SCMR 1205; The Secretary, Government of the Punjab through Secretary, Health Department, Lahore v. Riaz-ul-Haq 1997 SCMR 1552; Iqbal Wasti v. Collector of Customs, Karachi 1987- PLC (C.S.) 758; Federation of Pakistan v. Riaz Ali Khan PLD 1958 (W.P.) Lah. 22; Riaz Ali Khan v. Pakistan PLD 1967 Lah. 491; Abdul Karim v. The West Pakistan Province PLD 1956 SC (Pak.) 298 and The Secretary, East Pakistan Industrial Development Corporation, Dacca v. M.D. Serajul Haque 1970 SCMR 398 rel.
(c) Punjab Civil Servants Act (VIII of 1974)---
-----S. 10(1)---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.7---Probationer---Termination simpliciter and dismissal or removal from service without show-cause notice ---Scope--Services of probationer could be terminated without notice during initial or extended period of probation---Where no stigma of misconduct including inefficiency or corruption was attached, same would be a case of "termination simpliciter", thus, question of any prior show-cause notice would not arise--- "Termination simpliciter" could not be equated with that of "dismissal" or "removal"; where probationer would be eligible for show-cause notice.
Amjad Hussain Syed, Advocate Supreme Court for Petitioner.
Nemo for Respondent.
Date of hearing: 7th May, 2003.
2004 S C M R 49
[Supreme Court of Pakistan]
Present: Javed Iqbal and Karamat Nazir Bhandari, JJ
PROVINCE OF PUNJAB through the Director (E.E.), Lahore Division, Lahore and others---Petitioners
Versus
MUHAMMAD AFZAL---Respondent
Civil Petition No. 1950-L of 2001, decided on 29th April, 2003.
(On appeal from the judgment dated 27-3-2001 of the Punjab Service Tribunal. Lahore, passed in Appeal No.935 of 2000).
(a) Punjab Service Tribunals Act (IX of 1974)-----
----S.4----Constitution of Pakistan (1973), Art. 212(3)---Dismissal from service---Appointment of civil servant after six years was alleged to be bogus and procured by exerting political pressure---Civil servant was dismissed from service on such allegation---Service Tribunal accepted civil servant's appeal---Validity---No evidence had been led to support such accusation---No regular inquiry had been made to unveil realityCivil servant was possessing requisite qualification for appointment as PTC Teacher---Competent Authority had made such appointment at recommendations of Tehsil Recruitment Committee---Civil servant had been dismissed from service after having rendered six years' service without affording opportunity of hearing and completion of mandatory formalities as envisaged in Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 causing him serious prejudice and resulting in grave miscarriage of justice---Such dismissal smacked of mala fides--Impugned judgment being well-reasoned did not warrant interference--Supreme Court dismissed petition and refused to grant leave to appeal.
(b) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975-----
----Rr. 5, 6 & 7--Regular inquiry and haphazard probe---Distinction and effect---Haphazard probe and its result without following prescribed procedure as enumerated in Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 could not be equated to that of inquiry and would have no significance at all.
(c) Civil service-----
--Illegal order and arbitrary direction issued by person having no authority---Duty of bureaucracy to disobey, such order and direction--Emphasized.
Bureaucracy should be courageous enough to disobey illegal orders irrespective of the fact, who had issued them including politicians/MNAs/MPAs having no authority to pass such order or give such arbitrary directions, so that no illegal appointment could be made in contravention of law and under political influence or for any other extraneous considerations.
Aziz Ahmad Chughtai, Advocate Supreme Court and Rao M. Yusuf Khan, Advocate-on-Record for Petitioners.
Nemo for Respondent.
Date of hearing: 29th April, 2003.
2004 S C M R 52
[Supreme Court of Pakistan]
Present: Javed Iqbal, Falak Sher and Karamat Nazir Bhandari, JJ
MAZHAR HUSSAIN---Petitioner
Versus
HABIB BANK LIMITED---Respondent
Civil Petition No. 1794-L of 2000, decided on 16th April, 2003.
(On appeal from, the judgment dated 2-5-2000 of the Federal Service Tribunal, Lahore, passed in Appeal No.898(L) of 1999).
Service Tribunals Act (LXX of 1973)----
----S.2-A [as added by Service Tribunals (Amendment) Act (XVII of 1997)] & S.4---Constitution of Pakistan (1973), Art. 212(3)---Removal from service---Petitioner was Cashier and his services were regulated by Wage Commission Award---Service Tribunal dismissed petitioner's appeal for lack of jurisdiction on the ground that he was "workman" and not "civil servant"---Validity---Tribunal had misconstrued and misinterpreted S.2-A of Service Tribunals Act, 1973---Such employees were amenable to jurisdiction of Tribunal being "civil servants", which status had been conferred upon them by virtue of S.2-A of the Act for limited purpose the approaching Tribunal for redressal of their grievances concerning terms and conditions of service irrespective of Service Rules and Regulations applicable to their cases---Fact that services of petitioner as Cashier were regulated by Wage Commission Award or otherwise, would hardly matter---Supreme Court accepted appeal and remanded case to Tribunal for its decision afresh after affording opportunity of hearing to all concerned.
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 S C M R 826 fol.
Ch. Ghulam Qadir, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Petitioner.
Mian Muhammad Saleem, Advocate Supreme Court for Respondent.
Date of hearing : 16th April 2003.
2004 S C M R 56
[Supreme Court of Pakistan]
Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ
NASIM AHMAD---Petitioner
Versus
WATER AND POWER DEVELOPMENT AUTHORITY through Chairman, Lahore and another---Respondents
Civil Petition No.839-L of 2000, decided on 18th March, 2003.
(On appeal from the judgment dated 10-2-2000 of the Federal Service Tribunal, passed in Appeal No. 857(L)-of 1999).
(a) Pakistan Water and Power Development Authority Act (XXXI of 1958)---
----S.17(1-A)(a)---Service Tribunals (Procedure) Rules, 1974, R. 6(2)--Constitution of Pakistan (1973), Art. 212(3)---Compulsory retirement from service without completion of necessary legal formalities--Departmental appeal and appeal before Service Tribunal were dismissed---Validity---Competent Authority had misused its powers as same had neither issued show-cause notice nor assigned any reason nor afforded proper opportunity of hearing to civil servant---No unbridled and unfettered powers had been conferred upon Competent Authority under S.17(1-A) of the Act to shunt out its employees at its own whims and wishes without completion of necessary legal formalities---Civil servant had alleged specific mala fides alongwith affidavit, which had been ignored by Tribunal---Service Tribunal was competent to examine as to whether order passed under S.17(1-A) of the Act was bona fide or mala fide---Departmental appeal had been dismissed in a perfunctory and slipshod manner by means of a non-speaking order---Supreme Court accepted appeal, set aside order of retirement and impugned judgment and reinstated civil servant with immediate effect with all back-benefits with observation that Competent Authority would be at liberty to initiate fresh action, if deemed fit and proper, subject to all legal exceptions and strictly in accordance with law.
WAPDA v. Zulfiqar Ali PLD 1988 SC 693; Pakistan and others v. Public-at-large and others PLD 1987 SC 304 and Ejaz Nabi Abbasi v. WAPDA 1992 SCMR 774 rel.
(b) Pakistan Water and Power Development Authority Act (XXXI of 1958)---
----S.17(1-A)---Power of Competent Authority to remove or retire employee of WAPDA---Scope---Authority had no unbridled and unfettered' powers to shunt out its employees at its own whims and wishes without completion of necessary legal formalities.
WAPDA v. Sikandar Ali Abro 1998 SCMR 137 rel.
Mian Mahmood Hussain, Advocate Supreme Court and Faizur Rehman, Advocate-on-Record for Petitioner.
Abdur Rehman Madni, Advocate Supreme Court for Respondents.
Date of hearing: 18th March, 2003.
2004 S C M R 62
[Supreme Court of Pakistan]
Present: Javed Iqbal, Falak Sher and Karamat Nazir Bhandari, JJ
FIDA HUSSAIN JAVED and 3 others---Petitioners
Versus
DIRECTOR FOOD, PUNJAB and others---Respondents
Civil Petitions Nos.2966-L to 2968-L and 4145-L of 2002, decided on 28th May, 2003.
(On appeal from the judgment dated 23-5-2002 of the Punjab Service Tribunal, Lahore, passed in Appeals Nos.570/92, 571/92, 595/92, and 1275 of 1994).
(a) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975----
----R. 4(1)(b)---Punjab Service Tribunals Act (IX of 1974), S.4--Constitution of Pakistan (1973), Art.212(3)---Charge of embezzlement--Compulsory retirement from service and recovery of amount---Such penalty was imposed upon petitioners and two other officers on the basis of evidence collected during inquiry---Service Tribunal dismissed appeals filed by petitioners, but accepted appeals of other officers---Validity---Petitioners, in spite of having been served with show-cause notice and publication made in press, had deliberately avoided to participate in disciplinary proceedings---Petitioners had been compulsory retired as a result of subjective assessment made by Competent Authority regarding their performance, which was not found above board---Such assessment fell in exclusive jurisdiction' of Competent Authority---Charge of embezzlement had been proved as a result of departmental inquiry, which otherwise was not possible without connivance of petitioners, who had signed documents concerning handing over stock of misappropriated wheat ---Factum of embezzlement being question of fact, had been determined by Competent Authority after having comprehensive inquiry, which determination had been upheld by Service Tribunal---Sufficient incriminating material had come on record against other two officers, but absolving them of such charge would amount to sheer discrimination--Supreme Court dismissed petition filed by petitioners and refused to grant them leave to appeal with directions to other two officers to show cause as to why judgments of Service Tribunal passed in their favour (not appearing to be in consonance with evidence as collected against them during inquiry on the basis of which such penalty had been imposed upon petitioners) be not set aside and major penalty imposed upon them by Department be kept intact.
Munawar Tahir Hussain v. Government of the Punjab 1990 SCMR 1470 and Najib Ullah v. Assistant Commissioner/Collector 1989 SCMR 679 rel.
(b) Civil service---
----Annual Confidential Report---Performance of civil servant could not be, assessed only on basis of ACR.
Muhammad Ozair Chughtai, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 28th May, 2003.
2004 S C M R 67
[Supreme Court of Pakistan]
Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ
PROVINCE OF PUNJAB through Secretary C&W Department and others----Petitioners
Versus
IBRAR YOUNAS BUTT----Respondent
Civil Petition No.3815-L of 2002, decided on 19th June, 200
(On appeal worn the judgment dated 17-10-2002 of the Punjab Service -Tribunal, Lahore, passed in Appeal No.788 of 2002).
(a) Civil service---
---Good governance largely dependent on upright, honest and strong bureaucracy---Subservient bureaucracy neither helpful to Government nor inspires confidence in administration---Duty of Government servant to comply with only legal and competent order/direction of -his superior Authority, but not illegal and incompetent order/direction on any plea including risk of disciplinary action---Duty of bureaucrat to apprise elected representative placed as incharge of Government Department about niceties of administration, provide him correct guidance and bring to his notice legal infirmities in the orders/directions---Principles.
Zahid Akhtar v. Government of Punjab PLD 1995 SC 530 fol.
(b) Punjab Service Tribunals Act (IX of 1974)-----
----S. 4---Constitution of Pakistan (1973), Art.212(3)---Deputation--Lien---Civil servant while on deputation was permanently absorbed in borrowing Department with consent of parent Department---Repatriation of civil servant to his parent Department after lapse of one decade and treating intervening period spent in borrowing Department on deputation---Service Tribunal accepted appeal of civil servant--Validity---After termination of his lien in parent Department, civil servant could not be repatriated without affording him proper opportunity of hearing as certain vested rights had accrued in his favour after permanent absorption---Repatriation could not be directed in an arbitrary manner as no unfettered powers had been conferred upon Chief Secretary to pass such order, which was not in accordance with relevant law and rules made thereunder---After lapse of more than a decade, validity of initial appointment and subsequent absorption could not be questioned save in accordance with law---Performance of civil servant was not above board, who was facing some inquiries on account of corruption---Proper course for Authority was to complete inquiry, and in case allegation of corruption was proved, civil servant could be shunted out from service in accordance with law---Corrupt civil servant would neither become an angel after his repatriation from one Department to the other nor same would be a solution in such-like problems---Order of repatriation had resulted in serious miscarriage of justice---Impugned order being well-based did not warrant any interference---Supreme Court dismissed petition and refused to grant leave to appeal.
Muhammad Sharif Butt, Advocate Supreme Court and Rao Muhammad Yusuf Khan, Advocate-on-Record for Petitioners.
Respondent in person.
Date of hearing: 24th February, 2003.
2004 S C M R 74
[Supreme Court of Pakistan]
Present: Javed Iqbal, Falak Sher and Karmat Nazir Bhandari, JJ
SECRETARY (SCHOOLS), GOVERNMENT OF THE PUNJAB, LAHORE and others---Petitioners
Versus
MUHAMMAD SHARIF TIRMAZI---Respondent
Civil Petition No. 1252-L of 2002, decided on 12th May, 2003.
(On appeal from the judgment dated 12-2-2002 of the Punjab Service Tribunal, Lahore, passed in Appeal No.3562 of 1999).
(a) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---
----R. 4(a)(ii),(b)(i)---Constitution of Pakistan (1973), Art.212(3)--Penalty of reduction in pay by three stages lower in time scale---Charges of embezzlement and wilful absence---Service Tribunal converted such major penalty to that of minor penalty of withholding of three increment's-Validity---Such charges had not been proved by adducing cogent and concert evidence---Penalty of reduction in pay by one stage in lower time scale as recommended by Authorized Officer was probably due to reason that financial irregularities were not grave in nature--Penalty of reduction in pay by three stages lower in time scale as awarded by Competent Authority was unlawful as same could be made, but not beyond that lower stage, such penalty had rightly been set aside by Tribunal---Minor penalty of withholding of three increments would meet ends of justice---No question of law of public importance being involved, Supreme Court dismissed petition and refused leave to appeal.
(b) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975-----
----R. 4(b)(i)---Reduction to "a" lower stage in time scale---Meaning--Such reduction could be made to "one" lower stage, but not beyond that.
Miss Salma Malik, Asstt. A.-G., Punjab and Rao M. Yusuf Khan, Advocate-on-Record for Petitioners.
Nemo for Respondent.
Date of hearing: 12th May, 2003.
2004 S C M R 76
[Supreme Court of Pakistan]
Present: Javed Iqbal and Tanvir Ahmed Khan, JJ
MUHAMMAD RASHID and others---Petitioners
Versus
ABDUL RASHID through Mst. Sharifan Begum and others---Respondents
Civil Petition for Leave to Appeal No.2368/L of 2000, decided on 14th May, 2002.
(On appeal from the judgment, dated 6-7-2000 of the Lahore High Court, Multan Bench, Multan passed in Civil Revision No.570-D/2000).
(a) Specific Relief Act (I of 1877)-----
----Ss. 39 & 42---Civil Procedure Code (V of 1908), O. VII. R. 11---Arbitration Act (X of 1940), Ss. 14, 17, 32 & 33---Constitution of Pakistan (1973), Art. 185(3)---Suit for declaration and cancellation of award made rule of Court---Rejection of plaint---Plaintiff's plea was that they were not parties to award, thus., same was not binding on them--Trial Court rejected plaint under O. VII; R. 11, C.P.C. or. the ground that jurisdiction of Civil Court was- barred under Ss. 32 & 33 of Arbitration Act, 1940---Appellate Court and High Court maintained such order in appeal and revision respectively---Validity---Award related to distribution of assets of predecessor of both the parties---Plaintiffs had been simply awarded certain amount and extra land as compensation out of property left by their predecessor---Record showed that defendants had distributed property left by their predecessor on their own at different places---Bar contained in Ss. 32 & 33 of Arbitration Act, 1940 would not be attracted to plaintiffs for being not parties to award--Plaintiffs would be affected by terms of award as property left by their predecessor had been divided and settled through same without associating them---Supreme Court converted petition into appeal and allowed the same while remanding case to Trial Court for decision afresh.
(b) Arbitration Act (X of 1940)----
----Ss. 32 & 33---Bar contained in Ss. 32 & 33 of Arbitration Act, 1940---Applicability---Such bar would apply to persons, who were parties to award as they could challenge existence, effect and validity of arbitration agreement or award through application.
Hassan Ahmad Khan Kanwar, Advocate Supreme Court for Petitioners.
Jehnagir A. Jhojha, Advocate Supreme Court for Respondents.
Date of hearing: 14th May, 2002.
2004 S C M R 80
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry and Faqir Muhammad Khokhar, JJ
SHARIF and others---Petitioners
Versus
MUHAMMAD HUSSAIN and others---Respondents
Civil Petition No.667-L of 1999, decided on 13th May, 2002.
(On appeal from the judgment/order, dated 29-4-1999 passed by Lahore High Court, Lahore, in W.P. No. 1258-R of 1999).
(a) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)-----
----S. 2(2)---Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss. 11 & 14A(1)- --Constitution of Pakistan (1973), Arts. 185(3), 189 & 199---Remand order---Excess land got allotted by petitioners was cancelled on Mukhbari information in year 1969 and was transferred to respondent-Mukhbar after one month---Constitutional petition filed against cancellation of excess land was dismissed by High Court, but Supreme Court while dismissing petition for leave to appeal observed that petitioners should approach Settlement Authorities for reconsideration of their case sympathetically to allow them to retain excess land on payment of market value---Petitioners made application for allotment of excess land, over which Assistant Commissioner as Notified Officer sold such land to them---Respondents challenged such order through Constitutional petition, which was accepted---Contention of petitioners was that order passed by Supreme Court was a remand order in terms of S. 2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, thus, High Court had no jurisdiction to set aside order of Assistant Commissioner, who had lawful authority to sell such land---Validity---Supreme Court in earlier judgment had not set aside order of High Court, which was operating against petitioners confirming cancellation of excess land from their names---Supreme Court had not remanded case to Settlement Authorities for redressal of grievance of petitioners, except observing that their request should be considered sympathetically---Petitioners' claim could be considered, if they had succeeded in establishing a legal right in their favour--Petitioners could not be accommodated sympathetically as no land was available for transfer in their favour---So long as order of transfer of excess land passed in favour of respondents in year 1969 was holding field, no subsequent sale of such land to petitioners could take place--Notified Officer had no authority to pass fresh order in favour of petitioners causing prejudice/injustice to respondents, who had acquired valuable rights in property---Considering the case sympathetically would mean that petitioners should be accommodated if possible, but not at the cost of others---High Court was quite justified in allowing Constitutional petition filed by respondent---Supreme Court dismissed petition and refused leave.
Farhat Azeem v. Waheed Rasul and others PLD 2000 SC 18: PLD 1964 Lah. 469 and PLD 1972 Lah. 880 ref.
(b) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---
----S. 2(2)---Displaced Persons (Land Settlement) Act (XLVII of 1958) Ss. 11 & 14A(i)---Constitution of Pakistan (1973) Arts. 185(3) & 189--Remand order---Expression "considering the case sympathetically" by the Court---Connotation---Supreme Court in earlier judgment while refusing to, set aside impugned order of cancellation of excess land from petitioners' name observed that they should approach Settlement Department for re-consideration of their case sympathetically--Contention of petitioners was that such observations made in their favour would tantamount to remand the case to Notified Officer---Held, considering the case sympathetically would mean that petitioners should be accommodated, if possible, but not at the cost of others.
(c) Words and phrases---
----"Considering the case sympathetically"---Means that a person should be accommodated if possible but not at the cost of others.
Farhat Azeem v. Waheed rasul and others PLD 2000 SC 18 ref.
M.S. Baqir, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioners.
Muhammad Ashraf Wahala, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Respondents.
Date of hearing: 13th May, 2002
2004 S C M R 86
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
Sh. SAJID MAHMOOD and others---Petitioners
Versus
FAZAL AHMED and others---Respondents
Civil Petition for Leave to Appeal No.207-L of 2000, decided on 19th June, 2002.
(On appeal from the judgment, dated 8-12-1999 of the Lahore High Court, Bahawalpur Bench, Bahawalpur, passed in R.S.A No.36 of 1977).
Punjab Pre-emption Act (I of 1913)-----
---S. 15---Constitution of Pakistan (1973), Art. 185(3)---Suit for preemption ---Defendant's plea was of either having equal qualification of being owners in estate or having superior right being collaterals of vendor---Suit decreed by Trial Court was upheld by Appellate Court, but was dismissed by High Court in revision---Validity---Plaintiffs during evidence had admitted equal right of being owners in estate of some defendants---Remaining defendants had been found to be collaterals of vendor---Courts below had totally excluded evidence of one witness who had categorically stated that they were collateral of vendor---High Court after reading evidence of such witness with pedigree-table, had dismissed suit on sound and cogent reasons---No exception could be taken to impugned judgment---Supreme Court dismissed petition and refused leave.
Ghulam Nabi Bhatti, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.
Nazir Ahmed Ghazi, Advocate Supreme Court with S. Abul Asim Jafri, Advocate-on-Record for Respondents.
Date of hearing: 19th June, 2002.
2004 S C M R 89
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry and Syed Deedar Hussain Shah, JJ
MUHAMMAD HAROON alias HAROON REHMAN---Petitioner
Versus
THE STATE---Respondent
Criminal Petition for Leave to Appeal No. 112-K of 2002, decided on 26th December, 2002.
Criminal Procedure Code (V of 1898)-----
----S. 497---Penal Code (XLV of 1860), Ss. 324/34, 337-A(i) & (ii)--Bail, grant of ---Shajjah-i-Khafifah and Shajjah-i-Mudiah--- Accused not named in F.I.R.---No specific role attributed to accused---Accused was allegedly involved in case under S.324, P.P.C. but neither any specific role was attributed to him in the F.I.R. nor he was named therein---Injuries received by the victim as per medical report fell within the ambit of Shajjah-i-Khafifah under S.337-A(i), P.P.C. and Shajjah-i-Mudiah under S.337-A(ii), P.P.C. sentence of which extended to 2 and 5 years -respectively---Accused had made out a case for grant of bail because if all offences would be proved against him the maximum sentence under the offences would not exceed 5 years---Bail was granted in circumstances.
Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner
Suleman Habibullah, Additional A.-G. Sindh for the State.
Date of hearing: 26th December, 2002
2004 S C M R 91
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui and Syed Deedar Hussain Shah, JJ
CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD and another---Petitioners
Versus
ASIF BAIG MUHAMMAD and others---Respondents
C.P.S.L.A. No.800-K of 2001, decided on 3rd December, 2002.
National Accountability Ordinance (XVIII of 1999).-----
----Ss. 9(b) & 17.---Constitution of Pakistan (1973), Arts. 185(3) & 199---Criminal Procedure Code (V of 1898), S. 497---Bail, grant of---Constitutional jurisdiction of High Court---Accused was arrested by National Accountability Bureau and was in judicial lock-up---High Court in exercise of Constitutional jurisdiction released the accused on bail--Plea raised by the Authorities was that High Court had wrongly released the accused in exercise of Constitutional jurisdiction---Validity---Accused facing charges under National Accountability Ordinance, 1999, could approach High Court under Art. 199 of the - Constitution---Application under S.497, Cr.P.C. before High Court was not maintainable--Supreme Court declined to interfere with the order passed by High Court in exercise of Constitutional jurisdiction---Leave to appeal was refused.
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.
Akhlaq Ahmed Siddiqui, Advocate Supreme Court/Advocate-on-Record for Petitioners.
K. A. Wahab, Advocate-on-Record for Respondent No.1.
Date of hearing: 3rd December, 2002.
2004 S C M R 94
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Sardar Muhammad Raza Khan, JJ
Mst. NAZRAN BIBI and another---Petitioners
Versus
Mst. SHARIFAN BIBI and another---Respondents
Civil Petition for Leave to Appeal No. 1533-L of 1999, decided on 19th June, 2002.
(On appeal from the judgment, dated 5-7-1999 of the Lahore High Court, Lahore, in Civil Revision No.1450 of 1998).
(a) Constitution of Pakistan (1973)-----
----Art. 185---Question of fact rightly determined concurrently by three Courts below---Supreme Court should not interfere, specially when there were no signs of miscarriage of justice.
(b) Islamic Law-----
----Inheritance---Deceased not owning property at time of death, but only his claim, according to which allotment was to be made was pending--Such claim would go to entire family on death of deceased before allotment.
Ch. Noor Illahi, Advocate Supreme Court for Petitioners.
Nemo for Respondents.
Date of hearing: 19th June, 2002.
2004 S C M R 96
[Supreme Court of Pakistan]
Present: Rana Bhagwandas, Syed Deedar Hussain Shah and Faqir Muhammad Khokhar, JJ
Dr. IFTIKHAR AHMAD ZAHID --- Petitioner
Versus
Mrs. NILOFER AKHTAR and another---Respondents
Civil Petition for Leave to Appeal No. 127 of 2002, decided on 6th June, 2002.
(On appeal from judgment of Lahore High Court, Rawalpindi Bench, dated 23-10-2001 passed in Civil Revision No.261 of 1999).
Specific Relief Act (I of 1877)-----
----S. 12---Civil Procedure Code (V of 1908), S. 148--Constitution of Pakistan (1973), Art. 185(3)---Suit for specific performance of agreement to sell---Extension of time fixed by decree---Defendant conceded plaintiff's claim, over which Trial Court decreed suit directing plaintiff to deposit balance sale price within thirty days, otherwise suit would be deemed to have been dismissed---Application for extension of time made before its expiry was rejected by Trial Court, which order was upheld by High Court---Plaintiff's contention was that defendant having conceded his claim as regards decree for specific performance, there was no point in not allowing extension of time for deposit of balance sale price; that Trial Court was not denuded of its power to enlarge period earlier fixed by it; that there were conflicting views on question of jurisdiction of Court after passing of decree in matter of extension of time fixed by decree and there was no authoritative judgment of Supreme Court on the issue involved except Shah Wali v. Ghulam Din (PLD 1966 SC 983), which arose out of decree in suit for pre-emption ---Supreme Court granted leave to appeal to consider such question in the light of relevant law.
Shah Wali v. Ghulam Din PLD 1966 SC 983 ref.
Ch. Naseer Ahmad, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.
Muhammad Munir Paracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondent No. 1.
Date of hearing: 6th June, 2002.
2004 S C M R 98
[Supreme Court of Pakistan]
Present: Qazi Muhammad Farooq, Tanvir Ahmed Khan and Sardar Muhammad Raza Khan, JJ
IZZAT BAIG AWAN---Petitioner
Versus
HABIB BANK LIMITED---Respondent
Civil Petition for Leave to Appeal No.1072 of 2001, decided on 23rd July, 2002.
(On appeal from the judgment, dated 10-5-2001 of the Federal Service Tribunal, Islamabad in Appeal No.98(R)CE of 2000).
(a) Bank employees-----
---- Institution of banking is one of trust reposed by public at large and Bank Authorities in peculiar nature of the duties of their employees cannot afford breach of trust by retaining in service people who are involved in criminal cases.
(b) Service Tribunals Act (LXX of 1973)-----
----S. 2-A & 4---Constitution of Pakistan (1973), Art. 212(3)---Bank employee---Removal from service---Absence from duty---Involvement in criminal case---On such involvement, the Bank employee absented him self from duty---Bank Authorities issued show-cause notice and after, affording opportunity of hearing to the Bank employee, removed him from service---Service Tribunal maintained the order of removal from service---Plea raised by the employee was that his absence was unavoidable---Validity---Absence whether avoidable or unavoidable was the sole concern of the official---Bank could not afford the luxuy of absence as well as loss of goodwill---Case of laxity on the part of the employee was proved and his retention in service being not in the interest of the Bank, he was rightly removed---Leave to appeal was refused.
Dr. Babar Awan, Advocate Supreme Court for Petitioner.
Ajmal Kamal, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents.
Date of hearing: 23rd July, 2002.
2004 S C M R 100
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ
PAKISTAN STEEL MILLS CORPOPORATION (PVT.) LTD. ---Petitioner
Versus
SINDH LABOUR APPELLATE TRIBUNAL and 10 others---Respondents
Civil Petition No.78-K of 2001 decided on 18th June, 2001.
(On appeal from the Judgment, dated 7-12-2000 passed by the Federal Service Tribunal in Appeal No.434(K)(CE) of 2000).
(a) Service Tribunals Act (LXX of 1973)---
---S. 2-A---Jurisdiction of Service Tribunal under S.2-A of Service Tribunals Act, 1973---Scope---Condonation of delay---Insertion of S.2-A in Service Tribunals Act, 1973, being procedural in nature, was retrospective in operation---Service Tribunal was competent to consider application for condonation of delay on showing sufficient cause in just and proper cases.
Muhammad Afzal v. Karachi Electric Supply Corporation and 2 others 1999 SCMR 92; Syed Aftab Ahmed and others v. K.E.S.C. and others 1999 SCMR 197; Qaiser Amin and others v. President of U.B.L. and others 2000 SCMR 174; Muhammad Yaqub v. Pakistan Petroleum Ltd. and others 2000 SCMR 830 and Malik Mumtaz Ahmed and others v. Federal Service Tribunal and others 2000 SCMR 832 ref.
(b) Service Tribunals Act (LXX of 1973)-----
----Ss. 2-A, 4 & 6---Constitution of Pakistan (1973), Art.212(3)--Dismissal of appeal by Service Tribunal as barred by time---Abatement of proceedings before High Court---Extending period of limitation--Employees filed Constitutional petitions before High Court against order, dated 25-2-1991, passed by Authorities, which abated on 11-4-2000, after insertion of S.2-A in Service Tribunals Act, 1973---Employees' instead of filing appeals before Service Tribunal within 30 days, filed the same on 12-6-2000, and Service Tribunal dismissed the same being ,barred by limitation---Validity---Provision of S.2-A of Service Tribunals Act, 1973 was inserted and was made effective from 10-6-1997 and in view of S.6 of Service Tribunals Act, 1973., in case of abatement of proceedings before any Court the appeal before the Service Tribunal was to be preferred within 90 days---Employee filed Constitutional petition in the year 1991, which remained pending and it stood automatically abated on the insertion of S.2-A in Service Tribunals Act, 1973 i.e. 10-6-1997 but the formal order of abatement was passed on 11-4-2000, which did not extend the period of limitation prescribed under law---Supreme Court declined to interfere with the judgment passed by Service Tribunal--Leave to appeal was refused.
Muhammad Afzal v. Karachi Electric Supply Corporation and 2 others 1999 SCMR 92; Syed Aftab Ahmed and others v. K.E.S.C. and others 1999. SCMR 197; Qaiser Amin and others v. President of U.B.L. and others 2000 SCMR 174; Muhammad Yaqub v. Pakistan Petroleum Ltd. and others 2000 SCMR 830; Malik Mumtaz Ahmed and others v. Federal Service Tribunal and others 2000 SCMR 832; Imtiaz Butt and others v. Chairman, Pakistan International Airlines Corporation. Karachi 2000 SCMR 944 ref.
G.M. Dastagir, Advocate Supreme Court and Akhlaq Ahmed, Advocate-on-Record for Petitioner.
Nemo for Respondent.
Date of hearing: 18th June, 2001.
2004 S C M R 103
[Supreme Court of Pakistan]
Preset: Irshad Hasan Khan, C. J., Ch. Muhammad Arif and Munir A. Sheikh, JJ
KARACHI HARBOUR SHIP'S CLEANING WORKERS' UNION---Petitioner
Versus
REGISTRAR OF TRADE UNIONS, GOVENRMENT OF SINDH---Respondent
Civil Petition No.498-K of 2001, decided on 31st July, 2001.
(On appeal from judgment, dated 18-7-2001 passed by the High Court of Sindh, Karachi in Constitution Petition No.236 of 2001).
Industrial Relations Ordinance (XXIII of 1969)-----
----S.8---Constitution of Pakistan (1973), Art. 185(3)---Election change of trade union---Application for election change was moved 11 years after elections and the application established that the election change had been brought about by show of hands in general body meeting without following constitution of the trade union---Registrar, Trade Unions, declined to register the election change and the order was maintained by High Court in exercise of Constitutional jurisdiction--Validity---High Court was right in observing that the request for election change could be refused by Registrar of Trade Unions itself---Supreme Court declined to interfere with the order passed by the High Court--Leave to appeal was refused.
Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.
Nemo for Respondent.
Date of hearing: 31st July, 2001.
2004 S C M R 107
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Tanvir Ahmed Khan, JJ
SAEED ULLAH, LINE SUPERINTENDENT-I---Petitioner
Versus
CHIEF EXECUTIVE, LESCO LTD. and others ---Respondents
Civil Petition for Leave to Appeal No. 1611-L of 2002, decided 3rd July 2002.
(On appeal from the order of Lahore High Court, Lahore passed on 4-3-2002 in W. P. No. 1294 of 2002)
Constitution of Pakistan (1973)-----
----Arts. 199 & 212---Service Tribunals Act (LXX of 1973), S.4--Constitutional petition---Compulsory retirement from service---High Court disposed of Constitutional petition with direction to authority to dispose of appeal /representation of civil servant within specified time--Validity---Authority had dismissed appeal filed by civil servant---High Court had not committed any illegality in directing civil servant to avail remedy provided under law--Subject-matter of dispute related to terms and conditions of service, which in view of Art. 212 of the Constitution squarely fell within jurisdiction of Service Tribunal---Supreme Court dismissed petition and refused leave.
Mian Mahmood Hussain, Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 3rd July, 2002.
2004 S C M R 108
[Supreme Court of Pakistan]
Present: Muhammad Bashir Jehangiri, Nazim Hussain Siddiqui and Rana Bhagwandas, JJ
Messrs FIRST WOMEN BANK LIMITED---Petitioner
Versus
REGISTRAR, HIGH COURT OF SINDH, KARACHI and 4 others---Respondents
Civil Petition for Leave to Appeal No.1-K of 2001, decided on 25th January 2001.
(On appeal from order of High Court of Sindh at Karachi, dated 4-12-2000, passed in Civil Transfer Application No. 17 of 2000).
Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)-----
----S. 4---Specific Relief Act (I of 1877), Ss. 42 & 54---Constitution of Pakistan (1973), Art. 185(3)---Transferring of banking suit having value of less than thirty million rupees- --Jurisdiction of High Court--Consolidation of two suits---Bank filed a suit for recovery of Bank loan against borrower as well as guarantor and the same was pending before Banking Court---Another suit was filed by the guarantor in High Court, alleging that fraud and forgery had been committed upon him as he did not create any lien on his accounts nor pledged his Bonds---High Court transferred the suits pending in Banking Court to High Court for decision of both the suits together---Plea raised by the Bank was that claim in banking suit did not exceed thirty Million rupees, therefore, under S.4 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, trial of the suit before High Court would be without jurisdiction---Validity---Trial of both the suits together would not only be expedient in the interest of justice but also in the interest of both the parties as joint trial of both the suits would obviate the possibility of a conflict of judgments---Order passed by High Court was just, fair and equitable and it did not suffer from any inherent defect or error of jurisdiction---Leave to appeal was refused.
Gul Hassan & Company v. Allied Bank of Pakistan 1996 SCMR 244 distinguished.
Rizwan Ahmed Siddiqui, Advocate Supreme Court and Miss Wajahat Niaz, Advocate-on-Record (absent) for Petitioner.
Amir Hani Muslim, Advocate Supreme Court and M. S. Khattak, Advocate-on-Record for Respondent No.2.
Date of hearing: 25th January, 2001.
2004 S C M R 111
[Supreme Court of Pakistan]
Present: Muhammad Bashir Jehangiri and Munir A. Sheikh, JJ
Messrs MAROOF KNITWEAR (PVT.) LIMITED through Chief Executive and 8 others---Petitioners
ALLIED BANK OF PAKISTAN LIMITED---Respondent
Civil Petition for Leave to Appeal No.818 of 2000, decided on 24th May, 2002.
(On appeal from the judgment/order, dated 25-4-2000 of the Lahore High Court, Lahore passed in COS No.26 of 1999).
Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)-----
----S. 10---Civil Procedure Code (V of 1908), O. VI, R.17---Constitution of Pakistan (1973), Art. 185(3)---Amendment in application for leave to defend the suit---Amendment sought to be made in the application was declined by Banking Court as well as by High Court---Plea raised by the borrower was that the amendment in pleadings could be sought at any stage---Validity---Court was vested with the power to allow amendment in its discretion in pleadings at any stage of proceedings but it did not bind the Court to allow the amendment in all cases once application was moved---Discretion exercised by the Court for not allowing the amendment did not suffer from any illegality or arbitrariness---Supreme Court allowed the borrower to use material available on record of the suit in support of and to substantiate the grounds raised in the original application for grant of leave to appear and defend the suit---Leave to appeal was refused.
Sahibzada Anwar Hameed, Advocate Supreme Court for Petitioner.
Nemo for Respondent.
Date of hearing: 24th May, 2000.
2004 S C M R 113
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Tanvir Ahmed Khan, JJ
RIFFAT MASOOD---Petitioner
Versus
CANTONMENT BOARD OF SIALKOT and others---Respondents
Civil Petitions for Leave to Appeal Nos. 1795 and 1796-L of 1998, decided on 26th July, 2001.
(On appeal from the judgment, dated 21-8-1998 passed by the Lahore High Court, Lahore, in Civil Revisions Nos.976 of 1984 and 977 of 1984).
Cantonments Act (II of 1924)-----
----S.273---Specific Relief Act (I of 1877), S. 42---Declaratory suit--Failure to give notice prior to filing of suit---Effect---Originally suit for injunction was filed by the plaintiff but subsequently it was converted into suit for declaration---Trial Court dismissed the suit on the ground that no notice under S.273 of Cantonments Act, 1924, had been given by the plaintiff---Appellate Court as well as High Court maintained the judgment and decree passed by Trial Court---Contention of the plaintiff was that suit for injunction should have been treated as notice to Cantonment Board---Validity---High Court had rightly found that the requirement of S.273(1) of Cantonments Act, 1924, was mandatory in nature---Mere pendency of suit could not be treated as a notice to the Board and compliance of S.273(1) of Cantonments Act, 1924---Leave to appeal was refused.
Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court with S. Abul Asim Jafri, Advocate-on-Record for Petitioner.
Rana M. Nasrullah Khan, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Respondent No. 1.
Sahibzada Anwar Hameed, Advocate Supreme Court for Respondent No.3.
Date of hearing: 26th July, 2001.
2004 S C M R 115
[Supreme Court of Pakistan]
Present: Irshad Hassan Khan, C.J. and Qazi Muhammad Farooq, J
ABDUR REHMAN through Legal Heirs---Petitioner
Versus
Syed TASADDUQ HUSSAIN---Respondent
Civil Petition No.75 of 2000, decided on 18th February, 2000.
(On appeal from the judgment, dated 15-12-1999 of High Court of Sindh, Circuit Bench at Hyderabad in F.R.A. No.72 of 1986).
Sindh Rented Premises Ordinance (XVII of 1979)-----
----S. 15---Constitution of Pakistan (1973), Art. 185(3)---Bona fide personal need of landlord---Proof---Failure to prove other pleas raised by landlord---Contention of tenant was that the statement of landlord recorded on oath did not command respect and the plea of the personal need set up by him was not bona fide as he had singularly failed to prove the remaining two grounds, namely, default in payment of rent and subletting urged by him on oath---Validity---Failure of the landlord to establish ground of default and subletting could have no bearing on the established ground of personal need which by itself was sufficient to sustain eviction---Supreme Court declined to interfere with the eviction order passed by High Court against the tenant---Leave to appeal was refused.
Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioners.
Nemo for Respondent.
Date of hearing: 18th February, 2000.
2004 S C M R 117
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Hamid Ali Mirza, JJ
SHAHRA and others---Petitioners
Versus
MEMBER, BOARD OF REVENUE, PUNJAB and others---Respondents
Civil Petition No. 886-L of 2000 decided on 26th July, 2001.
(On appeal from the order, dated 1-3-2000 passed by the Lahore High Court, Bahawalpur Bench in W.P. No. 2925 of 1995).
(a) West Pakistan Land Revenue Act (XVII of 1967)-----
----Ss. 42 & 45---Sanction of mutation in pursuance of decree of Civil Court---Effect---As such the same was merely a formality and was not independent act and according to law did not by itself independently had the effect of creating any right---Revenue Authorities were bound to make changes in Revenue Record according to the decree of Civil Court.
(b) West Pakistan Land Revenue Act (XVII of 1967)-----
----S. 45---Punjab Pre-emption Act (I of 1913), S.21---Sanction of mutation in pursuance of decree of Civil Court---Non-filing of execution petition---Objection of vendee was that mutation could not be sanctioned without any order by the Executing Court---Validity---On deposit of preemption money, as ordered in pre-emption decree, the pre-emptor/decree holder was vested with full ownership rights of land the subject-matter of the suit of pre-emption about which decree was passed---Sanction of mutation could be made on the basis of decree without resorting to Executing Court under revenue laws---Executing Court in such matters would be involved in case the judgment-debtor failed to deliver possession of the land which was required to be delivered by Executing Court by issuance of warrant of possession---Law did not require that before sanction of mutation on the basis of pre-emption decree, the Revenue Authorities should have required the pre-emptors to obtain order from Executing Court-Revenue Authorities had rightly sanctioned the mutation---Leave to appeal was refused.
Zahid Hussain Khan, Advocate Supreme Court for Petitioners.
S. Abul Aasim Jafri, Advocate-on-Record for Respondents
Date of hearing: 26th July, 2001.
2004 S C M R 119
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Rana Bhagwandas and Khalil-ur-Rehman Ramday, JJ
ABDUL AZIZ---Petitioner
Versus
Malik LAL KHAN and others---Respondents
Civil. Petition for Leave to Appeal No.3547-L of 2001; decided on 27th June, 2002.
(On appeal from judgment of the Lahore High Court, dated 16-10-2001 passed in R.F.A. No.363 of 2000).
Civil Procedure Code (V of 1908)---
----S. 148---Constitution of Pakistan (1973), Art. 185(3)---Enlargement of time for deposit of court-fee and filing of amended plaint---High Court enlarged the time and directed the respondent to do the needful within time so enlarged---Validity---Petitioner had also filed a suit for declaration of his rights in the property in dispute---High Court had rightly found that it was a fit case for enlargement of time to file amended plaint and making up deficiency of court-fee---Supreme Court declined to interfere with the time enlarged by High Court---Leave to appeal was refused.
Ch. Muhammad Hussain Naqshbandi, Advocate Supreme Court for Petitioner.
Nemo for Respondents.
Date of hearing: 27th June, 2002.
2004 S C M R 121
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, C.J. and Karamat Nazir Bhandari, J
MUHAMMAD ZAKIR---Petitioner
Versus
THE STATE and another---Respondents
Criminal Petition No.454-L of 2002, decided on 3rd December, 2002.
(On appeal from the judgment, dated 28-5-2002 of the Lahore High Court, Lahore passed in Criminal Revision No.463 of 2002).
Juvenile Justice System Ordinance (XXII of 2000)---
----Ss. 5 & 7---Penal Code (XLV of 1880), Ss. 302/109/34--Constitution of Pakistani (1973), Art. 185(3)---Separation of trial--Determination of age---Ossification test---Accused claimed separation of trial on the ground that at the time of offence his age was less than 18 years---Medical Board, after examination of the accused found him of 20 years of age at the time of examination- --Trial Court declined to separate the trial of the accused---Plea raised by the accused was that Trial Court had placed reliance on ossification test and had ignored Birth Certificate and School Leaving Certificate---Validity---High Court had rightly dismissed the revision petition filed by the accused against the order of Trial Court---Leave to appeal was refused.
Q.M. Salim, Senior Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record (absent) for Petitioner.
Nemo for Respondents.
Date of hearing: 3rd December, 2002.
2004 S C M R 122
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ
CHIRAGH---Petitioner
Versus
IBRAHIM and another---Respondents
Civil Petition for Leave to Appeal No. 252-L of 1999, decided on 9th May, 2002.
(On appeal from judgment of Lahore High Court, Lahore, dated 23-11-1998 passed in Civil Revision No. 1724 of 1992).
Specific Relief Act (I of 1877)---
----S. 12---Constitution of Pakistan (1973), Art. 185(3)---Specific performance of agreement to sell---Contentions of petitioner were that the respondent had failed to prove the original agreement as well as the subsequent agreements inasmuch as he did not place the agreements on record and the same was produced in evidence by the petitioner and that the other respondent never agreed to sell his land and the suit was illegally decreed in favour of the respondent---Plea raised by the petitioner was that he was a bona fide purchaser for consideration through a registered sale-deed and the land purchased by him could not be decreed in favour of the respondent, who had failed to prove any transaction relating to the suit-land---Leave to appeal was granted by Supreme Court to consider the questions raised by the petitioner.
Ch. Ali Muhammad, Advocate Supreme Court and Syed Abul Asim Jafiri, Advocate-on-Record for Petitioner.
Respondent No. 1 in person.
Date of hearting: 9th May, 2002.
2004 S C M R 126
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmed, C.J. and Javed Iqbal, J
ANWAR KHAN--Petitioner
Versus
ABDUL MANAF---Respondent
Civil Petition No. 10-Q of 2002, decided on 18th September, 2003.
(On appeal from the judgment dated 7-12-2001 of the High Court of Balochistan, Quetta, passed in F. A. O. No. 176 of 2000).
(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)-----
----S. 13---Registration Act (XVI of 1908). Ss.17 & 49---Ejectment petition---Ancestral property---Partition of such property by way of family arrangements by means of settlement/agreement---Non registration of such document---Effect---Registration of such document not compulsory---Ownership, in absence of registration, can devolve upon landlord as one of the legal heirs and he can file ejectment petition.
Kora Mal v. Fazal Ali AIR 1934 Lah. 759; Velusami v. Velusami AIR 1962 Mad. 153; Sher Ali Khan v. Zarnaush 1994 MLD 2458 and Abdul Jelani v. Mst. Janat Bibi 1999 MLD 3331 ref.
Jahanzeb and others v. Muhammad Abbas 1999 SCMR 2182 rel
(b) Registration Act (XVI of 1908)---
----S. 17---Partition of property by way of family arrangements by means of agreement---Not compulsorily registerable---Principles.
If the parties are not interested in partition of property on permanent transfer basis, they cannot be forced or compelled to do so as it depends upon their whims and wishes to distribute the property in any manner as may be deemed fit and proper by them being their personal and family affair. In such eventuality, the question of registration of such agreement does not arise.
Jahanzeb and others v. Muhammad Abbas 1999 SCMR 2182 rel.
(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)----
----S. 13---West Pakistan General Clauses Act (VI of 1956), S.12(2)--Joint property ---Ejectment petition by one co-owner without joining or obtaining written permission from other co-owners.----Competency.--Principles.
Ejectment application can be moved by one landlord and it is not essential for him to obtain permission in writing from his co landlords/co-owners as he has locus standi to file ejectment along being co-owner.
The provisions as contained in section 12(2) of the West Pakistan General Clauses Act, 1956 also provides that the term "landlord" also covers a case where several persons are joint owners or landlords within the meaning of the definition of landlord.
There is no cavil with the proposition that anyone of the co sharers of the property can file ejectment application against the tenant and similarly any co-owner can also file such application.
Khalique Ahmed v. Abdul Ghani PLD 1973 SC 214; Nek Muhammad v. Muhammad Shafi 1983 SCMR 180 and Ghulam Rasul v. Bakhtawar 1981 SCMR 193 rel.
(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)-----
----S. 13---Ejectment petition---Partition of property between owners/landlords---Tenant's right to raise objection regarding such partition or the manner in which same was so made---Validity---Question of title has no relevancy in proceedings in rent cases, wherein pivotal point requiring determination would be relationship of landlord and tenant---Tenant has absolutely no legal right to raise such objection--Such objection would hove no substantial effect on factum of his tenancy and his status would remain as tenant.
Basharatullah, Senior Advocate Supreme Court and Mehta W.N. Kohli, Advocate-on-Record (absent) for Petitioner.
Jamal Khan Mandokhail, Advocate Supreme Court and Mir Aurangzaib, Advocate-on-Record for Respondent.
Date of hearing: 18th September, 2003.
2004 S C M R 130
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Khalil-ur-Rehman Ramday, JJ
FEDERAL BANK FOR COOPERATIVES, ISLAMABAD---Petitioner
Versus
EHSAN MUHAMMAD ---Respondent
Civil Petition for Leave to Appeal No.82 of 2003, decided on 15th September, 2003.
(On appeal from the judgment dated 5-11-2002 passed by the Federal Service Tribunal, Islamabad, in Appeal No.1155(R)-CE of 2001)
(a) Federal Bank for Cooperatives Employees Pension and Gratuity Regulations, 1989---
---Regln. 9(i)(b)(c)---Determination of total qualifying service of employee of Bank for granting pensionary benefits---Word organization" as used in Regln. 9(i)(c) of Federal Bank for operatives Employees Pension and Gratuity Regulations, 1989---Scope---Such clause would be attracted only in the case of persons, who had rendered pensionable service in any autonomous or semi-autonomous body of the Government---Employees having rendered pensionable service with Government before joining Bank had been specifically dealt with by Regln. 9(i)(b) of Regulations, 1989---Extending scope of word "organization" to a Division or Ministry of Federal Government, thus, would only make a mockery of principles of interpretation of statutes.
(b) Federal Bank for Cooperatives Employees Pension and Gratuity Regulations, 1989-----
----Regln. 9(i)(b)(c)---Service Tribunals Act (LXX of 1973), S.4--Constitution of Pakistan (1973), Art.212(3)---Determination of total qualifying service of employee of Bank for granting pensionary benefits---Respondent while working in Cabinet Division of Federal Government applied to join Bank, which selected him after conducting test/interview---Bank rejected respondent's request to count his previous service put in Cabinet Division for determining pension due to him--Service Tribunal accepted respondent's appeal on the ground that his case was covered by Regln. 9(i)(c) of Federal Bank for Cooperatives Employees Pension and Gratuity Regulations, 1989---Validity--Respondent had never been in service of any autonomous or semiautonomous body prior to his taking up employment with Bank---Record showed that respondent had not joined Bank through proper channel--Case of respondent, thus, was not covered by Regln. 9(i)(b) or 9(i)(c) of Regulations, 1989---Service Tribunal had wrongly interpreted and applied provisions of Regln. 9(i)(c) of Regulations, 1989---Such error, if left uncorrected, could lead to serious implications in future vis-a-vis calculation of qualifying service, which could have implications in all such future cases---Question concerning spending of public money would be a question of public importance---Service Tribunal had acted illegally in allowing respondent's appeal---Supreme Court accepted appeal and set aside impugned judgment.
Baber Gul and another v. Sohail Ahmad Sheikh and others 2002 SCMR 581; S.A.M. Wahdi v. Federation of Pakistan through Secretary, Finance Division, Islamabad and others 2002 SCMR 876 and Syed Abdul Qadir Shah v. Government of Sindh through Secretary, Communication and Works Department, Government of Sindh, Karachi and others 2002 SCMR 904 distinguished.
(c) Interpretation of statutes-----
----Where a situation is, specifically dealt with by a provision of law, then any general provision relating to same subject would not be attracted in cases specifically catered for.
(d) Constitution of Pakistan (1973)---
----Arts. 185(3) & 212(3)---Petition for leave to appeal---Question of public importance---Scope---Question concerning spending of public money would be a question of public importance.
Malik Muhammad Nawaz, Advocate Supreme Court with Raja Abdul Ghafoor, Advocate-on-Record for Petitioner.
Raja Muhammad Ibrahim Satti, Advocate Supreme Court for -Respondent.
Date of hearing: 8th September, 2003.
2004 S C M R 137
[Supreme Court of Pakistan]
Present : Syed Deedar Hussain Shah and Khalil-ur-Rehman Ramday, JJ
KASHIF AFTAB KHAN---Petitioner
Versus
INSPECTOR-GENERAL OF POLICE, PUNJAB, LAHORE---Respondent
Civil Petition for Leave to Appeal No.4044-L of 2001, decided on 18th September, 2003.
(On appeal from the judgment/order of the Punjab Service Tribunal, Lahore, dated 26-10-2001, passed in Appeal No.2337 of 2000).
Police Rules, 1934-----
----R.12.8---Punjab Police (Efficiency and Discipline) Rules, 1975, Rr. 4(b), 5 & 6---Punjab Service Tribunals Act (IX of 1974), S.4--Constitution of Pakistan (1973), Art.212(3)---Discharge a from service during probation period on ground of misconduct without holding regular inquiry---Service Tribunal dismissed appeal filed by civil servant--Validity---Civil servant had only few months service as Police Inspector, when his conduct was reported to be extremely unsatisfactory---Show-cause notice had been served of civil servant and his reply thereto had been duly considered---Civil servant had been discharged from service after hearing him in person--Such was not an action under Punjab Police (Efficiency and Discipline) Rules,1975, but was straightaway order of discharge from service in terms of R.12.8-of Police Rules, 1934---Tribunal after considering fact al and legal aspects of the case had rightly dismissed the appeal ---Supreme Court dismissed petition and refused leave to appeal.
Ijaz Ahmad Dar v. Director-General, Pakistan Rangers PLD 2003 SC 913 rel.
Abdul Hafeez Cheema, Advocate (Supreme Court for Petitioner.
Nemo for Respondent.
Date of hearing: 18th September; 2003.
2004 S C M R 140
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, C.J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ
MUHAMMAD SHAHID KHATTAK, TAXATION OFFICER, MUNICIPAL CORPORATION, PESHAWAR---Appellant
Versus
GOVERNMENT OF N.-W.F.P. through Secretary, L.G. & R.D. Department, Peshawar and 25 others---Respondents
Civil Appeal No. 1565 of 1997, decided on 21st April, 2003.
(On appeal from the judgment dated 22-7-1996 of the Peshawar High Court, Peshawar passed in Writ Petition No.969 of 1994).
(a) West Pakistan Local Councils and Municipal Committees Service Rules, 1963----
----North-West Frontier Province Local Government Ordinance (IV of 1979), Ss.46 & 47---North-West Frontier Province Local Councils (Provincial Unified Group of Functionaries) Service Rules, 1981--North-West Frontier Province Local Council Servants Service Rules, 1980---Constitution of Pakistan (1973), Art.185(3)---Seniority---Supreme Court granted leave to appeal to consider questions as to whether petitioner by virtue of his initial appointment in BPS-16 on 3-5-1979, was to be considered senior among Local Council Service (Provincial Unified Group of Functionaries) Officers; and whether after transfer and absorption in IRDP Officers in Local Council Service (Provincial Unified Group of Functionaries), Officers holding post in BPS-16 prior in time would stand senior in combined, seniority list.
(b) West Pakistan Local Councils and Municipal Committees Service Rules, 1963---
----North-West Frontier Province Local Government Ordinance (IV of 1979), Ss.46 & 47---North-West Frontier Province Local Councils (Provincial Unified Group of Functionaries) Service Rules, 1981--North-West Frontier Province Local Council Servants Service Rules, 1980---Seniority---Claim for seniority by appellant from date of his initial appointment (i.e. 3-5-1979) as Social-Welfare Officer (BS-16) in Municipal Corporation' after his absorption on 15-7-1985 in Local Council Service (Provincial Unified Group of Functionaries)---Validity---Initial appointment of appellant was against sole post of Social Welfare officer, which had not been created in any other Local Council, thus, same was not provincial cadre post---Appellant's seniority in Final Seniority List of employees of~ BS-16 of Local Council Service (Provincial Unified Group of Functionaries) issued on 7-1-1988 had been determined on basis of his absorption from 15-7-1985 and not from date of his initial appointment as he was not holding provincial cadre post--IRDP Officers were transferred and, absorbed on 13-6-1984 in Local Council Service (Provincial Unified Group of Functionaries), while appellant was absorbed in such service on 15-7-1985---Such Final Seniority List was correctly reflected in Combined Revised List issued on 23-9-1990 having been prepared by Department in pursuance of judgments of High Court and Supreme Court---No exception could be taken to such Combined Revised List.
Jehanzeb Rahim, Advocate Supreme Court for Appellant.
Adam Khan Jadoon, Advocate Supreme Court for Respondent
Raja M. Ibrahim Satti, Advocate Supreme Court for Respondents Nos.9, 11 and 12.
Date of hearing: 21st April, 2003.
2004 S C M R 145
[Supreme Court of Pakistan]
Present: Javed Iqbal, Falak Sher and Karamat Nazir Bhandari, JJ
NAZAKAT ALI ---Petitioner
Versus
WAPDA through Manager and others---Respondents
Civil Petition No.3005-L of 2000, decided on 3rd April, 2003.
(On appeal from the judgment/order dated 26-10-2000 of the Federal Service Tribunal, Lahore, passed in Appeal No. 668(L) of 1998) .
(a) Service Tribunals Act (LXX of 1973)-----
----S.4(1)(a)---Constitution of Pakistan (1973), Art. 212(3)---Appeal--Limitation---Condonation of delay--- Grievance petition against termination order dated 11-11-1993 filed before National Industrial Relations Commission on 20-7-1995 was dismissed on 9-9-1997 with observations that only Service Tribunal was appropriate forum for redressal of appellant's grievance---Appellant, instead of approaching Service Tribunal, again approached the Full Bench of the Commission which dismissed his appeal on 15-5-1998---Appellant had not filed in time departmental appeal---Appeal before Service Tribunal, held, was not competent in view of provisions of S. 4(1)(a) of Service Tribunals Act, 1973.
(b) Limitation Act (IX of 1908)---
----S.14---Exclusion of time spent in seeking remedy before wrong forum---Entitlement---Party would not be entitled to condonation of delay, unless he proved that he had been seeking remedy before wrong forum in good faith.
(c) Administration of justice---
---- Law would support vigilant and not indolent.
(d) Limitation Act (IX of 1908)---
----S.3---Limitation, if once allowed to commence, could not be stopped.
(e) Service Tribunals Act (LXX of 1973)---
----S.4---Constitution of Pakistan (1973), Art. 212(3)---Appeal--Condonation of delay---Such question being question of fact was within exclusive jurisdiction of Service Tribunal---Discretion concerning condonation of delay, if once exercised by Tribunal, could not be disturbed by Supreme Court without any justification.
Syed Ali Hasan Rizvi v. Islamic Republic of Pakistan 1986 SCMR 1086; Muhammad Azhar Khan v. Service Tribunal, Islamabad 1976 SCMR 262; Water and Power Development Authority v. Abdur Rashid Dar 1990 SCMR 1513 and Sher Bahadar v. Government of N.-W.F.P. 1990 SCMR 1519 rel.
Ras Tariq Chaudhry, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioner.
Faizur Rahman, Advocate Supreme Court and A.H. Masud, Advocate-on-Record for Respondents.
Date of hearing: 3rd April, 2003.
2004 S C M R 149
[Supreme Court of Pakistan]
Present: Javed Iqbal and Falak Sher, JJ
MUHAMMAD YOUSAF KHAN---Petitioner
Versus
HABIB BANK LIMITED through President and others---Respondents
Civil Petition No. 1687-L of 2001, decided on 27th March, 2003.
(On appeal from the judgment dated 15-4-2001 of the Federal Service Tribunal, Lahore, passed in Appeal No.27-L of 1999).
(a) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)-----
----S.O. 15(4)---Charge of misappropriation and embezzlement--Challenging charge-sheet at premature stage---Validity---Proper course for petitioner would be to contest charge-sheet by leading credible evidence showing that such allegations were false and concocted.
(b) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)-----
----S.O. 15(4)---Charge of embezzlement and fraud---Service of chargesheet---Starting point of limitation---Period of thirty days as prescribed in S.O. 15(4) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 would reckon from date of knowledge--When embezzlement and fraud was detected during course of proceedings or at some subsequent stage, then S.O. 15(4) of Ordinance, 1968 would not constitute a bar against service of chargesheet on score of delay---Provisions of S.O. 15(4) of Ordinance, 1968 could not be interpreted in such a manner as to allow a delinquent to go scot-free after thirty days as such interpretation would neither be logical nor reasonable---Minor delay, if any, could be ignored in view of serious nature of allegations.
(c) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---
----S.O. 15(4)---Service Tribunals Act (LXX of 1973), Ss. 2-A & 4--Constitution of Pakistan (1973), Art. 212(3)---Dismissal from service--Charge of misappropriation and embezzlement---Belated charge-sheet--Effect---Undertaking to repay embezzled amount was given by petitioner on 4-7-1994, 10-7-1994 and 27-8-1994---Charge-sheet in such circumstances issued on 24-10-1994 could not be labelled as belated one---Such admissions were got exhibited before Labour Court and were in the knowledge of petitioner, but he had not challenged their authenticity or genuineness before Service Tribunal---Such charges had been proved up to the hilt against petitioner, thus, disentitling him to remain in service---No injustice had been done with petitioner as all mandatory formalities envisaged by relevant Rules were adhered to--Concurrent findings of fact recorded by Bank as well as Service Tribunal could not be reversed without sufficient justification--Supreme Court dismissed petition and refused leave to appeal.
Muhammad Zaman Qureshi, Advocate Supreme Court and M. Ozair Chughtai, Advocate-on-Record for petitioner.
M. Iqbal Khan, Advocate Supreme Court and Ch. Talib Hussain, Advocate-on-Record for Respondents.
Date of hearing: 27th March, 2003.
2004 S C M R 154
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
ABDUL WAHID---Petitioner
Versus
GENERAL MANAGER and others---Respondents
Civil Petition for Leave to Appeal No.3254-L of 2002, decided on 14th April, 2003.
(On appeal from the judgment dated 2-7-2002 passed by the Punjab Service Tribunal, Lahore in Appeal No. 1687 of 1999).
(a) 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)---Recovery of amount of stolen medicines---Charge of theft of medicines from store---Authorised officer on basis of report of Inquiry Committee recommended for major penalty, but authority imposed penalty of recovery of amount as value of stolen medicines recoverable from salary of civil servant to the extent of one-third of his salary---Service Tribunal maintained such penalty in appeal filed by civil servant---Validity---Such penalty did not commensurate with guilt of civil servant, who had been found involved fully in pilferage of medicines by independent Inquiry Committee--Inquiry had been conducted by providing full opportunity to civil servant to put up his case and cross-examine witnesses---Authority after holding civil servant as guilty had retained him in service so as to enable him to repeat his illegal activities in paying back penalty---Even ordinary person of normal prudence would not retain such-like person in service after finding him implicated in theft---No justification was shown for leniency shown by authority in awarding such penalty---Conduct displayed by civil servant as custodian of public property did not deserve sympathy---Supreme Court dismissed petition and refused leave to appeal with directions to authority to dismiss civil servant from service.
(b) Administration of justice---
----Offences relating to individuals---Offences against society---Concept of punishment---Principles.
One of the concepts of punishing an offender is to deter other mischief-mongers from committing offences in order to bring harmony and peace in society. Courts of law while administering justice in offences relating to individuals take into consideration reformatory concept of punishment, but in offences against society, no sympathy can be shown to wrong-doer as leniency shown means a message to the alike minds that they can also get away, if they are caught. Persons committing such offences should be snubbed at the very outset and be dealt with iron hands at appropriate time, otherwise this malady would plague the whole society.
Muhammad Asghar Khadim, Advocate Supreme court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.
A.H. Masood, Advocate Supreme Court with Dr. Sabiha Khurshid, D.G., Health Services and Faiz Ali Khan, G.M., Stores for Respondents.
Date of hearing: 14th April, 2003.
2004 S C M R 158
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmed, C.J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ
PAKISTAN INTERNATIONAL AIRLINES CORPORATION through Chairman and others---Petitioners
Versus
SHAHZAD FAROOQ MALIK and another---Respondents
Civil Petitions Nos. 140 and 141 of 2003, heard on 15th April, 2003.
(On appeal from the judgment dated 18-11-2002 of the Federal Service Tribunal, Islamabad passed in Appeals Nos.562(R)CE/2002 and 688(L)/CE-2000 respectively).
(a) Pakistan International Airlines Corporation Act (XIX of 1956)---
----S.10(2)---General Clauses Act (X of 1897), S.21---Power of Authority to remove employee from service---Scope---No adverse action could be taken against employee without observing principles of natural justice---Corporation could remove its employee, if appointed in violation of rules, but such action could be taken, when no decisive step had been taken in pursuance of appointment---Vested rights would accrue to employee, who after appointment was confirmed in service---Such rights of employee could not be interfered with only on the ground that he had been irregularly appointed by Corporation, unless there were other allegations' against him in view of principle of locus poenitentiae.
Director Social Welfare, N.-W.F.P. v. Sadullah Khan 1996 SCMR 1350; P.I.A.C. v. Nasir Jamal Malik and others 2001 SCMR 934; Abdul Hafeez Abbasi and others v. Managing Director, P.I.A.C. and others 2002 SCMR 1034 and Chief Secretary, Government of Sindh v. Sher Muhammad Makhdoom PLD 1991 SC 973 ref.
(b) General Clauses Act (X of 1897)---
----S.16---Power to appoint includes power to suspend or dismiss--Scope---Authority has power to undo act done by it, but such provision would be subject to relevant laws and rules and would be applicable only in such cases, where under relevant law or rules, a different intention' does not appear.
(c) Pakistan International Airlines Corporation Act (XIX of 1956)---
----S.10(2)---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973); Art. 25---Termination of service---Authority terminated respondents from service, but allowed to continue in service other employees, who were similarly appointed---Service Tribunal set aside such order being discriminatory-- Validity---Tribunal had rightly interfered with termination order of respondent in view of Art. 25 of the Constitution---Supreme Court dismissed petition and refused leave to appeal.
Muhammad Yawar Ali, Advocate Supreme Court for Petitioners (in both Petitions).
M. Jaffar Hashmi, Advocate Supreme Court for Respondents (in both Petitions).
Date of hearing: 15th April, 2003.
2004 S C M R 164
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, Sardar Muhammad Raza Khan and Faqir Muhammad Khokhar, JJ
Engineer JAMEEL AHMED MALIK---Appellant
Versus
PAKISTAN ORDNANCE FACTORIES BOARD, WAH CANTT through Chairman and others---Respondents
Civil Appeals Nos. 1505, 1506 of 1997, 971 of 1998 and Civil Petition No.249 of 1997, decided on 10th September, 2003.
(On appeal from the judgments dated 12-3-1996, 24-3-1996, 8-12-1996 and 30-1-1997 of Federal Service Tribunal, Islamabad passed in Appeals Nos.344(R)/95, 385(R)/95, 531(R)/96 and 205(R)/96 respectively).
(a) Constitution of Pakistan (1973)---
----Art. 19---Freedom of speech/expression and press---Essential requirements of democracy---Democracy cannot survive without such freedom---Such right is not absolute, but reasonable restrictions can be imposed upon the same on reasonable grounds---Reasonable classification is always permissible in law.
Zaheeuruddin and others v. The State arid others 1993 SCMR 1718 rel.
(b) Government Servants (Efficiency and Discipline) Rules, 1973---
----Rr. 2(4) & 4(1)(b)(ii)---Government Service (Conduct) Rules, 1964, Rr. 22 & 29---Compulsory retirement from service---Charge against civil servant was that he addressed press conference and issued pamphlets criticizing his administration and talked about latest happening in New World Order and geopolitical situation, and addressed letters to higher Authorities including the President and the Prime Minister of the Country in disregard of normal procedure in that regard---Civil servant did not deny such facts, rather asserted that whatever was stated therein was correct---Validity---Not within realm of permissible limits of freedom of speech/expression for a Government servant to discuss about latest happening in New World Order and geopolitical situation---Such conduct of civil servant would be in violation of Rr.22 & 29 of Government Servants (Conduct) Rules, 1964 and misconduct within meaning of Rs.2(4) of Government Servants (Efficiency and Discipline) Rules, 1973---Such charge stood squarely proved against the civil servant.
(c) Government Service (Conduct) Rules, 1964---
----Rr. 22 & 29---Constitution of Pakistan (1973), Art. 19---Restriction on freedom of speech of Government servants---Essential in interest of public order---Reasons stated.
In order to maintain the proper discipline in public servants and efficiency in administration, it is necessary to place certain restrictions on the freedom of the speech of Government servants, which are essential in the interest of public order, otherwise there would be chaos, anarchy and mal administration in every department, as its employees would not only criticize each other publicly, but would frustrate every policy framed for the interest of general public.
(d) Government Service (Conduct) Rules, 1964---
----Rr. 22 & 29---Government Servants (Efficiency and Discipline) Rules, 1973, R. 2(4)---Government servant prohibited from taking part in politics, participating in functions of political parties, supporting students' agitations, discussing politics in offices/clubs/restaurants and other public places---Action could be taken against defaulting servants under Government Servants (Conduct) Rules, 1964 and Government Servants (Efficiency and Discipline) Rules, 1973.
(e) Civil service---
----Annual Confidential Report---Duty of Reporting Officer and Countersigning Officer stated.
Annual Confidential Reports play pivotal role in service career of an employee. It is a duty of Reporting Officer as well as Countersigning Officer to see that the reports shall not reflect undue generosity or harshness and be as objective and circumspect as possible.
Performance Evaluation Reports by Nabi Bux Khoso, Director-General (PPARC) Management Services Divison ref.
(f) Words and phrases---
---"Circumspect"---Meaning.
F.Q. Matiullah Khan Alizai v. Chief Secretary, Government of N.-W.F.P. 1994 SCMR 722 fol.
(g) Words and phrases---
----"Objective"---Meaning.
F.Q. Matiullah Khan Alizai v. Chief Secretary, Government of N.-W.F.P. 1994 SCMR 722 fol.
(h) Civil service---
---- Annual Confidential Report---Advisory remarks recorded in ACR--Effect---Advisory remarks are meant for improvement, which can neither be taken as stigma nor be treated as adverse.
Government of the Punjab and another v. Ehsanul Haq Sethi PLD 1986 SC 684 rel.
(i) Civil service---
----Annual Confidential Report with "Average" entries---Not adverse--No representation/appeal is maintainable against "Average ACRs".
Province of the Punjab through Chief Secretary, Punjab, Lahore and another v. Sardar Noor Ilahi Khan Leghari and another 1992 SCMR 1427 and Federation of Pakistan through the Secretary, Health Division v. Dr. Najmul Ghani Khan PLD 1995 SC 556 rel.
(j) Civil service---
---- Annual Confidential Report---Adverse remarks---Non-recording of adverse remarks by Reporting Officers and Countersigning Officers against corrupt and inefficient officers---Contributory factor towards corruption and inefficiency---Supreme Court emphasized on elimination of such tendency.
The experience has shown that there is growing inclination among Reporting Officers/Countersigning Officers to abstain from recording Adverse Remarks, even against corrupt and inefficient officers for some reasons. One can be that they do not want to displease anybody. Secondly, they also feel highly embarrassed when they are called upon to substantiate their adverse remarks. This lack on the part of higher authorities is a contributory factor towards corruption and inefficiency and must be eliminated to help the system work smoothly. Such officers must exercise restraint to act upon on the basis of discredited information, but at the same time, they shall canvass in objective way the true picture about the real performance of concerned officer.
(k) Civil service---
----Annual Confidential Report---Evidentiary value---Conflict between reports of Reporting Officer and Countersigning Officer---Procedure to be fallowed stated.
Reports of Reporting Officer and Countersigning Officers, unless contrary is proved by a strong piece of evidence, must be accepted as true and having legal and moral sanction behind it. Acceptance of such reports shall be a rule and rejection an exception. In case of conflict between the reports of Reporting Officer and Countersigning Officer, the entire record/personal file be thoroughly scrutinized and weighed keeping in view the intrinsic value of the material available on record for evaluating the correctness and propriety of the remarks recorded in ACR. The remarks of higher authority, as a rule, command more respect and cannot be equated with that of Reporting Officers.
Petitioner in person.
Hafiz S.A. Rehman, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondents.
Nasir Saeed Sh. Advocate Supreme Court (Standing Counsel for Respondents (in C.As. Nos. 1506 of 1997, 971 of 1998 and C.P. No. 249 of 1997).
Date of hearing: 2nd May, 2003.
2004 S C M R 183
[Supreme Court of Pakistan]
Present: Qazi Muhammad Farooq, Hamid Ali Mirza and Abdul Hameed Dogar, JJ
WAPDA through Chairman and others---Petitioners
Versus
M.M. CHANDIO, EX-CHIEF ENGINEER, WAPDA---Respondent
Civil Petition for Leave to Appeal No.655 of 2003, decided on 27th May, 2003.
(On appeal from the judgment dated 27-1-2003 in Appeal No.366(R)CS/2001 passed by the Federal Service Tribunal, Islamabad).
Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978---
----R.12---Constitution of Pakistan (1973), Art. 212(3)---Removal from service---Reinstatement---Civil servant was promoted from post of Sub-Divisional Officer to the post of Chief Engineer but subsequently he was demoted---Appeal filed by civil servant against his demotion was allowed by the Service Tribunal---During pendency of appeal an explanation was called from the civil servant which was replied by him and after hearing him, he was exonerated of the charges stated in the letter of the Authority---Authorities subsequently reopened the case and imposed major penalty of removal from service on the civil servant in exercise of power under R.12 of Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978---Record revealed and counsel for Authorities had also conceded that civil servant was not given any hearing nor any ground was communicated to him in the show-cause notice for taking action against him for his removal from service after his earlier exoneration---Petition for leave to appeal filed by Authorities against order of Service Tribunal whereby appeal filed by civil servant was allowed, was dismissed and leave to appeal was declined as no substantial question of law of public importance was involved therein.
Muhammad Younus v. Secretary, Ministry of Communication and others 1993 SCMR 122 and Chief Director, Central Directorate of National Savings, Islamabad and another v. Rahat Ali Sherwani 1996 SCMR 248 ref.
C.M. Ishaq, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record (Absent) for Petitioners.
Sh. Riazul Haq, Advocate Supreme Court and M.A. Zaidi, Advocate-or-Record for Respondents.
Date of hearing: 27th May, 2003.
2004 S C M R 186
[Supreme Court of Pakistan]
Present: Javed Iqbal and Falak Sher, JJ
COMMISSIONER, PUNJAB EMPLOYEES SOCIAL SECURITY INSTITUTION---Petitioner
Versus
JAMAL BUTT and 3 others---Respondents
Civil Petition No. 119-L to 122-L of 2003, decided on 26th March, 2003.
(On appeal from the judgment dated 26-11-2002 of the Punjab Service Tribunal, Lahore passed in Appeals Nos. 1818, 1819, 1857 and 1904 of 2002).
(a) Civil service---
----Corruption and malpractice---Civil servants (doctors by profession) made prescription under duress, influence and fear of their immediate boss---Civil servant did not show moral courage to resist such unlawful practice, but preferred to save their employment by facilitating malpractice and corruption---Such was a classic example of erosion of moral values in elite class.
(b) Punjab Service Tribunals Act (IX of 1974)---
----S.4---Jurisdiction of Service Tribunal to modify penalty imposed by Competent Authority---Scope---Tribunal is competent to modify penalty of dismissal from service to that of removal from service---Service Tribunal is competent to examine as to whether imposed penalty does commensurate with gravity of offence or not---Service Tribunal can take into consideration mitigating circumstances.
Faizur Rahman, Advocate Supreme Court for Petitioner.
Nemo for Respondents (in C.P. No. 119-L of 2003).
Shaukat Ali Mehr, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Respondents (in C.P. No.120-L of 2003).
Hafiz Tariq Naseem, Advocate Supreme Court and Muhammad Aslam Ch. Advocate-on-Record for Respondents (in C. P. No. 121-L of 2003).
Sh. Masud Akhtar, Advocate-on-Record for Respondent (in C.P. No. 122-L of 2003).
Date of hearing: 26th March, 2003.
2004 S C M R 189
[Supreme Court of Pakistan]
Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ
ZIAULLAH KHAN NIAZI---Petitioner
Versus
CHAIRMAN, PAKISTAN RED CRESCENT SOCIETY---Respondent
Civil Petitions Nos.4155-L of 2002 and 333-L of 2003, decided on 1st April, 2003.
(For leave to appeal from judgment dated 15-11-2002 passed by the Punjab Service Tribunal, Lahore in Appeal No. 1700 of 2002).
(a) Pakistan Red Crescent Society Act (XV of 1920)---
----Preamble, S.7 and First Sched.---Object and aims of Pakistan Red Crescent Society Act, 1920.
As mentioned in General Principles of Society, its object and principal aims include prevention and alleviation of the suffering with complete impartiality both at national and international level and to render voluntary aid to the sick and wounded of Armed Forces in times of war in accordance with spirit and conditions of Geneva Conference and Treaties of Red Cross to which Pakistan has given its adhesion.
(b) Punjab Service Tribunals Act (IX of 1974)---
----S.4---Punjab Civil Servants Act (VIII of 1974), S.2(1)(b) --- Punjab Removal from Service (Special Powers) Ordinance (IV of 2000), Ss.2, 9 & 10---Pakistan Red Crescent Society Act (XV of 1920), Ss.5 & 7--Constitution of Pakistan (1973), Art. 212(3)---Appeal---Employee of Punjab Branch of Pakistan Red Crescent Society---Removal from service under provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000---Appeal of such employee was accepted by Service Tribunal---Validity---Society could not be treated as a person performing functions in connection with affairs of -the Province---Employees of such Society, thus, could not be treated as civil servants of Province of the Punjab---Such employee could not invoke jurisdiction of Service Tribunal merely for being employed in Provincial Branch of Society---Impugned judgment was suffering from jurisdictional defect ---Supreme Court accepted appeal and set aside impugned judgment.
Muhammad Hanif Niazi, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Petitioner (in C.P. No.4155-L/2002 and for Respondent (in. C.P. No.333-L/2003).
Ch. Mushtaq Masood, Advocate Supreme Court and Sh. Masud Akhter, Advocate-on-Record for Respondent (in C.P.No.4155-L/2003 and for the Petitioner in C.P. No.333-L/2003).
Date of hearing: 18th March, 2003.
2004 S C M R 192
[Supreme Court of Pakistan]
Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ
KHALIQ DAD---Petitioner
Versus
INSPECTOR-GENERAL OF POLICE and 2 others---Respondents
Civil Petition No. 1058-L of 2000, decided on 4th March, 2003.
(On appeal from the judgment/order dated 11-2-2000 of the Punjab Service Tribunal, Lahore, passed in Appeal No. 4012 of 1997).
(a) Civil service---
----Disciplinary proceedings and criminal proceedings---Differentia--Acquittal from criminal case---Effect---Both such proceedings are not inter dependent and can be initiated simultaneously and brought to logical end separately with different conclusions---Criminal proceedings do not constitute a bar for initiation of disciplinary proceedings under relevant Efficiency and Discipline Rules---Acquittal in criminal case would have no bearing on disciplinary action.
Arif Ghafoor v. Managing Director PLD 2002 SC 13; Dy. I.-G. Police v. Anis-ur-Rehman Khan PLD 1985 SC 134; Muhammad Ayub v. Chairman, Electricity Board, WAPDA, Peshawar PLD 1987 SC 195; Muhammad Tufail v. Assistant Commissioner/Collector 1989 SCMR 361; Muhammad Nazir v. Superintendent of Police 1990 SCMR 1556; Talib Hussain v. Anar Gul Khan 1993 SCMR 2177; Muhammad Izharul Ahsan Qureshi v. P.LA.C. 1994 SCMR 1608 and Nawaz Khan v. Federal Government 1996 SCMR 315 rel.
(b) Punjab Police (Efficiency and Discipline) Rules, 1975---
----Rr. 4, 6 & 7---Dismissal from service---Misconduct---Non-holding of regular inquiry due to overwhelming evidence shown in show cause---No prejudice had been caused to civil servant since he had been afforded proper opportunity of hearing---Findings of Competent Authority were duly concurred by Appellate and Revisional Authorities and affirmed by Service Tribunal---No justification to differ with such findings---No illegality or infirmity in impugned judgment was found---No question of law of public importance was involved---Supreme Court dismissed petition and declined leave to appeal.
Muhammad Hussain Awan, Advocate Supreme Court for Petitioner.
Nemo for Respondents.
Date of hearing: 4th March, 2003.
2004 S C M R 195
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Actg. C. J., Qazi Muhammad Farooq, Dr. Allama Khalid Mahmood and Allama Rashid Ahmed Jullundhari, JJ
MUHARRAM---Appellant
versus
THE STATE---Respondent
Criminal Appeal No.2(S) of 1999 decided on 11th June, 2002.
(On appeal from the judgment dated 17-3-1998 of the Federal Shariat Court passed in Jail. Criminal Appeal No.8/K of 1996)-.
(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---
----S. 10(3)---Constitution of Pakistan (1973), Art.203-F(2B)---Leave to appeal was granted to accused by-the Supreme Court to consider whether the sentence of 25 years' R.I. awarded to him, in the circumstances, was excessive.
(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---
----S. 10(3)---Appraisal of evidence--- Sentence, reduction in---Minimum punishment prescribed under the law was 4 years' R.I. and maximum punishment .was 25 years' R.I'.--Award of maximum punishment to the accused in the facts and circumstances of the case was not justified--Conviction of accused was consequently upheld, but his sentence was reduced,-from 25 years' R.I. to 15 years' R.I.---Appeal was disposed of accordingly.
M. Zaman Bhatti, Advocate Supreme Court for Appellant.
Suleman Habib, Additional Advocate-General, Sindh for the State.
Date of hearing: 11th June, 2002.
2004 S C M R 197
[Supreme Court of Pakistan]
Present: Tanvir Ahmad Khan and Khalil-ur-Rehman Ramday, JJ
MUHAMMAD AS LAM- --Petitioner
versus
MUHAMMAD SHAFIQUE and another---Respondents
Criminal Petition for Leave to Appeal No.709/L, of 2001 decided, on 18th April, 2002.
(On appeal from the judgment dated 9-10-2001 of the Lahore High Court, Lahore, passed in Criminal Appeal No.93-J of 1996 and Murder Reference No.224 of 1996).
Penal Code (XLV of 1860)---
----Ss. 302 & 201---Constitution of Pakistan (1973), Art.185(3)--Conversion of sentence from S.302 to 201, P. P.C. ---Validity-, -Dead body of the deceased was recovered from the house at the pointation of accused which was in joint possession of the parties---Record did not show that the said house was in exclusive possession of the accused---No other incriminating evidence was available on record against the accused--Impugned, judgment converting sentence from 5.302 to S.201, P.P.C. did not suffer from any legal infirmity warranting interference by Supreme Court---Leave to appeal was refused to the complainant in circumstances.
Muhammad Hussain Awan, Advocate Supreme Court with C.M Haneef, Advocate-on-Record for Petitioner.
Nemo for Respondents
Date of hearing: 18th April, 2002
2004 S C M R 199
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ
KHALID MEHMOOD and 4 others---Petitioners
versus
THE STATE---Respondent
Criminal Petition No. 15 of 2002, decided on 6th May, 2002.
(On appeal from the judgment of Lahore High Court, Rawapindi Bench dated 4-12-2001 passed in Criminal Appeal "No. 482-T of 2000).
Penal Code (XLV of 1860)---
----Ss. 302(b)/ 149, 396/ 149, 324/ 149, 225/ 149, 337-F(iii)/224/ 109---Anti-Terrorism Act (XXVII of 1997), S.7--Constitution of Pakistan (1973), Art. 185(3)---Contention was that since the Trial Court had convicted and sentenced the accused keeping in view the individual role of each accused, the conviction and sentence awarded to the specified accused under S.302, P.P.C. was not justifiable and that separate conviction and sentence of accused under S.7 of the Anti-Terrorism Act, 1997, was not proper---Leave to appeal was granted to accessed to consider the question of sentence.
Dr. Babar Awan, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioners.
Sardar M. Ishaque Khan, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for the Complainant.
Date of hearing: 6th May, 2002.
2004 S C M R 202
[Supreme Court of Pakistan]
Present: Javed 1qbal and Muhammad Nawaz Abbasi, JJ
MUHAMMAD RAMZAN---Petitioner
versus
THE STATE---Respondent
Jail Petition for Leave to Appeal No.164 of 2001, decided on 3rd July, 2002.
(On appeal from the judgment dated 13-7-2001 passed by Lahore High Court, Bahawalpur Bench, Bahawalpur passed in Criminal Appeal No.38 of 1999).
Penal Code (XLV of 1860)---
----Ss. 302(b)/34---Constitution of Pakistan (1973), ArtA85(3)--Contentions were that the extra-judicial confession and the last seen evidence had been relied upon in contravention of the well-established principles on the subject; that grave contradictions in evidence had been ignored resulting in serious prejudice -to the accused and that the statements of interested witnesses had been relied upon without independent corroboration---Leave to appeal was granted to- accused to consider the said contentions.
Nasreen Akhtar v. State 2000 SCMR 1634 and Muhammad Amin v. The State 2000 SCMR 1784 ref.
Muhammad Siddique Khan, Advocate Supreme Court for Petitioner.
Nemo for the State.
Date of hearing: 3rd July, 2002.
2004 S C M R 204
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, C.J., Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ
MUREED HUSSAIN--Petitioner
versus
THE STATE---Respondent
Jail Petition No.71 of 2001; decided on 1st April, 2002
(On appeal from the judgment dated 3-4-2001 passed by the Lahore High Court, Lahore in Criminal Appeal No.768 of 1995 and Murder Reference No.40 of 1996).
Penal Code (XLV of 1860)---
----Ss.302, 364-A & 201---Constitution of Pakistan (1973), Art .185(3)--Deceased was last seen with the accused before he was found missing--Prosecution witness before whom the accused had made extra-judicial confession had supported the prosecution case in unequivocal terms who had no malice, ill-will or animosity against the accused to falsely implicate him in the case---Accused had pointed out the place where he had thrown the deceased in the canal and had led to the recovery of the shirt of the deceased which had further corroborated the prosecution case---Courts below had correctly appreciated the evidence on record--Impugned judgment was based on good reasons and the law laid down by Supreme Court and was not open to any exception---Leave to appeal was declined to accused accordingly.
.Sardar Muhammad Siddique Khan, Advocate Supreme Court for Petitioner.
Nemo for the State.
Date of hearing: 1st April, 2002.
2004 S C M R 207
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Qazi Muhammad Farooq and Sardar Muhammad Raza Khan, JJ
MUHAMMAD ABBAS ---Appellant
versus
MUHAMMAD YAQOOB and others---Respondents
Criminal Appeal No.289 of 1995, decided on 8th May, 2002
(On appeal from the judgment dated 2-11-1994 passed by the Lahore High Court, Lahore in Criminal Appeal Ko.323 of 1991).
Penal Code (XLV of 1860)----
----S. 302/34---Constitution of Pakistan (1973), Art. 185---Appeal against acquittal---Presence of eye-witnesses at the scene of occurrence was not natural---Recovery of the weapon of offence having been effected in the presence of .the same set of witnesses could not be given any credit--Murder appeared to have taken place somewhere else and the dead body was thrown in the "Nullah", the alleged place of occurrence- --Finding of acquittal recorded by the High Court was in accordance with the principles for safe administration of criminal justice and the same did not suffer from any illegality -Grounds prevailing with the High Court were neither fanciful nor shocking to the conscience---Appeal was dismissed accordingly.
M. Nawaz Bhatti, Advocate Supreme Court for Appellant.
Mian Aftab Farrukh, Advocate Supreme Court for Respondents Nos. l to 3.
Sardar Siddique Khan, Advocate Supreme Court for the. State.
Date of hearing: 8t'h May, 2002.
2004 S C M R 209
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Khalil-ur-Rehman Ramday Faqir Muhammad Khokhar, JJ
KHIZAR HAYAT---Petitioner
versus
NOOR and others---Respondents
Criminal Petition No. 327 of 2001, decided on 24th May, 2002.
(On appeal from the judgment/order dated 27-4-2001 passed by Lahore High Court, Lahore in Criminal Appeal No. 1009 of 1996).
Criminal Procedure Code (V of 1898)---
----S: 417---Constitution of Pakistan (1973), Art. 185(3)---Appeal against acquittal---High Court in the impugned judgment had rightly observed that the appeal arising out of Hudood Law was competent before the Federal Shariat Court against acquittal order passed by the Trial Court--Registrar, Lahore High Court, was directed accordingly to transmit the memo of appeal filed by the petitioner challenging the acquittal order passed by the Judicial Magistrate to the Registrar, Federal Shariat Court, for decision in accordance with law---Petition was disposed of in the said terms.
Muhammad Sharif v. The State PLD 1999 SC 1063 ref.
Ch. Ali Muhammad, Advocate Supreme Court and Syed Abul Asim Jaffri, Advocate-on-Record (absent) for Petitioner.
Munir Ahmad Bhatti, Advocate Supreme Court and Muhammad Aslam Ch., Advocate-on-Record for Respondents Nos. l and 2.
Maqbool Ellahi Malik, Advocate-General, Punjab and A.H Masood, Advocate Supreme Court far the State.
Date of hearing:, 24th May, 2002
2004 S C M R 211
[Supreme Court of Pakistan]
Present: Sardar Muhammad Rata Khan and Faqir Muhammad Khokhar, JJ
MUHAMMAD ASLAM and another---Petitioners
versus
THE STATE---Respondent
Criminal Petition for Leave to Appeal No.694-L of 2000, decided on 24th June, 2002.
(On appeal from the judgment dated 17-10-2000 of the Lahore High Court, Lahore in Criminal Revision No.442 of 2000).
Criminal Procedure Code (V of 1898)---
----S. 514---Penal Code (XLV of 1860), S.302---Constitution of Pakistan (1973), Art. 185(3)---Forfeiture of bond---No lenient view to be taken in the matters of sureties and the entire amount of the bail - bond be recovered as an amount of penalty---Reduction of the amount of penalty to the tune of 1/5th or 1/10th was simply ridiculous and encouraged the people to go into abscondence---Trial Court had already been lenient towards the petitioners in directing to recover a sum of Rs.90,000 as the amount of penalty instead of the sum of Rs.1,00,000 the full amount of the bond---Leave to appeal was refused to petitioners in circumstances.
Zeeshan Kazmi v. The State PLD 1997 SC 267 ref.
Tanvir Ahmad, Advocate-on-Record for Petitioners.
Nemo for the State
Date of hearing: 24th June; 2002.
2004 S C M R 212
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan, Khalil-ur-Rehman Ramday and Falak Sher, JJ
NASIR---Petitioner
versus
THE STATE---Respondent
Criminal Petition for Leave to Appeal No.490-L of 2002, decided on 10th December, 2002.
(On appeal from the order dated 6-2-2002 passed in Criminal Appeal No. 1255 of 2000 by the Lahore High Court, Lahore).
Penal Code (XLV of 1860)---
---Ss.324/109/337-A(i)(ii)/337-F(ii)(vi)---Constitution of Pakistan (1973), Art. 185(3)---Prosecution witnesses including the injured witness had proved the prosecution case to the hilt---Delay in registering the F.I.R. had been amply explained---Ocular testimony was totally in line with medical evidence---No illegality or misreading in the assessment of the prosecution evidence in returning the verdict of guilt was pointed out---High Court had already given concession to the accused by ordering his sentences to ' run concurrently instead of consecutively--- Impugned judgment did not deserve any interference---Leave to appeal was declined to accused accordingly.
Ibne Hassan, Advocate Supreme Court with Muhammad Aslam Chaudhry, Advocate-on-Record for Petitioner.
Nemo for the State
Date of hearing: 10th December, 2002.
2004 S C M R 215
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ
KHAN---Petitioner
versus
SAJJAD and 2 others---Respondents
Criminal Petition No.658-L of 2001 decided on 22nd May, 2002.
(On appeal from the judgment/order dated 17-7-2001 passed by Lahore High Court, Lahore in Criminal Appeal No.698 of 1997).
(a) Constitution of Pakistan (1973)---
----Art.185(3)---Appeal against acquittal---High Court had dismissed the appeal of the complainant after examining the evidence on record and attending the case from all possible angles, giving cogent reasons---Appellate Court while dealing with acquittal order had to exercise jurisdiction cautiously because the acquitted accused enjoyed double presumption of innocence, the one available to him before conclusion of the trial and the second after the verdict of acquittal in his favour---If at all the Appellate Court decided to interfere with the acquittal order, it should strictly follow the principles laid down in this behalf from time to time by the superior Courts for the guidance of the Courts seized of the matter---Impugned order passed by High Court did not warrant/interference to appeal was declined to complainant accordingly.
Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11; Khadim Hussain v. Manzoor Hussain Shah and 3 others.
2002 SCMR 261 and Munawar Shah v. Liaquat Hussain and others 2002 SCMR 713 ref.
(b) Criminal Procedure Code (V of 1898)---
----S. 417---Appeal against acquittal---Principle---Appellate Courts in appeals filed against acquittal orders have to exercise jurisdiction cautiously because the accused who has been exonerated from the criminal charge enjoys double presumption of innocence, the one available to him before the conclusion of the trial and the second after the verdict of the Court declaring him not guilty---Where, however, the Appellate Court comes to conclusions to interfere in the acquittal order, it should strictly follow the, principles laid down in this behalf from lima to time by superior, Courts for guidance of the Courts seized of the matter.
Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11; Khadim Hussain v. Manzoor Hussain Shah and 3 others 2002 SCMR 261 and Munawar Shah v. Liaquat Hussain and others 2002 SCMR 713 ref.
Ihsanullah Khan Lilla, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 22nd May, 2002.
2004 S C M R 217
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ
MUHAMMAD AYYUB---Petitioner
versus
THE STATE---Respondent
Criminal Petition No. 153-L of 2002, decided on 20th March, 2002.
(On appeal from the judgment, dated 29-11-2001 of the Lahore High Court, Lahore passed in Criminal Appeal No. 1316 of 2000).
Constitution of Pakistan (1973)--
----Art. 185(3)---Petition for leave 'to appeal was barred by 68 days--Condonation of delay, application for---Act of the employee of the Lahore High Court Bar Association who was deemed to be the agent of the counsel of the accused being Member of the Bar, in not delivering the cause list in the office of the said counsel could not be considered as a valid ground in law for condonation of delay---Grounds mentioned in the application for condonation of delay, therefore, were not sufficient within the contemplation of sufficient ground as envisaged by law declared by the superior Courts---Application for condonation of delay was dismissed accordingly resulting in the dismissal of main petition as barred by time---Leave to appeal was refused.
Irshad Ahmad Qureshi, Advocate Supreme Court with Faiz-ur-Rehman, Advocate-on-Record for Petitioner.
Nemo for Respondent.
Date of hearing: 20th March, 2002.
2004 S C M R 218
[Supreme Court of Pakistan]
Present: Hamid Ali Mirza and Sardar Muhammad Raza Khan, JJ
MUHAMMAD AKRAM---Petitioner
versus
MUHAMMAD HALEEM alias HAMAYUN and others---Respondents
Criminal Petition for Leave to Appeal No.97 of 2002, decided on 27th May, 2002.
(On Appeal from the judgment, dated 16-1-2002 in Criminal Revision No.73 of .2001 passed by the Lahore High Court Rawalpindi Bench, Rawalpindi)
Juvenile Justice System Ordinance (XXII of 2000)---
----S. 7--Penal Code (XLV of 1860), Ss.302/364/109---Constitution of Pakistan (1973), Art.185(3)---Trial Court after holding an enquiry without ossification test had found the accused under 18 years of age at the time of occurrence and directed him to be tried by the Juvenile Court---Complainant's revision petition against the said order had been dismissed by the High Court through the impugned order---Supreme Court in the interest of justice and the legal pleas raised in the matter remanded the case- to the Trial Court to re-determine the age of the accused in terms of section 7 of the Juvenile Justice System Ordinance, 2000, so as to avoid future complications in the trial of the case and to decide the matter in accordance with law---Petition was disposed of accordingly.
Raja M. Ibrahim Satti, Advocate Supreme Court with Ch. Muhammad Akram, Advocate-on-Record for Petitioner.
Raja Abdul Ghafoor, Advocate-on-Record for the Complainant
M. Zaman Bhatti, Advocate Supreme Court for the State.
Date of hearing: 27th May; 2002.
2004 S C M R 220
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ
MUKHTAR AHMED ---Petitioner
versus
THE STATE---Respondent
Criminal Petition No.789-L of 2001, decided on 21st March, 2002.
(On appeal from the judgment, dated 7-11-2001 of the Lahore High Court, Lahore passed in Criminal Appeal No.23 of 1996 and Murder Reference No.328 of 1997).
Penal Code (XLV of 1860)---
----S. 302(b)---Constitution of Pakistan (1973), Art.185(3) --- Presence of' eye-witnesses on the spot at the relevant time was proved ---Ocular account inspired confidence and was sufficient to bring home guilt to the accused---No empty having been recovered from the place of occurrence, non-recovery of the weapon of offence was not fatal to the prosecution case---Conviction and sentence of death of accused had been recorded on correct and elaborate appraisal of evidence which did not suffer from any legal infirmity---Leave to appeal was refused to accused accordingly.
Rana Muhammad Arif, Advocate Supreme Court with Ch Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.
Nemo for Respondent
Date of hearing: 21st March, 2002
2004 S C M R 222
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ
MUHAMMAD ARSHAD---Petitioner
versus
THE STATE and another---Respondents
Criminal Petition for Leave to Appeal No. 15-L of 2001, decided on 12th March, 2002.
(On appeal from order, dated 13-9-2001 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No. 1848/13C of 2000).
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 18.60), S.302---Constitution of Pakistan (1973), Art. 185(3)---Bail---High Court had considered the entire material evidence which, prima facie, showed that the accused was involved in the crime and his bail was rightly recalled by the High Court with sound and cogent reasons---No misreading or non-reading of evidence was found---High Court had rightly exercised its discretionary power which did not require any interference by Supreme Court at such stage---Leave to appeal was declined to accused in circumstances.
Ch. Rashid Ahmed, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.
Nemo for Respondents
Date of hearing: 12th March, 2002
2004 S C M R 224
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ
MUHAMMAD NAWAZ and others---Petitioners
versus
THE STATE and 5 others---Respondents
Criminal Petition Nos.503-L and 514-L of 2001, decided on 26th March, 2002.
(On appeal from the judgment of the Lahore High Court, Lahore, dated 31-5-2001 passed in Criminal Appeal No.685 of 1996 and Criminal Revision Nos313 and 310 of 1996).
Penal Code (XLV of 1860)---
----Ss. 302, 324 & 337-F(i)---Constitution of Pakistan (1973), Art. 185(3)---Sentence---Accused had fired with guns on a petty matter of opening and closing a drain situated in front of the house---High Court had given cogent reasons based on correct, elaborate and careful appraisal of evidence to support its -judgment which satisfied the requirements of principles laid down by the Superior Courts for safe administration of criminal justice---Benefit of sudden fight had already been given to the accused by holding that the provisions of section 34, P.P.C. were not attracted---Use of gun by the accused sentenced to death was not justified over such a petty matter---No case had been made out for enhancement of sentence of two accused as modified by the High Court and against the acquittal of the acquitted accused--Leave to appeal was refused in both the petitions in circumstances.
Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court with Syed Abul Aasim Jafri, Advocate-on-Record for Petitioner in Criminal Petition No.503-L of 2001.
Syed Zahid Hussain Bokhari, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Respondents in Criminal Petition No.503-L of 2001.
Syed Zahid Hussain Bokhari, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner in Criminal Petition No.514-L of 2001.
Date of hearing: 26th March, 2002
2004 S C M R 228
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ
MUHAMMAD ASLAM and others---Petitioners
versus
THE STATE---Respondent
Criminal Petition for Leave to Appeal No.317-L of- 2001, decided on 2nd April, 2002.
Constitution of Pakistan (1973)---
----Art. 185(3)---Criminal Procedure. Code (V of 1898), S.426---Leave to appeal was granted to reappraise the evidence to satisfy whether the conviction recorded by the Courts below and the sentence awarded to the accused was sustainable---Sentence of accused who was 83 years of age at the time of occurrence and at present was 96 years old, was suspended and he was released on bail in view of leave to appeal having been granted in the case.
Shahid Hussain Qadri, Advocate Supreme Court, Shehzad Shoukat, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioners.
Zafarullah Cheema, Advocate Supreme Court with C.M. Latif, Advocate-on-Record for the Complainant.
Ch. Nasim. Sabir, Additional A.-G. for Respondents.
Date of hearing: 2nd April, 2002.
2004 S C M R 229
[Supreme Court of Pakistan]
Present: Javed Iqbal and Tanvir Ahmad Khan, JJ
MEHRBAN ALI ---Petitioner
versus
THE STATE and another---Respondents
Criminal Petition for Leave to Appeal No.369-L of 2002, decided on 22nd May, 2002.
(On appeal from the order, dated 9-5-2002 of the Lahore High Court, Lahore, passed in Criminal Miscellaneous 'No.655/CB of 2002).
Criminal Procedure Code (V of 1898)--- .
----S. 497---Penal Code (XLV of 1860), Ss.420/467/468/471--Constitution of Pakistan (1973), Art.185(3)---Bail---Serious allegations of fraud, forgery and extortion had been levelled against the accused which were not without substance---Complainant had been allegedly deprived from immovable property worth lacs of rupees on the basis of forgery and fake documents allegedly prepared by the accused ---Power of-attorney executed by the complainant in favour of accused had been withdrawn for certain obvious reasons---Prima facie a case against the accused had been made out---Impugned order passed by High Court cancelling the bail granted to accused by the Sessions Court did not call for any interference--Leave to appeal was refused to accused in circumstances and bail was declined to him accordingly.
Rafiq Javed Butt, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record (Absent) for Petitioner.
Nemo for Respondents.
Date of hearing: 22nd May, 2002.
2004 S C M R 231
[Supreme Court of Pakistan]
Present: Javed Iqbal and Tanvir Ahmad Khan, JJ
MUZAFFAR IQBAL---Petitioner
versus
MUHAMMAD IMRAN AZIZ and others---Respondents
Criminal Petition No. 117-L of 2002, decided on 16th May, 2002.
(On appeal from the order, dated 21-1-2002 passed by Lahore High Court, Bahawalpur Bench, in Criminal Miscellaneous No. 1077/13 of 2002(BWP).
(a) Criminal Procedure Code (V of 1898)---
----S. 497(5)---Penal Code (XLV of 1860), 5.302---Constitution of Pakistan (1973), Art.l85(3)---Cancellation of bail---High Court while granting bail to accused had exercised its discretion properly and in accordance with the settled norms of justice---Strong and exceptional grounds warranting interference were lacking---Consideration for cancellation of bail were different from the considerations for grant of bail---Section 497(5), Cr.P.C. did not command the Court to cancel the bail even when the offence was punishable with death or imprisonment for life---Case was not fit for cancellation of bail---Leave to appeal was refused to the complainant accordingly.
Falak Sher v. The State 1979 SCMR 103 and Mian Dad v. The State 1992 SCMR 1289 ref.
(b) Criminal Procedure Code (V of 1898)---
----Ss. 497(5) & 497(1)---Cancellation of bail ---Principles---Consideration for cancellation of bail are different from the considerations for the grant of bail---Section 497(1), Cr.P.C. prohibits the grant of bail for offences punishable with death or imprisonment of 10 years or over--Section 497(5), Cr.P.C. does not command the Court to cancel the bail even when the offence is punishable with death or imprisonment for life, and even if the grant of bail is prohibited under section 497(1), Cr.P.C., the discretion is left in the Court under section 497(5), Cr.P.C., which is "pari materia" with the principles which apply to the setting aside of the orders of acquittal.
Mian Dad v. The State 1992 SCMR 1289 ref.
Ch. Imtiaz Ahmad, Senior Advocate Supreme Court with Tangy it Ahmed, Advocate-on-Record for Petitioner.
Masood Ahmed Bajwa, Advocate Supreme Court for Respondents.
S.D. Qureshi, Advocate Supreme Court for the State.
Date of hearing: 16th May, 2002.
2004 S C M R 233
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, Rashid Aziz Khan and Tanvir Ahmad Khan, JJ
Sheikh MUKHTAR and others---Petitioners
versus
THE STATE---Respondent
Criminal Petition for Leave to Appeal No.365-L of 2000 decided on 18th December, 2000.
(On appeal from the judgment, dated 3-5-2000 of tire Lahore High Court Multan Bench, Multan passed in Criminal Appeal No.242 of 1989).
Penal Code (XLV of 1860)---
----Ss. 409/468/471---Prevention of Corruption Act (II of 1947), S.5(2)---Recovery of 100 bags of embezzled cement from the accused had been proved which could not have been planted .in collusion of other officials---None of the accused had claimed that the said bags of cement belonged to him---Petition had no merit---Leave to appeal was refused to accused accordingly.
Asghar Ali Rokhri, Advocate Supreme Court with Mahmudul Islam, Advocate-on-Record for Petitioners.
Nemo for Respondent.
Date of hearing: 18th December, 2000 (Lahore).
2004 S C M R 235
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Javed Iqbal and Faqir Muhammad Khokhar, JJ
FAZAL ELLAHI and another---Petitioners
versus
THE STATE---Respondent
Criminal Petition for Leave to Appeal No. 143 of 2002 decided on 18th July, 2002.
(On appeal from the judgment/order, dated 12-4-2002 passed by Lahore High Court, Rawalpindi Bench in Criminal Miscellaneous No.295/B of 2002).
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss.420/467/468/471--Constitution of Pakistan (1973), Art.185(3)---Bail---Accused were in custody for the last more than five months---Investigation in the case had been completed and they were no more required by the Investigating Agency---Challan had been submitted in the Court and keeping .the accused in custody would serve no purpose---Petition for leave to appeal was converted into appeal in circumstances and the accused were admitted to bail accordingly.
M.A. Zafar, Advocate Supreme Court for Petitioners.
Dil Muhammad Tarrar, Advocate Supreme Court for the State
Date of hearing: 18th July, 2002.
2004 S C M R 236
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, C.J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ
BASHIR AHMED ---Petitioner
versus
THE STATE and another---Respondents
Criminal Petition No. 129 of 2002, decided on 8th May, 2002.
(On appeal from the judgment of Lahore High Court, Multan Bench, dated 3-2-1999 passed in Criminal Miscellaneous No. 155/M of 1997 (Criminal Appeal No.279 of 1989 and Murder Reference No.279 of 1989).
(a) Penal Code (XLV of 1860)---
----Ss. 309, 3r0 & 302---Waiver or compounding of Qisas in Qatl-i-Amd---Provisions of Ss. 309,. P.P.C. and 310, P.P.C. 'are applicable only in cases of Qisas and not in the cases in which conviction and sentence is awarded as Tazir.
Muhammad Aslam v. Shaukat Ali 1997 SCMR 1307 ref.
(b) Criminal Procedure Code (V of 1898)---
----S. 345(2)---Penal Code (XLV of 1860), S.302---Compounding of offences---The sentence awarded for murder as Tazir can be compounded by all the legal heirs of the deceased with the permission of the Court in view of the amendment made in S.345(2), Cr.P.C.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b), 309 & 310---Criminal Procedure Code (V of 1898), 5.345(2)---Constitution of Pakistan (1973), Art. 185(3)---Partial compromise---Accused had been awarded death: sentence under S.302(b), P.P:-C. as Tazir, therefore, he could not be extended the benefit of the provisions of Ss. 309 & 310, P.P.C., even for the purpose of lesser sentence on the ground that one of the Walis of the deceased had forgiven him---Favour extended to the accused of forgiveness by his daughter, one of the Walis of the deceased, could not save him from death penalty---Leave to appeal was refused to accused accordingly.
Muhammad Aslam v. Shaukat Ali 1997 SCMR 1307 ref.
Khadim Nadeem Malik, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 8th May, 2002.
2004 S C M R 239
[Supreme Court of Pakistan]
Present: Tanvir Ahmad Khan, Khalil-ur-Rehman Ramday and Falak Sher, JJ
HAROON GUL alias JAMSHED GUL---Petitioner
versus
THE STATE---Respondent
Criminal Petition for Leave to Appeal No.663-L of 2002, decided on 10th December, 2002.
(On appeal from the judgment, dated 12-7.-2002 of the Lahore High Court, Lahore passed in Criminal Appeal No.419 of 2001).
Penal Code (XLV of 1860)--- .
----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Sentence--Accused and the deceased were living in the same area quite adjacent to each other---Although the motive as set up by the prosecution was not proved on record, yet similarly the accused did not produce any evidence regarding the disrespectful utterances allegedly made by the deceased against the Holy Prophet (P.B.U.H.)---Accused had also stated that the deceased had repeated -the same utterances, but nobody had come forward to substantiate this statement---Prosecution had,- thus, established the case against the accused---High Court had given weighty reasons for maintaining the sentence awarded to the accused by the Trial Court---No illegality or legal infirmity could be pointed out in the impugned judgments warranting interference by Supreme Court---Leave to appeal was refused accordingly.
Sardar Muhammad Latif Khosa, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.
Nemo for Respondent.
Date of hearing: 10th December, 2002
2004 S C M R 243
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Qazi Muhammad Farooq and Faqir Muhammad Khokhar, JJ
BAZ MUHAMMAD and another---Petitioners
versus
THE STATE through National Accountability Bureau, Quetta ---Respondent
Criminal Petitions Nos.53-Q and 235 of 2001, decided on 28th May, 2002.
(On appeal from the judgment, dated 13-9-2001 of the High Court of Balochistan, Quetta, passec4 in Criminal. Ehtesab Appeals Nos. 16 and I'7 of 2001).
National Accountability Ordinance (XVIII of 1999)---
----S. 10---Constitution of Pakistan (1973), Art. 185(3)---heave to appeal was granted to reappraise the evidence and to examine whether the findings recorded by the Courts below against the accused about this conviction satisfied the requirements of the principles for safe administration of criminal justice, as it was contended that it was a case of no evidence---Accused had already served out their substantive sentences, and their sentences in default of payment of fine were suspended and they were admitted to bail in view of grant of leave to appeal to them.
Syed Ayaz Zahoor, Advocate Supreme Court for Petitioner in Criminal Petition No.5.3-Q of 2001.
M. Siddique Khan; Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Petitioner in Criminal Petition No.235 of 2001.
M.S. Rakhshani, Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for the State.
Date of hearing: 28th May, 2002.
2004 S C M R 244
[Supreme Court of Pakistan]
Present: Javed Iqbal and Tanvir Ahmad Khan, JJ
BASHIR AHMAD---Petitioner
versus
THE STATE---Respondent
Criminal Petition for Leave to Appeal' No.315-L of 2002, decided on 22nd May, 2002.
(On appeal from the order, dated 3-4-2002 of the Lahore High Court, Multan Bench, passed in Criminal Miscellaneous No.617/B of 2002).
Criminal Procedure Code (V of 1898)---
----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance, (VII of 1979),.Ss.10/11---Constitution of Pakistan (1973), Art. 185(3)---Bail--Question of guilt or innocence of accused could not be decided while ' deciding his bail application as it would depend upon the evidence yet to be recorded in the case---Delay in lodging the F.I.R. had been reasonably explained---Case of co-accused already enlarged on bail was distinguishable as no overt act had been attributed to him ---Nikahnama alone could not be the ground for releasing the accused on bail as its authenticity and genuineness was yet to be examined which had been refused by the victim---Poor and helpless girl had been forcibly abducted and subjected to Zina-bil-Jabr and her entire life had been ruined---Had the victim been a consenting party she would not have run from pillar to post to get the case registered---Leave to appeal was refused to accused in circumstances and bail application was dismissed accordingly.
Abdul Sadiq Chaudhry. Advocate Supreme Court with Muhammad Adam Chaudhry, Advocate-on-Record (Absent) for Petitioner.
Nemo for Respondent.
Date of hearing: 22nd. May, 2002.
2004 S C M R 246
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ
IBRAR HUSSAIN and others---Petitioners
versus
THE STATE---Respondent
Criminal Petition for Leave to Appeal No.711-L of 2001 and Jail -Petition No. 190 of 2001, decided on 23rd May, 2002.
(On appeal from the judgment/order, dated 10-10-2001 passed by Lahore High Court, Lahore in Criminal Appeal No.2022 of 1999).
Penal Code (XLV of 1860)---
----Ss. 302/34---Constitution of Pakistani (1973), Art. 185(3)---Leave to appeal was granted by :the Supreme Court in both the petitions for reappraisal of evidence after hearing the counsel for the accused and perusing the record as well as the judgments of the Courts below.
Muhammad Afzal Wahlah, Advocate Supreme Court with M.A. Qureshi, Advocate-on-Record for Petitioners in Criminal Petition No. 711 /L of 2001.
Shaukat Haroon, Advocate Supreme Court for Petitioners in Jail Petition No. 190 of 2001.
Date of hearing: 23rd May, 2002
2004 S C M R 249
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Tanvir Ahmad Khan and Khald-ur-Rehinan Ramday, JJ
BARKAT ALI ---Petitioner
versus
SHAUKAT ALI and others---Respondents
Criminal. Petition for Leave to Appeal No.718-L of 2000, decides 31st May, 2002.
(On appeal from the judgment/order, dated 7-8-2001 passed by Lahore High Court, Lahore in Criminal Appeal No. 122 of 1992).
(a) Penal Code (XLV of 1860)---
----Ss. 302/34--Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---Courts below after having thoroughly examined the evidence on record had unanimously concluded that the prosecution had failed to establish accusation against the accused-Court in an appeal against acquittal was bound to see as to whether there was any piece of evidence which had not been considered or the evidence brought on record had been discarded for the reasons which were not recognized under the law---High Court as well as Trial Court had fully taken into consideration the prosecution evidence and no piece of evidence had been brushed aside for any extraneous consideration and finally concluded that the accused were not guilty of the offence charged---Impugned judgment, therefore, was not open to any exception---Leave to appeal was declined accordingly.
(b) Criminal Procedure Code (V of 1898)---
----S. 417---Penal Code (XLV of 1860), Ss.302/34---Appeal against acquittal---Practice and procedure---Accused after his acquittal from the criminal charge enjoys double presumption of innocence, one before the trial of the case and second after his acquittal---Courts while dealing with an acquittal appeal, therefore, are bound to examine whether Court below had not ignored any evidence on record or had discarded any evidence for the reasons not recognized by law.
Rana Muhammad Zahid, Senior Advocate Supreme Court with S. Abul Asim Jafri, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 31st May, 2002.
2004 S C M R 252
[Supreme Court of Pakistan]
Present: Tanvir Ahmad Khan, Khalil-ur-Rehman Ramday and Falak Sher, JJ
ANWARUL HAQ---Petitioner
versus
THE STATE --- Respondent
Criminal Petition for Leave to Appeal No.744-L of 2002; decided on 13th December, 2002.
(On appeal from the judgment, dated 8-7-2002 passed in Criminal Appeal No.228/J of 2001 by the Lahore High Court, Lahore).
Penal Code (XLV of 1860)---
-----S. 302(b)---Constitution of Pakistan (1973), Art. 185(3)---Occurrence had taken place in broad-daylight and the F.I.R. was recorded with promptitude---Parties being known to each other prior to the incident, no question of mistaken identity of accused could arise---Eye-witnesses were natural witnesses of the occurrence who had given plausible explanation for their presence at the spot and they had "no reasons for false implication of accused in an offence entailing capital punishment--Ocular account was corroborated by medical evidence and inspired confidence---No misreading of evidence was pointed out in the case--Leave to appeal was refused to accused in circumstances.
Malik Anljad Pervaiz, Advocate Supreme Court with Walayat Umer, Advocate-on-Record for Petitioner.
Nemo for Respondent.
Date of hearing: 13th December, 2002.
2004 S C M R 254
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Actg. C.J., Iftikhar Muhammad Chaudhry and
Faqir Muhammad Khokhar, JJ
ABID HUSSAIN---Appellant
versus
THE STATE---Respondent
Criminal Appeal No.314 of 2000, decided on 19th September, 2002.
(On appeal from the judgment, dated 24-5-1999 passed by High Court of Sindh in Criminal Appeals Nos. 152 of 1998(Karachi) 72 of 1998(Hyd.) and Jail Criminal Appeal No. 150 of 1998).
Penal-Code (XLV of 1860)---
----S. 365---Appraisal of evidence---Sentence, reduction in---Accused had been convicted and sentenced in absentia by the Trial Court under S.365, P.P.C. to imprisonment for life and a fine of Rs.4,00,000 or in default to undergo six months' R.I.---Co-accused were also convicted- and sentenced by Trial Court in the same manner, but High Court in appeal had reduced their sentence to seven years' R.I. and a fine of Rs.25;000; but the sentence of accused was maintained through the impugned judgment---Case of accused according to record was, similar to that of the said co-accused and no discrimination, therefore, could have been made, in respect of award of sentence--Conviction of accused was consequently maintained, but his sentence was also reduced to seven year' R.I. and a fine of Rs.25,000 with benefit of 5.382-B, Cr.P.C.---Appeal was disposed of accordingly.
M.S. Khattak; Advocate-on-Record for Appellant.
Suleman Habibullah, Additional A.-G. Sindh for Respondent.
M. Zaman Bhatti, Advocate Supreme Court with Ch. Muhammad Akram, Advocate-on-Record for Respondents on Court notice.
Date of hearing: 19th September, 2002.
2004 S C M R 256
[Supreme Court of Pakistan]
Present: Tanvir Ahmad Khan, Khalil-ur-Rehman Ramday and Falak Sher, JJ
AZHAR ABBAS ---Petitioner
versus
THE STATE---Respondent
Criminal petition for Leave to Appeal No.773-L of 2002, decided on 16th December, 2002.
(On appeal from the judgment, dated 26-8-2002 passed in Criminal Appeal No. 16 of 2002 by Lahore High Court, Lahore).
Prevention of Corruption Act (II of 1947)---
----S. 5(2)--Penal Code (XLV of 1860), S.161---Constitution of Pakistan (1973), Art. 185(3)---Defence witness and the Revenue Officer as a Court witness had categorically stated in an open "Jalsa-e-Aam" that the consideration price of the land mentioned by the parties was Rs.90,000--Complaint had been presented by the complainant after filing of the pre-emption suit against him---Complainant had kept quiet all this period and simply to strengthen his case of pre-emption filed against him, he had manoeuvred the filing and registration of the case against the accused--Prosecution had not examined the vendor of the land---Courts below had not at all adverted to the defence version in its proper perspective--Prosecution had failed to establish the guilt against the accused---Petition for leave to appeal was converted into appeal in circumstances and accused was acquitted accordingly.
Sh. Naveed Shahryar, Advocate Supreme Court for Petitioner.
S.D..Qureshi, Advocate Supreme Court for Respondent.
Date of hearing: 16th December, 2002.
2004 S C M R 258
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Tanvir Ahmad Khan, JJ
MUHAMMAD NAWAZ and others---Petitioners
versus
THE STATE and others---Respondents
Criminal Petition for Leave to Appeal No.806-L of 2001, decided on 14th December, 2001.
(On appeal from the order, dated 10-12-2001 of the Lahore High Court, Lahore, passed in Criminal Miscellaneous No. 1737/H of 2001).
Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---
----S. 11---Criminal Procedure Code (V of 1898), S.491---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider whether the proceedings in the Habeas Corpus petition as a whole were maintainable in the facts and circumstances of the case ---Abductee was directed to remain in Dar-ul-Aman as directed by the High Court, but the order for constitution of Board of Doctors for examining her age was suspended---Order of grant of pre-arrest protective bail to the accused by the High Court was recalled and further proceedings in the Habeas Corpus petition and the connected applications were stayed till the final disposal of the appeal.
Ch. Ali Muhammad, Advocate Supreme Court with Walayat Umar Chaudhry, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 14th December, 2001.
2004 S C M R 261
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJ
MEHBOOB Ali and another---Petitioners
versus
THE STATE---Respondent
Criminal Petition for Leave to Appeal No.29-K of 2000, decided on 26th June, 2000.
(On appeal from the order, dated 24-4-2000 of High Court of Sindh, Sukkur Bench, passed in Criminal Transfer Application No.7 of 2000).
Criminal Procedure Code (V of 1898)---
----S. 526---Penal Code (XLV of 1860), Ss.302/34/337-A(i)---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Transfer of case--Grievance of the accused was that the Trial Court on the specified date had adjourned all the cases except their case---High Court while dealing with this contention had observed that the Trial Court had been directed to dispose of the matter without delay and its act of not adjourning the matter was in consonance with the direction given by High Court---High Court was also of the opinion that the accused were interested in prolonging the proceedings as much as possible---Accused, according to complainant's counsel, were adopting delaying tactics and were creating hurdles in final disposal of the case on merits---Impugned order of High Court refusing to transfer the case was not open to any exception---Leave to appeal was refused to accused accordingly.
Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioners.
Gul Bahar Korai, Advocate Supreme Court for the Complainant.
Nemo for Respondent
Date of hearing: 26th June, 2000.
2004 S C M R 262
[Supreme Court of Pakistan]
Present: Tanvir Ahmad Khan, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ
Mst. JAMILA BIBI---Petitioner
versus
MUHAMMAD LATIF and others---Respondents
Criminal Petition for Leave to Appeal No.606-L of 2001, decided on 24th April, 2002.
(On appeal from the judgment, dated 30-7-2001 of the Lahore High Court, Lahore, passed in Criminal Appeal No.646 of 2001).
Penal Code (XLV of 1860)---
----Ss. 302/34---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---Incriminating recovery effected in the case could not be used against the acquitted accused ---D.S.P. as well as the Investigating Officer had deposed on record that the plea of alibi taken by the accused was found favourable and the Investigating Agency had recommended for their discharge---Motive alleged by the prosecution was towards the absconding co-accused and the present accused had no relationship with him or any semblance of enmity against the deceased--Courts below had thoroughly scanned the evidence and the conclusions arrived at by them did not call for and interference---Leave to appeal was refused to the complainant in circumstances.
Malik Amjad Pervaiz, Advocate Supreme Court with C.M Lateef, Advocate-on-Record for Petitioner.
Nemo for Respondents
Date of hearing: 24th April, 2002
2004 S C M R 265
[Supreme Court of Pakistan]
Present: Rana Bhagwandas, Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ
Sardar AHMED SIYAL and others---Petitioners
versus
NATIONAL ACCOUNTABILITY BUREAU
through Chairman and 4 others---Respondents
Civil Petitions for Leave to Appeal Nos.957-K of 2001 and 44-K of 2002, decided on 14th May, 2002.
(On appeal from judgments dated 31-10-2001 and 24-12-2001 passed by the High Court of Sindh, Hyderabad Circuit, Hyderabad in Constitutional Petitions Nos.D-638 and D-558 of 2001).
(a) National Accountability Ordinance (XVIII of 1999)---
----S.16-A(a)---Constitution of Pakistan (1973), Art. 185(3)---Transfer of case to Accountability Court on the request of Chairman, National Accountability Bureau under S.16-A, National Accountability Ordinance, 1999---Chairman, National Accountability Bureau requesting Special Judge Anti-Corruption for transfer of cases pending against the petitioners to the Accountability Court on the ground that the offences alleged against them were scheduled offences---Special Judge passed a detailed order of transfer with reasons directing the office to send the record and proceedings of the said cases to the Accountability Court--Contention of the petitioners was that Special Judge passed the order of transfer without issuance of any show-cause notice to the petitioners/ accused in the cases pending before the said -Court---Validity---Law did not require that order of transfer of case to the Accountability Court can be passed only after notice to the accused---Intention of the Legislature was rather patently clear and certain from the non obstante clause at the commencement of S.16-A(a) of the Ordinance---Provision of S.16-A of the National Accountability Ordinance, 1999 had the overriding effect over the general law---Principles. .
Section 16-A of. National Accountability Ordinance, 1999 clearly tends to show that notwithstanding anything contained in any other law for the time being in force, the Chairman, National Accountability Bureau may apply to any Court of law or Tribunal for transfer of the case involving a scheduled offence pending before such Court or Tribunal and, on receipt of such application, such Court or Tribunal shall transfer the said case to any Court established under the Ordinance.
It would appear that the object of the special law is to expedite the disposal of cases involving corruption, corrupt practices, misuse of power, misappropriation of property and matters connected thereto under the Ordinance and to avoid procedural delays and technicalities. . The language of the provision unequivocally reflects the intention of the Legislature that the provision is self-contained and self-executory leaving no option for the Court before whom cases involving scheduled offences are pending but to transfer the same. 1 is rather imperative to accede to such request unless it can be shown to the satisfaction of the Court that the offence against the accused does not fall amongst the offences included in the Schedule. On no other ground can a Court turn down a request for transfer of a pending case to Accountability Court on an application made by the Chairman, NAB under the Ordinance. This being the position in law, and the object of the Legislature, the submission that the transferor Court in all fairness and reasonableness ought to have given notice of transfer to the petitioners, was not impressive. It is not the requirement of law under the Ordinance that such order can be passed only after notice to the accused. Intention of the Legislature is rather patently clear and certain from the non obstante clause at the commencement of the provision. In fact the provision has the overriding effect over general law.
(b) National Accountability Ordinance (XVIII of 1999)---
----Ss.3 & 17---Criminal Procedure Code (V of 1898), Preamble--Provisions of National Accountability Ordinance, 1999 shall have effect notwithstanding anything contained in any other law for the time being in force---Provisions of National Accountability Ordinance, 1999 have overriding effect to the extent of any inconsistency and provisions of the Ordinance shall prevail over the procedure provided in Criminal Procedure Code, 1898.
(c) National Accountability Ordinance (XVIII of 1999)---
----S.16-.A--Constitution of Pakistan (1973), Art.185(3)---Transfer of case from Court of Special Judge to the Accountability Court on the request of Chairman of National Accountability Bureau under S.16-A, National Accountability Ordinance, 1999---Validity---Contention was that if the Division Bench of the High Court had not agreed with the reasoning and the conclusion arrived at in an earlier case, it should have referred the case for decision by a larger Bench which course had not been adopted--- -Contention might not be untenable but the fact remained that such course of action was not adopted---Nevertheless, conflict of opinion would not vitiate the- impugned judgment or alter the legal position---Question involved in the petition for leave to appeal related to change of forum, and the conclusion arrived at by the High Court in the impugned judgments was neither arbitrary nor inconsistent with the settled principles of law---High , Court [tad already dealt with tote submissions with regard to the change of forum and deviation from the principles of natural justice, which did not call for any interference by the Supreme Court---Petition for leave to appeal against order of High Court was dismissed by the Supreme Court.
Abdul Rahim Qazi, Advocate Supreme Court and Miss Wajahat. Niaz, Advocate-on-Record for Petitioners (in C.P. No.957-K of 2001).
Nemo for Respondents.
Abdul Rahim Qazi, Advocate, Supreme Court for Petitioners (in C.P. No.44-K of 2002).
Nemo for Respondents.
Date of hearing: 14th May, 2002.
2004 S C M R 270
[Supreme Court of Pakistan]
Present: Hamid Ali Mirza, Abdul Hameed Dogar and
Faqir Muhammad Khokhar, JJ
ADDITIONAL DEPUTY COMMISSIONER (GENERAL), FAISALABAD and another---Petitioners
versus
FAZAL MUHAMMAD KHAN---Respondent
Civil Petition No.2571-L of 2001, decided on 30th October, 2003.
(On appeal from the' judgment dated 21-5-2001 of the Lahore High Court, Lahore, passed in Writ Petition No.103-R of 2000).
Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---
----S.2---Civil Procedure Code (V of 1908), S.12(2)---Constitution of Pakistan (1973), Art.185(3)---Allotment order, setting aside of---Passing of order after repeal of evacuee laws---Order for allotment of land was assailed by the Provincial Government and the same was sought to be set aside under S.12(2) C.P.C. on the ground that the order was procured by fraud and forgery---Respondent raised the objection to the maintainability of the application under S.12(2) C. P. C. on the ground that the Provincial Government was in the knowledge of whole proceedings before the Authority---Objection raised by respondent was dismissed by the Authority---High Court, in exercise of Constitutional jurisdiction, allowed the Constitutional petition and the application under S.12(2), .C,P,C. was dismissed---Validity---Provincial Government had the knowledge of entire litigation, as such, the application in question being belatedly filed was rightly dismissed as time-barred---No further appeal, revision or review was maintainable against the order of the Notified Officer under Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975---All the earlier Acts in field with regard to evacuee property were repealed by Evacuee Property, and? Displaced Persons Laws (Repeal) Act, 1975, and all proceedings which immediately before such repeal were pending before the Authorities appointed thereunder were transferred for final disposal to such officers as were notified by the Provincial Government in the official Gazette---After repeal of evacuee laws, all such cases remanded by the superior Courts to the officer Notified were to be disposed of in accordance with law---Order of allotment was passed by -Additional Deputy Commissioner (G)/ Deputy Settlement, Commissioner, who was neither a Notified Officer nor authorized by any superior Court to decide the matter, as such, was not competent to decide the application in question---High Court had rightly, accepted the Constitutional petition and dismissed the application under S.12(2), C.P.C. filed by the Provincial Government---Leave to appeal was refused.
Malik Muhammad Nawaz, Advocate Supreme Court for Petitioners.
Najamul Hassan Kazmi, Advocate Supreme Court for Respondent.
Date of hearing: 30th October, 2003.
2004 S C M R 275
[Supreme Court of Pakistan]
Present: Javed Iqbal and Karamat Nazir Bhandari, JJ
UMAR DRAZ---Petitioner
versus
THE STATE---Respondent
Criminal Petition No.206-L of 2003, decided on 4th June, 2003.
(On appeal from the judgment dated 21-2-2003 passed by Lahore High Court, Lahore, in Criminal Appeal No. 1793 of 2000).
(a) Penal Code (XLV of 1860)---
----Ss.468, 471 & 419---Prevention of Corruption, Act (II of 1947), S.5(2)---Constitution of Pakistan (1973), Art. 185(3)---Reappraisal of evidence---Supreme Court, while performing as a Court of ultimate jurisdiction, has power to do complete justice and re-examine the evidence to see whether all chances of false implication of accused had been excluded and further can go into the question of sufficiency of evidence for conviction where the case rests on ocular evidence which does not appear to be convincing or worthy of credence.
Riaz Haider Zaidi v. State PLD 1965 SC 179 and Rehmat v. State PLD.1959 SC (Pak.) 109 ref.
(b) Penal Code (XLV of 1860)--
---Ss.468, 471 & 419---Prevention of Corruption Act (II of 1947), S.5 (2)---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal may be granted to see as to whether correct principles concerning administration of justice had been applied by the Appellate Court for the appreciation of evidence or in case of failure to examine the case from a correct angle.
Muhammad Ashraf v. The State 1986 SCMR 1175; Daud v. State 1985 SCMR 1923; Nadeem-ul-Haq Khan v. State 1985 SCMR 510 and Abdus Sattar v. Muhammad Anwar PLD 1974 SC 266 ref.
(c) Penal Code (XLV of 1860)---
----Ss.468, 471 & 419---Prevention of Corruption, Act (II of 1947), S.5(2)---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted to accused by Supreme Court to consider the contention that the accused could not have been convicted in absence of any incriminating material and that the provisions of Ss. 468 & 471, P.P.C. had been misconstrued and could not have been invoked in the absence of any forged documents.
Riaz Haider Zaidi v. State PLD 1965 SC 179; Rehmat v. State PLD 1959 SC (Pak.) 109; Muhammad Ashraf v., The State 1986 SCMR 1175; Daud v. State 1985 SCMR 1923; Nadeem-ul-Haq Khan v. State 1985 SCMR 510 and Abdus Sattar v. Muhammad Anwar PLD' 1974 SC 266 ref.
Muhammad Kazam Khan, Advocate Supreme Court and C.M Latif, Advocate-on-Record for Petitioner.
Mian Abdul Qayyum Anjum, Advocate Supreme Court for the State.
2004 S C M R 279
[Supreme Court of Pakistan]
Present: Javed Iqbal and Falak Sher, JJ
PROVINCE OF PUNJAB through Secretary, Education Department, Lahore and others---Petitioners
versus
Mst. SARWARI BEGUM---Respondent
Civil Petition No.879-L of 2001, decided on 6th May, 2003.
(On appeal from the judgment dated 30-1-2001 of the Lahore High Court, Lahore, passed in I.C.A. No.435 of 1999).
Constitution of Pakistan (1973)---
----Arts.185(3) & 212---Non-implementation of summary for appointment of civil servant approved by Competent Authority on merits---High Court accepted Constitutional petition of civil servant directing the Authority not to make appointment for extraneous considerations by ignoring merits as determined by Competent Authority, and that such summary could not be kept pending on the basis of bureaucratic bottle-necks created by the Authority---Validity---Case of the Authority was not that no such summary had ever been prepared--- Approval of summary had not been challenged---No question of terms and conditions of service ousting Constitutional jurisdiction of High Court was involved in the matter---Findings of High Court well-based did not warrant any interference---No question of law of public importance was involved in the matter---Supreme Court dismissed petition and refused leave to appeal.
Muhammad Sharif Butt, Advocate Supreme Court and Rao M. Yusuf, Advocate-on-Record (absent) for Petitioners.
Respondent in person.
Date of hearing: 6th May, 2003.
2004 S C M R 281
[Supreme Court of Pakistan]
Present: Javed Iqbal and Falak Sher, JJ
PROVINCE OF PUNJAB through Secretary Education (EE), Government of the Punjab, Lahore and others---Petitioners
versus
LIAQAT ALI ---Respondent
Civil Petition No.3456-L of 2001, decided on 5th May, 2003.
(On appeal from the judgment dated 21-8-2001 of the Punjab Service- Tribunal; Lahore passed in Appeal No.3060 of 2000).
Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---
----R.4(l)(b)(v)---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service after six years on ground of misconduct and appointment being against rules---Service Tribunal set aside such order in appeal filed by the civil servant---Validity---Authenticity of documents on basis whereof appointment was made, had been confirmed by appointing Authority---Charges against civil servant could not be substantiated on the basis of worthy of credence documentary evidence---Non-production of inquiry report before Service Tribunal, inspite of its various directions would give rise to the presumption that no such inquiry had ever been conducted---Non-mentioning of name of civil servant in the Dispatch Register would have no bearing on merits of the case---No question of law of public importance was involved--Supreme Court dismissed petition and refused leave to appeal.
Muhammad Sharif Butt, Advocate Supreme Court and Rao Muhammad Yusuf Khan, Advocate-on-Record for Petitioners.
Tanvir Ahmed, Advocate-on-Record for Respondent
Date of hearing: 5th May, 2003
2004 S C M R 283
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
NASEEM MALIK ---Petitioner
versus
THE STATE---Respondent
Criminal Petition for Leave to Appeal No.678-L of 2002, decided on 6th March, 2003.
(On appeal from the order dated 7-8-2002 of the Lahore High Court, Lahore, passed in Criminal Miscellaneous No.5316/C.B. of, 2002).
(a) Criminal Procedure Code (V of 1898)---
----S.497(5)---Penal Code (XLV of 1860), Ss.419/420/468/417/477-A/ 109---Prevention of Corruption Act (II of 1947), S.5---Bail, cancellation of---Accused was specifically named and comprehensively described in the F.I.R. as one of the conspirators and preparators of the crime ---Coaccused after his arrest from the Bank had mentioned the accused as one of his collaborators whose statement could be validly taken into consideration while deciding such matters---Accused had approached the Special Court for bail while his bail petition was pending Disposal before the Supreme Court and he withheld this fact from the Special Court--Special Court had also ignored the finding of the High Court that the accused was not entitled to grant of bail even on merits of the case and in granting bail to him it had acted contrary to the conclusions reached by High Court and that too on the basis of the stance taken by the Investigating Officer which was seriously questionable ---Accused had secured his release on bail by grossly abusing the process of Court and he could not be permitted to continue enjoying the fruits of such an ill-gotten gain---Bail allowed to accused was cancelled accordingly.
(b) Criminal Procedure Code (V of 1898)---
----S.497(5)---Bail, cancellation of---Statement of co-accused implicating the accused can be validly taken into consideration while deciding such matters.
(c) Criminal trial---
---- Appreciation of evidence---Police opinion---Courts are not bound by the stance taken by the Investigating Officers while dealing with criminal matters.
Masood Mirza, Advocate Supreme Court and Dr. Sohail Akhtai, Advocate Supreme Court with M.A. Qureshi, Advocate-on-Record for Petitioner.
Muhammad Nawaz Bhatti Deputy Attorney-General for the
Date of hearing: 6th March, 2003
2004 S C M R 290
[Supreme Court of Pakistan]
Present: Javed Iqbal and Falak Sher and Karamat Nazir Bhandari, JJ
Mst. SAMINA NAZEER ---Petitioner
versus
DISTRICT EDUCATION OFFICER (W), KHANEWAL and others ---Respondent
Civil Petition No.4012-L of 2001, decided on 14th May, 2003.
(On appeal from the judgment dated 31-10-2001 of the Punjab Service Tribunal, Lahore, passed in Appeal No.3592 of 1999).
Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---
----Rr.4(1)(b)(iv) & 6---Constitution of Pakistan (1973), Art.212(3)--Termination of service without holding regular inquiry---Validity---Civil servant's name was not included in the merit list of selected candidates--Transfer order and joining report of civil servant were fake and fabricated ---Factum of fraud and forgery being a question of fact had been determined by Authority on the basis of relevant record and affirmed by Service Tribunal after perusing entire record would not warrant any interference---Competent Authority could dispense with holding of regular inquiry under R.6 of Punjab Civil Servants (Efficiency arid Discipline) Rules, 1975---Allegations levelled against civil servant had been proved on basis of documentary evidence, thus, regular inquiry was not necessary---No question of law of public importance was involved--Supreme Court dismissed petition and refused leave to appeal.
Ch. M.S. Shad, Advocate Supreme Court for Petitioner.
Nemo for Respondents.
Date of hearing: 14th May, 2003.
2004 S C M R 292
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
FARRUKH RAFIQUE SHEIKH---Petitioner
versus
THE STATE---Respondent
Criminal Petition for Leave to Appeal No. 12-L of 2003, decided on 29th January, 2003.
(Appeal from the judgment dated 22-11-2002 passed by the Lahore High Court, Lahore, passed in Criminal Appeal No.1806 of 2002).
Customs Act (IV of 1969)----
----S.156(1)(62)---Constitution of Pakistan (1973), Art. 185(3)---Accused had paid the customs duty amounting to Rs.28 millions and had committed himself to pay any further duty with respect to the items in question as might be found payable by him---Tribunal under the Customs Act which was seized of the matter in question on the departmental side had also stayed further proceedings against the accused---Petition for leave to appeal was converted into appeal and while maintaining the conviction of accused Supreme Court had reduced his sentence of three years' R.I. to the imprisonment already suffered by him in circumstances.
Aftab Gul, Advocate Supreme Court with Muhammad Ozair Chughtai, Advocate-on-Record for Petitioner.
Muhammad Nawaz, D.A.-G. for the State
Date of hearing: 29th January, 2003.
2004 S C M R 294
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, C.J., Qazi Muhammad Farooq and
Abdul Hameed Dogar, JJ
FEDERATION OF PAKISTAN through Secretary, Establishment Division, Government of Pakistan, Islamabad and another---Petitioners
versus
NOOR JAMAL, EX-EXECUTIVE ENGINEER---Respondent
Civil Appeal No.838 of 2000, decided on 20th October, 2003.
(On appeal from the judgment dated 3-7-1999 of the Federal Service Tribunal, Islamabad, passed in Appeal No.244-L of 1999).
(a) Constitution of Pakistan (1973)---
----Art.185(3)---Leave to appeal was granted by the Supreme Court to consider whether judgment of Service Tribunal was sustainable as the main judgment written by its Member appeared to be based on reactionary approach rather than the legal one for not filing the parawise comments; that whether the inquiry report which was quite in detail and wherein the civil servant fully participated, could be brushed aside by the Tribunal as no reference was made to it in the judgment made by the Tribunal and that whether the civil servant in view of the charges against him was entitled to reinstatement in service with all consequential benefits.
(b) Government Servants (Efficiency and Discipline) Rules, 1973---
----Rr.2(4), 3(b) & 6---Service Tribunals Act (LXXV of 1973), S.4--Reinstatement--- Imposing of major penalty---Failure to conduct proper inquiry---Civil servant was dismissed from service on the charge of misconduct ---Fact-finding inquiry proceedings pertaining to two charges against the civil servant were conducted by the Department and on the basis of such inquiry report major penalty of dismissal from service was awarded---Civil servant, on the contrary, was exonerated in the inquiry conducted by Federal Investigation Agency as there was no material available against him---Service Tribunal allowed the appeal and the civil servant was re-instated in the service---Validity---In case of awarding major penalty, a proper inquiry was to be conducted in accordance with R.6 of Government Servants (Efficiency and Discipline) Rules, 1973, wherein a delinquent officer was to be provided an opportunity of defence and personal hearing after issuing him show-cause notice and obtaining his reply thereto and, if the charges were proved in the regular inquiry, he was to be penalized---Judgment passed by the Service Tribunal was based on valid reasons and was in consonance with the law laid down by Supreme Court---Neither there was misreading or nonreading of material evidence, nor misconstruction of facts or law was involved in the judgment of the Service Tribunal, appeal was dismissed by the Supreme Court.
Jan Muhammad v. The General Manager, Karachi Telecommunication Region, Karachi and another 1993 SCMR 1440 and Inspector-General of Police, Police Headquarters Office, Karachi and 2 others v. Shafqat Mehmood 2003 SCMR 207 ref.
Ms. Naheeda Mehboob Elahi, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners.
Malik Azam Rasool, Advocate Supreme Court for Respondent.
Date of hearing: 20th January, 2003.
2004 S C M R 299
[Supreme Court of Pakistan]
Present: Javed Iqbal, Tanvir Ahmed Khan and Faqir Muhammad Khokhar, JJ
GHARIB ALAM alias GHARIBU---Petitioner
versus
THE STATE---Respondent
Criminal Petition No.367-L of 2002, decided on 6th January, 2003.
(On appeal from the judgment dated 2-4-2002 of the Lahore High Court, Lahore, passed in Criminal Appeal No.8-.J of 1997).
Penal Code (XLV of 1860)---
----S.302(b)---Constitution of Pakistan (1973), Art. 185(3)---Presence of eye-witnesses on the spot at the relevant time was established---Ocular testimony was corroborated by medical evidence in all material details, recovery of carbine and positive reports of Forensic Science Laboratory, Chemical Examiner and Serologist ---Abscondence of accused, in view of the facts and circumstances of the case, had also supported the prosecution case---Defence plea was false and fabricated---No mitigating circumstance was available on record in favour of accused---Conclusion drawn by the Courts below was well-based, unexceptionable and not warranting any interference---Leave to appeal was refused to accused accordingly.
PLD 1971 Pesh. 32; Bhamra v. State 1953 Bhopal 1; 1953 Cr.LJ 217; Manzoor Elahi v. State PLD 1965 Lah. 656; Permeshwar Din v. E. AIR 1941 Qudh 517; Crown v. Fateh Muhammad 35 PLR 740; Chandika Prasad v. E 126 IC 684; AIR 1930 Qudh 324; 31 Cr.LJ 1981; Gangaram Hari Parit v. E. 6 IC 545; 22 Cr.LJ 529; Q.E. v. Sami and others 13 Mad. 426; Q.E. v. Gobardhan 9 All. 528; Rakhal Nikari v. Q.E. 2 CWN 81; Mahla Singh v. E. 130 IC 410; 1931 Lah. 38; 32 Cr.LJ 522; Q. v. Sorab Roy 5 WR Cr.28; Khan v. State AIR 1955 Cal. 146; PLD 1978 SC 103; Riaz Hussain v. State 2001 SCMR 177 and 2001 SCMR 1779 ref.
M. A. Malik, Advocate Supreme Court and C.M Advocate-on-Record (absent) for Petitioner.
Nemo for the State
Date of hearing: Pith January, 2003.
2004 S C M R 303
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah, Hamid Ali Mirza and Faqir Muhammad Khokhar, JJ
COLLECTOR OF CUSTOMS AND CENTRAL EXCISE, PESHAWAR and 2 others---Petitioners
versus
ABDUL WA14EED and 7 others---Respondents
Civil Petitions Nos.2318 to 2323, 2371 and 2545 of 2002, decided on 6th November, 2003:
(On appeal from the judgment dated 9-9-2002 in Appeals Nos.475(P) of 1999, 49(P)CS to 53(P)CS, 59(P)CS and 82(P)CS of 2000 passed by the Federal Service Tribunal, Islamabad):
Service Tribunals Act (LXX of 1973)---
----S.4---Constitution of Pakistan (1973), Art.212(3)---Service of ad hoc appointees, termination of---Political appointments---Non-compliance of procedure for appointment---Lapses on the part of Appointing Authorities---Services of civil servants were terminated for the reason that they were not appointed on merits rather the appointments were made due to political and external pressures---Termination order was set aside by Service Tribunal and the civil servants were reinstated on the ground that the Appointing Authority, at no stage, had applied its independent mind at the time of initial appointment and carried out the directives of other Authorities---Plea raised by the Authorities was that the' appointments of civil servants were made without observing prescribed procedure -for appointment and they were no more required being ad hoc appointees---Validity---Appointments of civil servants were made by Competent Authority---If prescribed procedure was not followed by the concerned Authority, the civil servants could not be blamed for what was to be performed and done by the Competent Authority---Competent Authorities should be held responsible and liable for the lapse on their part---Civil servants had put in more than ten years of their service and had lost all their chances to get fresh appointment elsewhere as they stood disqualified being overage---Supreme Court noted it with concern that in case the civil servants were to be removed then the same would amount to hitting them hard creating problems for the society at large considering each of the civil servants being a bread earner of his family---Appointing Authorities had been acting mechanically without application of mind, therefore, the civil servants could not be made to suffer for whimsical and mechanical acts of the Authorities---Supreme Court declined to interfere with the judgment passed by Service Tribunal as the act of the Authorities was not in accordance with law---Authorities had terminated the services of civil servants without any just and legal cause---Leave to appeal was refused.
Secretary to Government of N.-W.F.P. Zakat/Social Welfare Department v. Sadullah Khan 1996 SCMR 413; Syed Sikandar Ali Shah v. Auditor-General of Pakistan and others 2002 PLC (C.S.) 1027 and Abdul Hafeez Abbasi v. Managing Director, Pakistan International Airlines and others 2002 SCMR 1034 ref.
Hafiz S.A. Rehman, D.A.-G. for Petitioners.
Netno for Respondents (in Civil Petition No.2318 of 2002).
Khushdil Khan, Advocate Supreme Court for Respondent (in Civil Petitions Nos.2319, 2321, 2322 and 2323 of 2002).
Nemo for Respondents (in Civil Petitions Nos.2320, 2371 and 2545 of 2002).
Date of hearing: 6th November, 2003.
2004 S C M R 306
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ
ABDUL RAZAQ ---Appellant
versus
RUSTAM ALI and another---Respondents
Criminal Appeal No.59 of 1997, decided on 21st October, 2002.
(On appeal from the judgment dated 16-5-1996 passed by the Lahore High Court, Multan Bench, Multan in Criminal Appeal No. 205 of 1994).
(a) Penal Code (XLV of 1860)---
----Ss.302(c) & 308(2)---Constitution of Pakistan (1973), Art. 185(3)--- Leave to appeal was granted to complainant only to consider the question whether the accused should also have been punished with a direction to pay Diyat as envisaged by S.308(2), P.P.C.
(b) Penal Code (XLV of 1860)---
----Ss.302(c) & 308(2)---Direction for payment of Diyat---Provisions of S.302(c), P.P.C. did not envisage any punishment by way of a direction to pay Diyat and the only sentence which could be imposed on an accused under the said provisions of law was a punishment of imprisonment extending up to a term of 25 years---Punishment awarded to accused by the Courts below, therefore, did not suffer from any illegality on account of absence of any direction to the accused to pay the amount of Diyat to the heirs of the deceased---Appeal was dismissed accordingly.
Mian M. Waheed Akhtar, Advocate Supreme Court for Appellant.
Nemo for Respondent No. 1.
Ch. Ghulam Ahmad, Advocate Supreme Court for Respondent
Date of hearing: 21st October, 2002.
2004 S C M R 309
[Supreme Court of Pakistan]
Present: Javed Iqbal, Sardar Muhammad Raza Khan and Khalil-ur-Rehman Ramday, JJ
PROVINCE OF PUNJAB through The Chief Engineer, Highway Department and others---Appellants
versus
PERVAIZ IQAAL --- Respondent
Civil Appeal No. 497 of 1999, decided on 30th September, 2003.
(On appeal from the judgment dated 26-11-1997 of the Punjab Service Tribunal, Lahore, passed in Appeal No.285 of.1974).
(a) Constitution of Pakistan (1973)---
----Art.212(3)---Leave to appeal was granted by Supreme Court to consider the contention of Authorities that basic educational qualification for the post in dispute was Matriculation with Science and under para. 5 of Notification dated 8-10-1991, an officer was qualified for the grant of increments on his improving prescribed qualification i.e. passing B.Sc., as Matriculation with Science was the prescribed qualification and not B.A., as such, even under the notification, the grant of two increments was not permissible which aspect of the case did not receive consideration by the Service Tribunal.
(b) Punjab Service Tribunals Act (IX of 1974)---
----S.4---Advance increment, 'withdrawal of---Retrospective effect of circular letter---Civil servant was appointed as Divisional Head Draftsman in Punjab Highways Department---Basic qualification for the post was Matriculation with Science---Two advance increments vide Notification dated 1-8-1991, were to be allowed to the civil servants on improvement of their qualification---Civil servant passed his B.A. Examination and he was given two increments vide order dated 15-11-1992---Subsequently the Authorities had withdrawn the increments on the basis of clarification of Finance Department regarding nature of the qualification to be improved by the civil servants---Service Tribunal allowed the appeal filed by the civil servant and the order for withdrawal of increments was set aside---Validity---Decision for withdrawal of such advance increments was made pursuant to new sub-para. added in the circular which sub-para. was not available in the original circular whereby two advance increments were granted to the civil servant on account of higher qualifications which he acquired---Circular letter could not be equated to that of a legitimate piece of legislation and the same could not have its retrospective effect---Civil servant was not entitled to get two advance increments after the date of issuance of the circular with new added sub-para. which had no effect on the increments for the period prior to issuance of the clarification---Advance increments already given to the civil servant could not be withdrawn retrospectively-- Supreme Court directed that no deduction would be made from the pay of the civil servant already paid prior to the date of issuance of the amended circular---Appeal was disposed of accordingly.
Mrs. Afshan Ghazanfer, A.A.-G. and Rao Muhammad Yusuf Khan, Advocate-on-Record (absent) for Appellants.
Respondent in person.
Date of hearing: 30th September, 2003
2004 S C M R 313
[Supreme Court of Pakistan]
Present: Khalil-ur-Rehman Ramday, Falak Sher and Karamat Nazir Bhandari, JJ
ATTIQUE AHMAD KAMAL---Petitioner
versus
THE STATE---Respondent
Criminal Petitions for Leave to Appeal Nos.233 and 237-L of 2002, decided on 19th May, 2003.
(On appeal from the consolidated judgment dated 10-1-2002 of the Lahore High Court, passed in Criminal Appeal No.660 of 1999 and Criminal Revision No.334 of 1999).
Penal Code (XLV of 1860)---
-----S.319---Constitution of Pakistan (1973), Art. 185(3)---Contentions were that the case against accused was that of target shooting and not of firing in the air as found by High Court which had not given any reason to reach a different conclusion from that of Trial Court and that High Court was in error in ignoring the provisions of S. 301, P.P.C. and holding instead that the case of accused fell within the purview of S.319, P.P.C.---Said contentions deserved a deeper examination by Supreme Court---Leave to appeal was granted to the complainant accordingly.
M. A. Zafar, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.
Nemo for the State.
Date of hearing: 19th May, 2003.
2004 S C M R 316
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, C.J., Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ
PAKISTAN INTERNATIONAL AIRLINES CORPORATION through Managing Director, PIAC, Head Office, Karachi Airport, Karachi---Petitioner
versus
Ms. SHAISTA NAHEED---Respondent
Civil Petition No.918 of 2003, decided on 3rd November, 2003.
(On appeal from the judgment dated 17-3-2003 of the Federal Service Tribunal, Islamabad, passed in Appeal NoA11 (R)CE/2002).
Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985---
----S.II, C1.75 (h), (ah) & (aj)---Removal from Service (Special Powers) Ordinance (XVII of 2000), Ss.3, 5 & 8 [as amended by Removal from Service (Special Powers) Ordinance (V of 2001)]---Constitution of Pakistan (1973), Art.212(3)---Removal from service---Proper inquiry, non-conducting of---Employee was exonerated in departmental inquiry conducted against her under Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985---Second inquiry was conducted under the provisions of Removal from Service (Special Powers) Ordinance, 2000, and the employee was dismissed from service---Service Tribunal allowed the appeal filed by the employee and reinstated her in service with back benefits---Plea raised by the Pakistan International Airlines Corporation was that the employee was rightly dismissed from service as there was no bar on conducting the second inquiry under the provisions of Removal from Service (Special Powers) Ordinance, 2000---Validity---On failure of first inquiry, second inquiry was initiated under the Removal from Service (Special Powers) Ordinance, 2000---Such action was unjustified and it showed that the employer was bent upon to remove the employee from service in any case---In case of charge of misconduct, under S.5 of Removal from Service (Special Powers) Ordinance, 2000, a full-fledged inquiry was to be conducted, which had not been done in the case---In case of awarding major penalty, a proper inquiry was to be conducted in accordance with law wherein a full opportunity of defence was to be provided---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 or non-reading of material evidence nor misconstruction of facts and law---No question of general public importance, as contemplated under Art.212(3) of the Constitution was involved in the case---Leave to appeal was refused.
Inspector-General of Police, Police Headquarters Office, Karachi and 2 others v. Shafqat Mehmood 2003 SCMR 207 ref.
Qalb-e-Hussain Shah, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate-on-Record for Petitioner.
Respondent in person.
Date of hearing: 3rd November, 2003
2004 S C M R 319
[Supreme Court of Pakistan]
Present: Javed Iqbal, Sardar Muhammad Raza Khan and Falak Sher, JJ
ABDUL WAHEED---Petitioner
versus
THE STATE---Respondent
Petition for Leave to Appeal No.701-L of 2002, decided on 2002.
(On appeal from order dated 30-7-2002 of Lahore High Court, in Criminal Miscellaneous No.4745-B of 2002).
(a) Criminal Procedure Code (V of 1898)---
----S.497---Drugs Act (XXXI of 1976), Ss.23/27/30---Constitution of Pakistan (1973), Art. 185(3)---Bail---Questions having no nexus with the decision of bail matter could not be dilated upon at such stage as the same could be conveniently agitated during trial---Accused was the owner of Messrs Multi-Pharma (Pvt.) Limited and was apprehended at the spot in manufacturing process and putting false labels on Norgesic Injections---Huge quantity of Norgesic Injections without labels alongwith packing material was also recovered from the spot---Prima facie, a case against the accused was made out---Offence alleged against the accused, no doubt, did not fall within the purview of S.497(1), Cr.P.C., but on this score alone concession of bail could not be claimed as a matter of right in view of the nature of the offence and its harmful impact on the society as a whole---Impugned order refusing bail to accused was in accordance with the settled norms of justice and being well-based did not warrant interference---Leave to appeal was declined to accused in circumstances.
Agha Nadeem v. S.H.O. PLJ 1997 Lah. 1378; State v. Iqbal Ahmed Khan 1996 SCMR 767; Shuja Ullah v. State 1994 PCr.LJ 1065; Federal Drug Inspector v. A. Rashid NLR 1989 TD 189; Qassim Shah v. State PLD 1991 SC 893; Anwar-ul-Haq v. Deputy Inspector-General of Police 2000 PCr.LJ 1644; Shahid Habib v. State 2000 PCr.LJ 808 and Hafiz Khalil v. State 1996 PCr.LJ 1183 distinguished.
Zaro v. State 1974 SCMR. 11 and Allah Diwaya v. State PLD 1969 SC 98 ref.
(b) Criminal Procedure Code (V of 1898)---
----S.497---Constitution of Pakistan (1973), Art. 185(3)---Bail--Principle---Grant of bail being a matter purely of discretion of the Court below, Supreme Court does not interfere with the discretionary order unless it is satisfied that the same is perverse or has been made in clear disregard of the principles of law.
Zaro v. State 1974 SCMR 11 and Allah Diwaya v. State PLD 1969 SC 98 ref.
Sheikh Zia Ullah, Senior Advocate Supreme Court and Mehmudul Islam, Advocate-on-Record (absent) for Petitioner.
Ch. Arshad Ali, Advocate Supreme Court for the State.
Date of hearing: 30th September, 2002.
2004 S C M R 323
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Khalil-ur-Rehman Ramday, JJ
Mst. ZAHIDA NASREEN ---Petitioner
versus
CHIEF SETTLEMENT COMMISSIONER and others---Respondents
Civil Petitions for Leave to Appeal Nos. 2349-L, 2460-L and 3348-L of 2002, decided on 29th May, 2003.
(On appeals from the judgment dated 26-4-2002 passed by the Lahore High Court, Lahore in Writ Petition No.45-R of 1998).
Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---
----S.3---Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.28---Constitution of Pakistan (1973), Art.185(3)--Association deed---Parties with mutual consent agreed to take area as per modified association deed---Supreme Court disposed of appeals with observations that P.T.D. would be issued in favour of associates as per modified association deed, who would pay amount, if any, found due towards transfer price or other charges by Settlement Department; and the case would be deemed pending before Chief Settlement Commissioner, who would get possession of disputed property from trespassers and deliver the same to its transferee.
Ch. Qadir Bakhsh, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner (in C.P: No.2349-L of 2002).
Ahmed Awais, Advocate Supreme Court with M. Qureshi, Advocate-on-Record for Respondent No. l (in C. P. No. 2349-L of 2002).
Sh. Abdul Marian, Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for Respondents (in C.P. No.2349-L of 2002).
Raja Muhammad Anwar, Senior Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for Petitioners (in C.P. No.2460-L of 2002).
Ahmad Awais, Advocate Supreme Court with M. A. Qureshi, Advocate-on-Record for Respondent No. l (in C. P. No. 2460-L of 2002).
Sh. Abdul Marian, Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for the Private Respondents (in C.P. No.2460-L of 2002).
Nawab Saeedullah Khan, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners (in C.P. No.3348-L of 2002).
Ahmad. Awais, Advocate Supreme Court with M. A. Qureshi, Advocate-on-Record for Respondent No. l (in C. P. No. 3348-L of 2002).
Sh. Abdul Marian, Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for the Private Respondents (in C.P. No.3348-L of 2002).
Date of hearing: 29th May, 2003.
2004 S C M R 327
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
MUHAMMAD RIAZ, EX-CONSTABLE NO.716C --- Petitioner
versus
INSPECTOR-GENERAL OF POLICE, PUNJAB ---Respondent
Criminal 'Petition for Leave to Appeal No.413-L of 2000, decided on 27th January, 2003.
(On appeal from the judgment dated 21-12-1999 passed by the learned Punjab Service Tribunal Lahore).
Constitution of Pakistan (1973)---
----Art.212(3)---Service Tribunal by means of the impugned order had dismissed the appeal of the petitioner not only being barred by time but, also on merits on account of his unexplained continued long absence from duty---Record of petitioner was replete with red entries showing unauthorized' continued absence, for which he had been fined many a times---Accused was also earlier dismissed from service, but was subsequently reinstated---Punjab Service Tribunal was right in holding that the petitioner did not have any interest in the Government service particularly so when it was a disciplinary force---Case of petitioner did not involve a substantial question of law of public importance as envisaged by Article 212(3) of the Constitution---Leave to appeal was refused to petitioner accordingly.
Mian Ghulam Rasool, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.
Nemo for. Respondent
Date of hearing: 27th January, 2003
2004 S C M R 328
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Iftikhar Muhammad Chaudhry and Faqir Muhammad Khokhar, JJ
Khawaja AHMAD HASSAN ---Petitioner
versus
GOVERNMENT OF PUNJAB and others---Respondents
Civil Petition No. 2125 of 2003, decided on 7th October, 2003.
(On appeal from the judgment/order dated 22-9-2003 passed by the Lahore High Court, Lahore in Writ Petition No. 11358 of 2003).
Punjab Local Government (Re-Call Motions Against Nazim and Naib Nazim) Rules, 2003---
----R.14(1)(2)---Punjab Local Government Ordinance (XIII of 2001), S.63---Constitution of Pakistan (1973), Art. 185(3)---No-confidence motion against Town Nazim---Such motion was passed by majority of members of Town Council and was not referred to the members of Union Councils in the said Town---Provincial Election Authority through notification restrained the Town Nazim from performing his duty and functions till conduct of voting on re-call motion by members of the Union Councils---High Court dismissed Constitutional petition filed by the Town Nazim---Validity---Supreme Court granted leave to appeal to consider as to whether R.14(1)(2) of Punjab Local Government (Re-Call Motions Against Nazim and Naib-Nazim) Rules, 2003 were ultra vires the provision of S.63 of Punjab Local Government Ordinance, 2001; and if R.14(1)(2) was not found to be ultra vires of S.63 of the Ordinance, whether discretionary power vested in the Provincial Election Authority in the present case had been exercised on application of proper mind keeping in view the principles regulating exercise of such powers--Supreme Court suspended operation of such notification till the disposal of appeal.
Malik Muhammad Qayyum, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Petitioner.
Muhammad Akram Sheikh, Senior Advocate Supreme Court with M. A. Zaidi, Advocate-on-Record for Respondents Nos.2 and 3.
Date of hearing: 7th October, 2003
2004 S C M R 337
[Supreme Court of Pakistan]
Present: Jawed Iqbal and Tanvir Ahmed Khan, JJ
Mst. BAKHTAN and others- --Petitioners
versus
MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE and others---Respondents
Civil Petition for Leave to Appeal No.2189;-L of 1999, decided on 18th February, 2003.
(On appeal from the judgment dated 24-11-1999 of the Lahore High Court, Multan Bench, Multan, passed in Writ Petition No.459 of 1979).
West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---
----Ss.10 & 13---Constitution of Pakistan (1973), Arts. 185(3)--Consolidation of holdings--Order of Consolidation Officer adjusting land in favour of petitioner was set aside by 'the Additional Commissioner on the ground that the same was in possession of respondent since 1967----Such determination was upheld by the Board of Revenue and the High Court--- Impugned judgment being legal, Supreme Court dismissed the petition and refused leave to appeal.
Mian Saeed-ur-Rehman Farrukh, Advocate Supreme Court for Petitioners.
Syed Sardar Shah Bokhari, Advocate Supreme Court with Ch. Mehhdi Khan Mehtab, Advocate-on-Record for Respondents Nos.3 and 4.
Date of hearing: 18th February, 2003.
2004 S C M R 337
[Supreme Court of Pakistan]
Present: Jawed Iqbal and Tanvir Ahmed Khan, JJ
Mst. BAKHTAN and others- --Petitioners
versus
MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE and others---Respondents
Civil Petition for Leave to Appeal No.2189;-L of 1999, decided on 18th February, 2003.
(On appeal from the judgment dated 24-11-1999 of the Lahore High Court, Multan Bench, Multan, passed in Writ Petition No.459 of 1979).
West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---
----Ss.10 & 13---Constitution of Pakistan (1973), Arts. 185(3)--Consolidation of holdings--Order of Consolidation Officer adjusting land in favour of petitioner was set aside by 'the Additional Commissioner on the ground that the same was in possession of respondent since 1967----Such determination was upheld by the Board of Revenue and the High Court--- Impugned judgment being legal, Supreme Court dismissed the petition and refused leave to appeal.
Mian Saeed-ur-Rehman Farrukh, Advocate Supreme Court for Petitioners.
Syed Sardar Shah Bokhari, Advocate Supreme Court with Ch. Mehhdi Khan Mehtab, Advocate-on-Record for Respondents Nos.3 and 4.
Date of hearing: 18th February, 2003.
2004 S C M R 339
[Supreme Court of Pakistan]
Present: Kkalil-ur-Rehman Ramday, Falak Sher and Karamat Nazir Bhandari, JJ
MUHAMMAD IQBAL---Petitioner
versus
THE STATE- -Respondent
Criminal Miscellaneous Application No.98-L of 2003 in Criminal Petition No. Nil of 2003, decided on 22nd May, 2003.
(On appeal from the judgment dated 4-3-2003 passed by the Lahore High Court, Multan Bench in Criminal Appeal No.232 of 1993).
Penal Code (XLV of 1860)---
----Ss.302(b)/34 &. 307/34---Constitution of Pakistan (1973), Art. 185(3)---Accused without surrendering to custody had filed the petition before the Supreme Court under Art. 185(3) of the Constitution accompanied by another application praying that the said petition be entertained without the accused having surrendered to custody only on the ground that he was the only bread-earner of his large family and that if he surrendered to custody his family would suffer irreparably---Held, this was hardly a ground justifying entertainment of the accused's petition under Art.185(3) of the Constitution without his having surrendered himself to custody---Application was dismissed accordingly.
Rashid Murtaza Qureshi, -Advocate Supreme Court with Muhammad Ozair Chughtai, Advocate-on-Record for Petitioner.
Nemo for the State.
Date of hearing: 22nd May, 2003.
2004 S C M R 340
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Iftikhar Muhammad Chaudhry and Rana Bhagwandas, JJ
FAQIR MUHAMMAD and others---Appellants
versus
SARDAR MUHAMMAD and 21 others-Respondents
Civil Appeal No. 1027 of 1996, decided on 3rd November, 2003.
(On appeal from the judgment dated 27-9-1995 passed by Lahore High Court, Bahawalpur Bench, Bahawalpur in C.R. No.517-D of 1989).
Specific Relief Act (I of 1877)---
----S.42---West Pakistan Rehabilitation Settlement Scheme, paras.29 & 46---Title over allotted land---Claim of right on the basis of will-- Constructive res judicata, principle of ---Applicability---Predecessor-in-interest of the parties migrated from India and he was holding valuable right in the form of verified claim regarding land left by him in India for which he was holding land under temporary allotment---Plaintiffs were children of predeceased son of the predecessor-in-interest of the parties who, after temporary allotment, executed, will to the extent of half of the allotted property in favour of the plaintiffs---Rehabilitation Authorities keeping in view the will executed by the predecessor-in-interest of the parties, decided question of inheritance under the provision of para.46 of West Pakistan Rehabilitation Settlement Scheme and allotted half of the land in favour of the plaintiffs---Defendants assailed the order of Rehabilitation Authorities and finally Supreme Court declared the allotment against the provisions of para:46 of West Pakistan Rehabilitation Settlement Scheme and the whole land was allotted to the defendants---Plaintiffs filed declaratory suit on the basis of will executed in their favour and claimed enforcement of the same---Trial Court as well as Appellate Court dismissed the suit and appeal of the plaintiffs respectively---High Court in exercise of revisional jurisdiction set aside the judgments and decrees passed by both the Courts below resultantly the suit was decreed---Plea raised by the defendants was that principle of constructive res judicata was applicable as the matter had already been decided up to Supreme Court---Validity---Rehabilitation Authorities under para.46 of Rehabilitation Settlement Scheme were to pass an order regarding inheritance of a claim holder which was a special law, therefore, only the question of inheritance between direct heirs of the claim holder was the subject-matter of such proceedings and not the claims of strangers or third party---In earlier proceedings direct heirs of the predecessor-in-interest of the parties were the parties only---Claim based on will could neither be raised nor decided in earlier proceedings the scope of which was limited---Claim based on will being a third party claim was an independent matter which could be raised before Civil Court for determination--Rehabilitation Authorities were not vested with the jurisdiction to entertain such claim, therefore, condition to attract principle of res judicata that previous Court should be a Court having jurisdiction to decide the question raised in subsequent proceedings was also not fulfilled---Findings recorded by High Court in the judgment did not suffer from any legal infirmity---Appeal was dismissed by the Supreme Court.
Zafar Yab Ali and 'another v. Additional Rehabilitation and Settlement Commissioner and others PLD 1968 Lab. 68 distinguished.
Ch. Hafeez Ahmad; Advocate Supreme Court with Muhammad Aslam Chaudhry Advocate-on-Record (absent) for Appellants.
Abdur Rashid Awan, Advocate Supreme Court and M. A. Zaidi, Advocate-on-Record (absent) for Respondents.
Date of hearing: 3rd November, 2003.
2004 S C M R 345
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ
MANZOOR alias TIWANA---Petitioner
versus
THE STATE---Respondent
Criminal Petition No. 193-L of 2001, decided on 2nd April, 2002.
Criminal Procedure Code (V of 1898)---
-----S.426---Penal Code (XLV of 1860), S.302(b)---Constitution of Pakistan (1973), Art. 185(3)---Suspension of sentence---Ground sought to be urged before the High Court by the accused in his fresh application was admittedly available at the time of his filing the previous application which was not decided on -merits- --Accused had urged all the grounds in his previous application which he had pressed in the Supreme Court--Accused was attributed the role of stabbing the deceased repeatedly and his submission that his innocence required reappraisal of evidence was to ` looked into at the time of hearing f his appeal---Impugned discretionary order of High Court declining plea of suspension of sentence of accused was well-reasoned and required no interference--Leave to appeal was refused to accused accordingly.
Malik Muhammad Khan Awan. Advocate Supreme Court and Ch. Mehdi Khan Mehtab. Advocate-on-Record for Petitioner.
Nemo for the State.
Date of hearing: 2nd April, 2002.
2004 S C M R 346
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Rana Bhagwandas and Faqir Muhammad Khokhar, JJ
Messrs FRIENDSHIP TEXTILE MILLS and others‑‑‑Appellants
versus
GOVERNMENT OF BALOCHISTAN and others‑‑Respondents
Civil Appeals Nos.654 to 658 of 19.98, decided 25th September, 2003.
(On appeal from the judgment dated 26‑3‑1998 passed by High Court of Balochistan in Constitutional Petitions Nos. 467 to 472 of 1997).
(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑
‑‑‑‑Art.l14‑‑‑Constitution of Pakistan (1973), Art, 185(3)‑‑‑Leave to appeal, was granted 6y Supreme Court to consider whether; principle of promissory estoppel could be applicable; and whether there could be no estoppel against statute.
(b) Balochistan Local Government Ordinance (II of 1980)‑‑‑
‑‑‑‑Ss.68 & 70‑‑‑Balochistan Local Council (Imposition of Taxes) Rules, 1981, Preamble‑‑‑Notification No.5‑32/74(BLGB)AO‑IV/771‑82, dated 2‑8‑1995‑‑General Clauses Act (X of 1897), S.21‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.114‑‑‑Rate of octroi, change of‑‑‑Grievance of petitioner in the Constitutional petition before the High Court was that the Provincial Government levied octroi at a specified rate for a specified period but increased the same by issuing a notification‑‑‑Plea raised by the petitioner was that doctrine of promissory estoppel was applicable‑‑‑High Court in Constitutional jurisdiction dismissed the petition on the ground that there could not be any estoppel against statute‑‑‑Validity‑‑‑Generally the Local Council which was empowered to levy tax on the items mentioned in Schedule, subsequently could also increase or reduce the rate of taxes‑‑‑Provincial Government, in the present case,, in exercise of its administrative power conferred under Balochistan Local Government Ordinance, 1980, issued Notification No.5‑32/74(BLGB)AO‑IV/77I‑82, dated 2‑8‑1995, to grant concession to the mill owners for charging rate of octroi on cotton at the rate of Rs.11 per bale for a period of five years and the same had taken effect‑‑‑‑ Nothing was provided in Balochistan Local Government Ordinance, 1980 and Balochistan Local Council (Imposition of Taxes) Rules empowering the Provincial Government to withdraw the concession already made for a fixed period, therefore, principle of promissory estoppel was applicable‑‑‑Judgment passed by High Court in exercise of Constitutional jurisdiction was set aside and the notification increasing the rate of octroi was declared to be without lawful authority‑‑‑Supreme Court directed the Authorities to charge the octroi at the rate specified in Notification No.5‑32/74(BLGB)AO‑IV/771‑82, dated 2‑8‑1995‑‑‑Appeal was allowed.
Collector of Central Excise and Land Customs and 3 others v. Azizuddin Industries Ltd., Chittagong PLD 1970 SC 439 and Al‑Samrez Enterprise v. The Federation of Pakistan 1986 SCMR 1917 rel.
Fakharuddin G. Ebrahim. Senior Advocate Supreme Court and K. A. Wahab. Advocate‑on‑Record (absent) for Appellants (in Civil Appeals Nos.654 and 655 of 1998).
Akhtar Ali Mehmood, Advocate Supreme Court and K. A. Wahab, Advocate‑on‑Record (absent) for Appellants (in Civil Appeals Nos.656 to 658 of 1998).
Salahuddin Mengal, A.‑G. Balochistan and K. N. Kohli, Advocate‑on‑Record (absent) for Respondent No. 1. (in all Appeals).
Nemo for Respondents Nos.2 and 3.
Muhammad Ibrahim Satti, Advocate Supreme Court and M. A. Zaidi, Advocate‑on‑Record for Respondent No.4 (in all Appeals).
Date of hearing: 25th September, 2003.
2004 S C M R 351
[Supreme Court of Pakistan]
Present: Khalil-ur-Rehman Ramday, Falak Sher and Karamat Nazir Bhandari, JJ
MUHAMMAD DIN---Petitioner
versus
MUHAMMAD HUSSAIN and others ---Respondents
Criminal Petition for Leave to Appeal No.253-L of 2002, decided on 21st May, 2003.
(On appeal from the judgment dated 11-3-2002 passed by the Lahore High Court, Lahore, in Criminal Appeal No. 151 of 1997).
Penal Code (XLV of 1860)---
----S.302---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by the Supreme Court to complainant to reappraise the entire evidence to find out whether the findings and conclusions reached by the Trial Court regarding acquittal of accused and affirmed by High Court were or were not correct.
Raja Muhammad Anwar, Senior Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 21st May, 2003.
2004 S C M R 354
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, C.J., Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ
SULEMAN ALI HAIDERI and another---Petitioners
versus
GOVERNMENT OF BALOCHISTAN and others---Respondents
Constitution Petitions Nos.47 and 48 of 2003, decided on 21st October, 2003.
(Constitution petitions under Article 184(3), of the Constitution of the Islamic Republic of Pakistan, 1973).
(a) Constitution of Pakistan (1973)---
----Art.185(3)---Petition for leave to appeal---Maintainability--.Such petition would be competent, when the case involves a substantial question of law of public importance---In absence of such question; leave to appeal may not be granted.
1986 SCMR 1; 1982 SCMR 897; 1981 SCMR. 715; PLD 1980' SC 22; 1980 SCMR 722; 1980 SCMR 148; 1976 SCMR 268; 1976 SCMR 262; 1976 SCMR 311; 1990 SCMR 1446; 1990 SCMR 560; 1989 SCMR 330; 1989 SCMR 1677; 1989 SCMR 748; 1980 SCMR 876 and 1987 SCMR 1354 rel.
(b) Constitution of Pakistan (1973)---
----Art.184(3)---Constitutional petition under Art. 184(3) Of the Constitution involving an individual grievance- --Maintainability--Jurisdiction of Supreme Court under Art. 184(3) could be invoked for redressal of a grievance - affecting only rights of an individual and not public at large.
(c) Constitution of Pakistan (1973)---
----Arts.184(3) & 185---Matter finally decided under Art.185 of Constitution--Proceedings under Art.184(3) of the Constitution could not be initiated to reopen such closed chapter and seek reversal of earlier judgment of Supreme Court.
Dr. A. Basit, Advocate v. Deputy Registrar (Judicial) and Others PLD 2001 SC 1028; Muhammad Ikram Chaudhry v. Federation of Pakistan and others PLD 1998 SC 103, and Mst. Noor Jehan v. Federation of Pakistan and others 1997 SCMR 160 rel.
(d) Constitution of Pakistan (1973)---
----Arts.184(3), 185 & 199---Jurisdiction of Supreme Court---Scope--One Bench of Supreme Court cannot sit as a Court of Appeal over an order or a judgment of another Bench of Supreme Court---Principles and exceptions stated.
A Bench of Supreme Court cannot sit as a Court of appeal over an order or a judgment of another Bench of Supreme Court Article 184(3) confers jurisdiction on Supreme- Court of the nature contained in Article 199 of the Constitution, clause (5) of which excludes, inter alia, Supreme- Court and High Courts. In other words, no writ can be issued by a High Court or Supreme Court against itself or against each other or its Judges in exercise of jurisdiction under Article 199 of the Constitution, subject to two exceptions, namely (i) where a High Court Judge or .a Supreme Court Judge acts as persona designata or as a Tribunal or (ii) where a quo warranto is prayed for and a case is made out.
Muhammad Ikram Chaudhry v. Federation of Pakistan and others PLD 1998 SC 103 fol.
Mian Dilawar Mehmood, Senior Advocate Supreme Court and M. Anwar Khan Durrani, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 21st October, 2003.
2004 S C M R 359
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
MUTALLI---Petitioner
versus
ALLAH YAR and others---Respondents
Criminal Petition for Leave to Appeal N6.974-L of 2002; decided on 2nd May, 2003.
(On appeal from the judgment dated 19-9-2002 passed by. the Lahore High Court, in Criminal Appeal No.435 and Murder Reference No. 198 of 1997).
Penal Code (XLV of 1860)---
----S.302(b)---Constitution of Pakistan (1973),. Art.185(3)---Sentence enhancement of---Discretion exercised by :the High Court in finding the accused entitled to lesser punishment and converting their lenience of death awarded by Trial Court to imprisonment for life could not be shown to be arbitrary or whirnsical---No exception could be taken to the impugned judgment---Leave to appeal was refused to the complainant by the Supreme Court accordingly.
Malik Allah Yar; Advocate Supreme Court with Tanvir Ahmad Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 2nd May, 2003.
2004 S C M R 361
[Supreme Court of Pakistan]
Present: Hamid Ali Mirza, Abdul Hameed Dogar and Faqir Muhammad Khokhar, JJ
REHMAT ALI ISMAILIA ---Petitioner
versus
KHALID MEHMOOD---Respondent
Civil Petition No.3135 of 2001, decided on 31st October, 2003.
(On appeal from the judgment dated 14-6-2001 in R.F.A. No.81 of 1996 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi).
(a) Civil Procedure Code (V of 1908)---
----Ss.151 & 152---Constitution of Pakistan (1973), Arts. 150 & 185(3)--Judicial proceedings, setting aside of--Procedure---Oral denial of making any statement as recorded by Civil Judge during the proceedings---Grievance of the petitioner was that the statement recorded by the Civil Judge on his behalf during the proceedings was not made by him---Validity---In case the order of Civil Judge contained incorrect recital, the petitioner should have got it expunged or struck off by making an application under Ss. 151 & 152 C.P.C. before the Civil Judge or should have approached next higher forum challenging the order containing incorrect recital of his statements, to have the same struck down, but the petitioner did not challenge the same---Supreme Court under Art. 150, of the Constitution was bound to give full faith and credit to the judicial proceedings/orders of the Court as the same could not be discredited only on the basis of oral denial of the petitioner---Such was not only the previous statement in the earlier suit, but also the statement of the petitioner recited, in the Judicial order by Civil Judge---Previous suit was inter-parties, which was also supplemented and corroborated by other reliable documentary evidence as well as oral testimony of the respondent---Judgments and decrees of High Court and that of the Trial Court were based on proper application appreciation of evidence and law, giving sound and cogent reasons for arriving at correct conclusion which did not warrant interference by the Supreme Court in its Constitutional jurisdiction---leave to appeal was refused.
Sardar Hayat Khan and others v. Master Fazal Karim PLD 1971 SC 730; Syed Qamar Ahmad v. Anjum Zafar 1994 SCMR 65 and Malik Din and another v. Muhammad Aslam PLD 1969 SC 136 ref.
(b) Qanun-e-Shahadat (10 of 1984)---
---Art.84---Comparison of signatures and writing Court---Scope---Courts are - empowered under Shahadat, 1984, to make comparison of words or figures so written over a disputed document to that of admitted writing/signature and the Court can exercise its judgments on resemblance of admitted writing on record but it is undesirable that a Presiding Officer of Court should take upon himself the task of comparing signature in order in find out whether the signature/writing resembles to the disputed signature/writing with the admitted or proved writing.
Ghulam Rasoal and others v. Sardar-ul-Hassan and another 1997 SCMR 976; Mst. Ummatul Waheed and others v. Mst. Nasira Kausar and others 1985 SCMR 214 and Messrs Waqas Enterprises and others v. Allied Bank of Pakistan and others 1999 SCMR 85 ref.
Hafiz S.A.. Rehman, Senior Advocate Supreme Court with Zaheer Ahmad Qadri, Advocate Supreme Court for Petitioner.
Mehr Khan Malik, Advocate-on-Record.
Respondent in person.
Date of hearing: 31st October, 2003.
2004 S C M R 367
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Iftikhar Muhammad Chaudhry and
Rana Bhagwandas, JJ
MADAD KHAN and others-- -Appellants
versus
Haji HAKIM GUL and others---Respondents
Civil Appeal No. 1169 of 1997, decided on 13tY. November, 2003.
(On appeal from the judgment dated 19-9-1997 of the Peshawar High Court passed in R. F. A. No. 13 of 1993).
Specific Relief Act (I of 1877)---
----S.12---Land Acquisition Act (I of 1894), S.16---Suit for specific performance of agreement to sell---Maintainability---During pendency of the suit, the land was acquired by the Authorities---Trial Court dismissed the suit for the reason that after acquisition, the vendor was no longer vested with the ownership rights in the property---High Curt, in exercise of appellate jurisdiction, allowed the appeal and remanded the case to the Trial Court---Validity---Acquisition of land did not in any manner frustrate the agreement of sale, for if a decree was granted for specific performance of the agreement, the vendee would step into the shoes of the vendor for the purpose of receipt of compensation awarded qua the acquisition---Judgment passed by High Court did not stiffer from any illegality and the case was rightly remanded to the Trial Court.
Joydeb Agarwala v. Baitulmal Karkhana Ltd. PLD 1965 SC 37; Pirzada Amir Hassan and others v. Mrs. Shamim Shah Nawaz and others 1984 CLC 3080 and Haji Hakeem Gul and others v. Madad Khan and others 1998 MLD 1260 ref.
Ch. Muhammad Akram, Advocate-on-Record for Appellants.
M. Ikram Ch., Advocate Supreme Court for Respondents.
Date of hearing: 13th November, 2003.
2004 S C M R 369
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ
SHAH MUHAMMAD ---Appellant
versus
ATTA MUHAMMAD ---Respondent
Civil Appeal No.Sl2 of 2000, decided on 30th April, 2002
(On appeal from the judgment of Lahore High Court, Multan Bench, dated 18-4-2000 passed in Civil Revision ~No.164 of 1995).
(a) Supreme Court Rules, 1980---
----O.XII, R.4(i)---Civil Procedure Code (V of 1908), O.XLV, R.1--Constitution of Pakistan (1973), Art. 185(2)---Appeal filed two years ago without decree of High Court---Effect--No effort was made by appellant till yet to bring on record decree-sheet---No explanation was offered for not placing on record decree-sheet---Supreme Court dismissed appeal being not maintainable.
Muhammad Jahangir Khan v. Government of the Punjab 1981 CLC 1474; Inam Gul v. Begum Ji 1980 CLC 530; Sana Ullah v. Ghulam Qadir PLD 1958 Pesh: 213; Baseer Ahmed Siddiqui v. Shama Afroz 1988 SCMR 892 and Sherin v. Fazal Muhammad 1995 SCMR 584 ref.
(b) Specific Relief Act (I of 1877)---
----S.42---Transfer of Property Act (IV of 1882), S.118---Constitution of Pakistan (1973), Art. 185(2)---Suit for declaration that exchange deed and mutation of exchange sanctioned on its basis were void on account of non7payment of Rs.75,000---Suit decreed by Trial Court was upheld by Appellate Court, but same was dismissed by High Court in revision filed by defendant---Validity---Execution of exchange deed and sanction of mutation on its basis was not denied---Plaintiff had neither demanded alleged amount at time of registration of exchange deed before Registrar nor taken any step to inform Revenue Authorities not to sanction mutation---No fraud had been committed on plaintiff nor there was any evidence in support of allegation of fraud---Condition of payment of such amount was not incorporated in exchange deed---Existence of exchange deed was not disputed---Non-payment of such amount would not undo transaction---Plaintiff could avail proper remedy for recovery of amount as consideration for exchange of land---Same being a question of fact could not be gone into by Supreme Court through reappraisal of evidence---Supreme Court dismissed appeal on merits.
Debi Prasad Singh and another v. Jaldhar Chaube and others AIR 1946 All. 125 ref.
Rana Abdur Rahim Khan, Senior Advocate Supreme Court and Anwar H. Mir, Advocate-on-Record (absent) for Appellant.
Mian Saeedur Rehman Farrukh, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record (absent.) for Respondent.
Date of hearing: 30th April, 2002.
2004 S C M R 375
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry and Khalil-ur-Rehman Ramday, JJ
ZEBA KHAN--Petitioner
versus
STATION HOUSE OFFICER, POLICE STATION GULBERG, LAHORE and another---Respondents
Civil Petition -No.846-L of 1999, decided on 28th May, 2002.
(On appeal from the judgment/order dated 18-3-1999 passed by Lahore High Court, Lahore in Intra-Court Appeal No.625 of 1998).
Constitution of Pakistan (1973)---
----Art.185(3)---Withdrawal of petition---Observations made in impugned judgment were of tentative nature---If any complaint was filed by petitioner for redressal of grievance, that would be dealt with independently in, accordance with law uninfluenced by observations made in the impugned judgment---Supreme Court dismissed petition as withdrawn with such observations.
Ms. Asma Jehangir, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Petitioner.
Nemo for Respondents
Date of hearing: 28th May, 2002.
2004 S C M R 376
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
STATE LIFE INSURANCE CORPORATION--Petitioner
versus
Mst. NUSRAT IMTIAZ and others ---Respondents
Civil Petitions Nos. 1293-L and 1294-L of 2002, decided on 29th April, 2002.'
(On appeal from the judgment dated 26-6-2001 passed by Lahore High Court, Lahore in Writ Petition No.6041 of 1998).
Establishment of Office of the Wafaqi Mohtasib (Ombudsman) Order (I of 1983)---
----Arts.11 & 32---Constitution of Pakistan (1973), Arts. 185(3) & 199--- Constitutional petition---Encroachment on respondents' land by petitioner (State Life Corporation) claiming ownership through hostile and Adverse possession ---Mohtasib directed petitioner to vacate such land---Review petition filed by petitioner-was dismissed, but its representation filed before President was accepted---Respondents challenged such acceptance through Constitutional petition, which was allowed by the High Court--Validity---Land owned by petitioner arid that owned by respondents fell in two different Khasra numbers-- -Neither petitioner nor its predecessor in-interest had ever bought land claimed by respondents---Conduct of petitioner organization run by the State owning considerable land at the place in question and then encroaching upon someone else's property and claiming ownership over such usurped land through adverse possession against owners of petty pieces of land was deprecated---Supreme Court dismissed petition and refused leave.
Rana Abdur Rahim Khan, Advocate Supreme Court and 'Tanvir Ahmed, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 29th April, 2002.
2004 S C M- R 378
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ
ZAFAR IQBAL and others---Petitioners
Versus
AKRAM ALI and others---Respondents
Civil Petition No.744-L of 1999, decided on 7th- May, 2002.
(On appeal from the judgment dated 18-3-1999 passed by the Lahore High Court, Lahore in Regular Second Appeal No.91 of 1998).
Specific Relief Act (I of 1877)---
--S.12---Constitution of Pakistan (1973), Art. 185(3)---Suit for specific performance of agreement to sell---Dismissal of suit by Courts below--Validity--Statements of plaintiff's witnesses were contradictory to each other in material particulars---Scribe had categorically stated that agreement to sell was not executed by defendant---Record Keeper from office of Excise arid Taxation had stated that according to record for relevant year, no stamp paper was purchased by defendant on relevant date or thereafter---Subsequent purchasers from defendant had proved lack of notice or knowledge of alleged agreement to sell---Courts below had disbelieved factum of execution of agreement to sell---Concurrent findings of fact did not suffer from any misreading or non-reading of evidence---Supreme Court dismissed petition in. circumstances.
Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court and Syed Abul Aasim Jafri, Advocate-on-Record (absent) for Petitioners.
Nemo for Respondents.
Date of hearing: 7th May, 2002.
2004 S C M R 380
[Supreme Court of Pakistan]
Present: Javed Iqbal and Tanvir Ahmed Khan, JJ
Mst. SADDO MAI and others---Petitioners
versus
ALI TAHIR SHAH and others---Respondents
Civil Petition for Leave to Appeal, No.74-L of 2002, decided on 22nd May, 2002.
(On appeal from the judgment dated &11-2001 of the Lahore High Court, Lahore passed in Civil Revision No.641 of 1993).
Specific Relief Act (I of 1877)---
----S.42---Constitution of Pakistan (1973), Art. 185(3)---Suit for declaration by plaintiffs claiming to be owners on basis of Nautore and adverse possession ---Dismissal of suit by -Courts below--- Validity--Plaintiffs had failed to prove that their predecessor-in-interest had entered upon disputed land as a result of Nautore---Plaintiffs could not bring any document on record to establish all terms and conditions of Nautore between parties---Plaintiffs having been shown in Revenue Record as tenants of disputed property could not be termed as owners thereof---Status of plaintiffs to be that of tenants was proved through confidence-inspiring oral evidence---Plaintiffs on basis of permissive possession could not succeed on plea of adverse possession---Factual controversy determined by Courts below 'on basis of oral and documentary evidence in favour of defendants was maintained by High Court on critical appraisal of plea taken by parties---Impugned order not suffering from any legal infirmity, Supreme Court dismissed petition and refused leave.
PLD 1986 SC 1991; PLD 19891SC 485 and 1991 SCMR 2063 ref.
Mian Muhammad Nawaz, Advocate Supreme Court for Petitioners.
Nemo for Respondents.
Date of, hearing: 22nd May, 2002.
2004 S C M R 383
[Supreme Court of Pakistan]
Present: Abdul Hameed Dogar and Faqir Muhammad Khokhar, JJ
SHAFQAT ANEES and 2 others---Petitioners
versus
KARAMAT ALI and 3 others---Respondents
Civil Petition No.816-L of 2002, decided on 17th April, 2002.
(On appeal from the judgment dated 29-1-2002 of the Lahore High Court, Lahore passed in Civil Revision No. 168 of 2002).
Constitution of Pakistan (1973)---
----Art.l85(3)---Withdrawal of petition---Petitioners did not press petition as they wanted to raise all legal points before the Appellate Court, where appeal filed by respondents against dismissal of their suit was pending---Supreme Court dismissed petition as withdrawn.
Ch. Khan Muhammad Bajwa, Advocate Supreme Court instructed by S. Abul Aasim Jafri, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 17th April, 2002.
2004 S C M R 384
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Mian Muhammad Ajmal, JJ
PASSCO‑‑‑Petitioner
versus
SIDDIQUI & COMPANY ‑‑‑Respondents
Civil Petition No. 1024‑L of 1999, decided on 4th July, 2002.
(On appeal from the judgment of the Lahore High Court, Lahore, dated 14‑5‑1999 passed in Civil Revision No.3398 of 1994).
Arbitration Act (X of 1940)‑‑‑
‑‑‑‑Ss.17 & 33‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Objections to award‑‑‑High Court remanded case for disposal of objections filed by respondents against award‑‑‑Respondents decided not to press objections and accept amount awarded to them under award‑‑‑Supreme Court directed respondents to make statement before Trial Court for withdrawal of objections, whereupon Trial Court would proceed to make award the rule of Court‑‑‑If other respondents did not agree to make such statement, then they would be at liberty to get the petition resurrected for disposal on merits‑‑‑Supreme Court disposed of petition as having borne fruits subject to such observations.
Muhammad Akram Khawaja, Advocate Supreme Court and Ejaz Ahmed Khan, Advocate‑on‑Record for Petitioner.
Respondent No.2 in person.
Date of hearing: 4th July, 2002.
2004 S C M R 386
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ
SARDAR SHAH and another‑‑‑Petitioners
versus
PROVINCE OF PUNJAB through Collector and another‑‑‑Respondents
Civil Petition for Leave to Appeal No. 1352‑L of 2002, decided on 9th May, 2002.
(On appeal from the judgment dated 27‑3‑2002 of the Lahore High Court, Bhawalpur Bench, Bahawalpur, passed in Civil Revision No.310‑D of 1988).
Cholistan Development Authority Act (1976)‑‑‑
‑‑‑‑Preamble‑‑‑Land falling within jurisdiction of Cholistan Development Authority‑‑‑Collector not Competent Authority to allot or sell such land.
Sh. Hakim Ali, Advocate Supreme Court, Ozair Chughtai, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 9th May, 2002.
2004 S C M R 387
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ
SAID ALI ‑‑‑Petitioner
versus
SAFDAR ALI and others ‑‑‑Respondents
Civil Petition for Leave to Appeal No.808‑L of 1999, decided on 9th May, 2002.
(On appeal from order of Lahore High Court, Multan Bench, Multan dated 9‑4‑1999 passed in Civil Revision No. 1120 of 1994).
Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑Ss.115 & 151‑‑‑Limitation Act (IX of 1908), Art.181‑‑‑Dismissal of revision after its admission to regular hearing‑,‑Application for restoration was made after six months‑‑‑Plea of petitioner was that clerk of his counsel had missed to note date of hearing in the diary of the counsel‑‑‑High Court disallowed prayer‑‑‑Validity‑‑‑Ground urged in such belated application was neither sufficient nor plausible to deprive respondents of valuable rights accrued to them by passage of time‑‑‑High Court had exercised discretionary jurisdiction‑‑‑Supreme Court would not interfere with exercise of such discretion, unless same had been exercised arbitrarily or in contravention of settled principles of law, justice and equity‑‑‑Contention of petitioner that no period of limitation was prescribed for restoration of civil revision and. thus, he could move application within three years, was not accepted being not in consonance with letter and spirit of law‑‑‑Petitioner did not have a strong case on merits as dispute related to ancestral property, of which gift was claimed in his favour depriving his brothers and sisters of their due shares in inheritance‑‑‑Both Courts below had found against the petitioner‑‑‑Substantial justice had been done to the parties‑‑‑No substantial question of law of general public importance having been raised in petition, Supreme Court dismissed petition.
Muhammad Sadiq v. Mst. Bashiran PLD 2000 SC 820 distinguished.
Hafiz Abdur Rehman Ansari, Advocate Supreme Court and Sh. Masood Akhtar, Advocate‑on‑Record for Petitioner.
Syed Fazal Abbas, Advocate Supreme Court and Sh. Salah‑ud-Din, Advocate‑on‑Record for Respondents.
Date of hearing: 9th May, 2002.
2004 S C M R 390
[Supreme Court of Pakistan]
Present: Jayed Iqbal and Tanvir Ahmed Khan, JJ
SARDAR MUHAMMAD and others‑‑‑Petitioners
versus
MEMBER (CONSOLIDATION), BOARD OF REVENUE and others‑‑‑Respondents
Civil Petition for Leave to Appeal No.692‑L of 2002, decided on 20th May, 2002.
(On appeal from the judgment/order, dated 23‑1‑2002 passed by Lahore High Court, Lahore, in Writ Petition No.11373 of 1998).
West Pakistan Consolidation of Holdings Ordinance (VI of 1960)‑‑‑
‑‑‑‑Ss.10 & 11‑‑‑Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑Constitutional petition challenging consolidation scheme was dismissed by High Court‑‑‑Validity‑‑‑All right holders were heard on 30‑6‑1993 and they had not raised any objection concerning consolidation proceedings‑‑‑Petitioners had participated voluntarily and accepted Tarika‑e‑Taqseem by affixing their thumb‑impressions‑‑‑Constitutional petition was filed on 19‑9‑1996 without showing reason for such inordinate delay‑‑‑Petitioner could not justify as to why forums available in revenue hierarchy were not approached for alleged irregularities or infirmities made during process of consolidation‑‑‑Alleged omission or error could be rectified by approaching the quarters concerned available in revenue hierarchy‑‑‑Re‑consolidation would depend upon wishes of the majority of right holders subject to all legal exceptions for which proper forum could be approached‑‑‑Supreme Court dismissed petition in circumstances.
Ch. Hafeez Ahmad, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Petitioners.
Nemo for Respondents.
Date of hearing: 20th May, 2002.
2004 S C M R 392
[Supreme Court of Pakistan]
Present: Rana Bhagwandas, Sardar Muhammad Raza Khan and Khalil‑ur‑Rehman Ramday, JJ
Mst. RESHMAN BIBI ‑ ‑Petitioner
versus
AMIR and others‑‑‑Respondents
Civil Petition for Leave to Appeal No. 1740‑L of 1999, decided on 9th July, 2002. , (On appeal from the judgment dated 19‑8‑1999 of the Lahore High Court, Multan Bench, Multan in Civil Revision No.454‑D of 1999).
(a) Adverse possession‑‑‑
‑‑‑‑ Claim of adverse possession by co‑sharer‑‑‑Scope‑‑‑One co‑sharer is an owner in each and every inch of joint property‑‑‑No co‑sharer, in such circumstances, can claim adverse possession.
(b) Adverse possession‑‑‑
‑‑‑‑Raising pleas of adverse possession and absolute ownership at the same time‑‑‑Validity‑‑‑Adverse possession is not referable to a lawful title---Both pleas are destructive of each other.
(c) Co‑sharer‑‑‑
‑‑‑‑Co‑sharership is the result of devolution of inheritance Co‑heirs become co‑sharers, the moment inheritance opens‑‑‑Even entry of mutation etc., is also not necessary.
Tanvir Ahmad, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing: 9th July, 2002.
2004 S C M R 394
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Sardar Muhammad Raza Khan, JJ
Mst. RABIA BIBI and others‑‑‑Petitioners
versus
GHULAM RASOOL and others‑‑‑Respondents
Civil Petition No. 1892‑L of 2002, decided on 18th June, 2002.
(On appeal from the judgment dated 24‑4‑2002 of the Lahore High Court, Lahore, in Civil Miscellaneous No. 114‑C of 2002 and in Civil Revision No.392 of 1992).
(a) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑S.115‑‑‑Dismissal of revision petition in default of appearance‑‑Scope‑‑‑While exercising revisional jurisdiction, matters should not be dismissed in default ordinarily and in routine‑‑‑Court should be liberal in restoring matters, if so dismissed‑‑‑Principles.
Exercise of revisional jurisdiction is a matter between superior and inferior Courts and superior Court has to look into the propriety of impugned order regardless of whether the action is taken on the information/application of somebody or superior Court exercises jurisdiction suo motu. This principle is invoked only to stress that while exercising revisional jurisdiction, the matters should not be dismissed in default ordinarily and in routine.
Once it has been so dismissed, the Courts should be liberal in restoring the matters.
(b) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑S.115‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Revision petition dismissed in default of appearance was restored on payment of costs‑‑‑Validity‑‑‑Such order could not be taken an exception to, as parties would now have an occasion to be heard properly ‑‑‑Supreme Court dismissed petition and refused leave.
Shaukat Ali Mehr, Advocate Supreme Court for Petitioners
Nemo for Respondents
Date of hearing: 18h June, 2002.
2004 S C M R 396
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Faqir Muhammad Khokhar, JJ
LAHORE GYMKHANA and another‑‑‑Petitioners
versus
GOVERNMENT OF PAKISTAN and others‑‑‑Respondents
Civil Petitions Nos.317‑L, 321‑L and 347‑L of 1999, decided on 10th December, 2002.
(On appeal from the judgment of the Lahore High Court, dated 15‑12‑1998, passed in Writ Petitions Nos.26596, 22818 and 23785 of 1997, respectively).
Central Excises Act (I of 1944)‑‑‑
‑‑‑‑Ss. 2(10), 3 & 12‑A‑‑‑Notification S.R.O. No. 546(1)/94, dated 9‑6‑1994 and Notification S.R.O. No.456(1)/96, dated 13‑6‑1996‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Excise duty on clubs‑‑Exemption‑‑‑Petitioners/clubs sought exemption from payment of excise duty on the basis of Notification S.R.O. No.546(1)/94, dated 9‑ti‑1994‑‑High Court in exercise of Constitutional Jurisdiction declined to grant exemption to the petitioners/clubs‑‑‑Validity‑‑‑Term club' had been defined in Central Excises and Salt Act, 1944, and according to the definition of the same, the petitioners fell within the ambit of the term and were liable to be dealt with accordingly in the matter of payment or otherwise of the duty‑‑‑Supreme Court declined to interfere with the judgment passed by High Court‑‑‑Leave to appeal was refused .
Dr. A. Basit', Advocate Supreme Court for Petitioners.
A. Karim Malik, Advocate Supreme Court for Respondents.
Date of hearing: 10th December, 2002.
2004 S C M R 400
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ
FARZAND RAZA NAQVI and 5 others ‑‑‑Petitioners
versus
MUHAMMAD DIN through Legal Heirs and others‑‑‑Respondents
Civil Petition No. 147 of 2002, decided on 26th September, 2002.
(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, dated 22‑11‑2001 passed in Writ Petition No. 1381 of 1994).
(a) Constitution of Pakistan (1973)‑‑
‑‑Art.199‑‑.‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑Statutory remedy, availability of‑‑‑Effect‑‑‑If remedy of appeal is available to a party under statute, the Constitutional .jurisdiction of High Court under Art. 199 of the Constitution cannot be invoked without availing such statutory remedy‑‑‑Remedy of Constitutional petition cannot be allowed to be availed as substitute of appeal‑‑‑High Court, in normal circumstances, should not entertain Constitutional petition, if an alternate remedy under the relevant statute is available to a party‑‑‑Such rule does not , create bar of jurisdiction rather it regulates the Constitutional jurisdiction of High Court and thus in exceptional circumstances, High Court may exercise its Constitutional, jurisdiction in a matter in which statutory remedy of appeal or revision as the case may be, was available but could not be availed‑‑‑Order impugned in Constitutional petition, if is a void order or it has been passed without lawful jurisdiction, the non‑availing of alternate remedy of appeal, review or revision against such order would not debar High Court to proceed in Constitutional jurisdiction and declare such order as without lawful authority‑‑‑Rule that High Court should not entertain Constitutional petitions and adjudicate the matter in its Constitutional jurisdiction in which remedy of appeal, review or revision is available under the statute, is not an absolute rule and in exceptional cases the strict observance of the rule that extraordinary remedy of Constitutional petition cannot be availed fn a matter in which relief being sought under Art. 199 of the Constitution could be granted by way of appeal, review or revision may cause injustice in substance, therefore, application of such rule would depend on the facts and circumstances .of each case.
(b) Constitution of Pakistan (1973)‑‑‑
‑‑‑Art.199‑‑‑Constitutional petition ‑‑‑Laches‑‑‑Limitation‑‑‑Distinction‑‑Principles‑‑‑No exception to the rule that delay in seeking remedy of appeal, review or revision beyond the period of limitation provided under the statute, in absence of reasonable explanation, cannot be condoned and in the same manner if remedy of Constitutional petition is not availed reasonable time, the interface can be refused on the ground of laches‑‑‑Laches cannot be equated with limitation and by itself is not a sufficient ground to non‑suit a person if the equities are not against him and he has not been sleeping over his right or was not indolent‑‑‑Question of laches in Constitutional petition is always considered in the light of conduct of the person invoking the Constitutional jurisdiction of High Court‑‑‑Degree of negligence of petitioner, if any and that if by grant of relief being sought by him‑no injustice is caused to the opposite‑party, the Constitutional petition should not be dismissed merely on the ground of laches without examining‑the dictates of justice ‑‑‑Laches in simplest form mean failure of a person to do something which should have been done by him within reasonable time and is not synonymous with delay alone but it can be worked out to the disadvantage to another person in the matter of his right‑‑‑Court, in suitable cases, in its discretionary jurisdiction, subject to offering of reasonable explanation, can condone delay in filing an appeal, review or revision, as the case may be, and similarly can also ignore delay, if any, in filing of Constitutional petition in the interest of justice.
(c) Civil Procedure Code. (V of 1908)‑‑‑
‑‑‑‑OAX, R.6‑‑‑Ex parte order‑‑‑Duty of Trial Court‑‑‑Administration of justice‑‑‑Despite of non‑representation of defendants in suit, Trial Court was under legal obligation to attend to the important questions relating to maintainability of suit and genuineness of claim of plaintiff arising out of pleadings of the parties and decide the suit on merits to avoid any, injustice to any party in his absence‑‑‑Interest of administration of justice always demands that one should not be allowed to get any benefit in absence of his opponent to which he is not entitled in law.
(d) Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S.42‑‑‑Civil Procedure Code (V of 1908), O.IX, R.6‑‑‑Constitution of Pakistan (1973), Arts.185(3)‑&‑199‑‑‑Ex parte decree, passing of‑‑Duty of Trial Court‑‑‑Setting aside of ex parte decree by High Court in Constitutional jurisdiction‑‑‑Plaintiffs after losing claim of ownership of house in question up to the level of High Court in first round of litigation, filed suit seeking the same relief‑‑‑Trial Court without attending to the questions relating to maintainability of suit and determination of claim of plaintiffs regarding ownership of the house, which was in possession of defendants as owner through their predecessor‑in‑interest, decreed the suit‑‑‑Defendants assailed the decree before High Court in exercise of its jurisdiction under Art. 199 of the Constitution, on the ground that due to paralysis attack, their predecessor‑in‑interest remained confined to bed and could not pursue the matter effectively with the result that the ex parte decree as well as the order of dismissal of the application for setting aside the ex parte decree could not be challenged by him through an appeal and further effort made by him to resist the execution of decree also failed‑‑‑High Court allowed the petition, ex parte decree was set aside and the case was remanded to Trial Court for decision on merits‑‑‑Validity‑‑‑Grant of ex parte decree in suit without determining the title of plaintiffs and pivotal question whether the house was part of the house of plaintiffs or it was an independent house would be nullity in law‑‑‑High Court keeping in view the concept of substantial justice had rightly interfered in the matter in Constitutional petition so that no injustice would be done to either party and had rightly set aside the ex parte decree and sent the case back to Trial Court for decision of the suit on merits‑‑‑Supreme Court declined to interfere with the order passed by High Court‑‑‑Leave to appeal was refused.
Zaheer Ahmad Qadri, Advocate Supreme Court and M. A Zaidi, Advocate‑on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing: 26th September, 2002.
2004 S C M R 407
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Mian Muhammad Ajmal, JJ
MUKHTAR AHMAD and another‑‑‑Petitioners
versus
Rana GHULAM RASOOL‑‑‑Respondent
Civil Petition No.926‑L of 2001, decided on 1st July, 2002.
(On appeal from the judgment of the Lahore High Court, Lahore, dated 15‑1‑2001 passed in Regular First Appeal No.126 of 1990).
Specific Relief Act (I of 1877)‑‑‑ .
‑‑‑‑S.12‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Suit for specific performance of agreement of sale‑‑Dispute as to actual amount of sale price‑‑‑Defendant's plea was that sale price mentioned in the original agreement was Rs.4,84,750 and not Rs.3,84,750 as interpolated in the last line of agreement registered subsequently‑‑‑Trial Court decreed the suit, which decree was upheld by Appellate Court and the High Court‑‑Validity‑‑‑Scribe of document as witness had been cross‑examined in relation to corrections alleged as interpolation made in figures of amount in the body of the document‑‑‑Scribe had not been questioned regarding entry of last line of agreement, wherein corrected amount of Rs.3,84,750 was written‑‑‑Defendants had not duly proved copy of original agreement‑‑‑Remaining entries as corrected in document had been duly proved by rue scribe‑‑‑Findings of Courts below that agreement was executed for consideration of Rs.3,84,750, out of which Rs. 1,70,000 wa1 paid as earnest money, was not suffering from any misreading or non‑reading or misconstruction of any material piece of evidence‑‑Supreme Court dismissed petition and refused leave.
Mirza Hafeez‑ur‑Rehman, Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record for Petitioners.
Nemo for Respondent:
Date of hearing: 1st July, 2002.
2004 S C M R 409
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ
Haji LAL SHAH and another‑‑‑Petitioners
Versus
ABDUL KHALIQ and another‑‑‑Respondents
Civil Petition No.72 of 2002, decided on 24th September, 2002
(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, Rawalpindi in Civil Revision No. 192 of 1997).
(a) Punjab Pre‑emption Act (IX of 1991)‑‑‑
‑‑‑‑S.13‑‑‑Talbs (demands), making of‑‑‑Procedure‑‑‑Requirement of Talb‑i‑Muwathibat is satisfied if the declaration is made by pre‑emptor immediately on coming to know about the sale‑‑‑After making Talb‑i-Muwathibat, if notice of Talb‑i‑Ishhad is given within the time prescribed therein, the requirement of Talb‑i‑Ishhad, is fulfilled.
(b) Punjab Pre‑emption Act (IX of 1991)‑‑‑
‑‑‑‑S.13‑‑‑Constitution of Pakistan (1973), Art.185 (3) ‑‑‑ Pre‑emption suit‑‑‑ Talb‑i‑Muwathibat, making of‑‑‑Failure to specify date of knowledge of sale‑‑‑Concurrent findings of fact by the Courts below‑‑Pre‑emptors as well as their witnesses had not specifically given in their statements before Trial Court, the date of coming to know about the sale ‑‑‑Pre‑emptors had simply stated that a declaration for exercise of right of pre‑emption was made immediately on receipt of information of sale‑‑‑All the Courts below concluded that the pre‑emptors had failed to fulfil the requirements of S.13 of Punjab Pre‑emption Act, 1991‑‑Validity‑‑‑If performance of Talb‑i‑Muwathibat and Talb‑i‑Ishhad was not satisfied in terms of S.13 of Punjab Pre‑emption Act, 1991, the preemptor would lose the right of pre‑emption ‑‑‑Concurrent findings of three Courts regarding non‑performance of essential conditions of Talb‑i‑Muwathibat and Talb‑i‑Ishhad for exercise of right of pre‑emotion were not suffering from defect of misreading or non‑reading of evidence‑‑Leave, to appeal was refused.
Abdul Qayyum v. Mushk‑e‑Alam 2001 SCMR 798 and Gul Hussain Shah v. Mulazim Hussain Shah 1996 SCMR 296 ref..
Gul Zarin Kiani, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Petitioners.
Nemo for Respondents
Date of hearing: 24th September, 2002.
2004 S C M R 412
[Supreme Court of Pakistan]
Present: Sheikh Riaz Ahmed, C.J., Sardar Muhammad Raza Khan and Faqir Muhammad Khokhar, JJ
Rai NAEEM SHAHADAT‑‑‑Petitioner
versus
Mst. QAMAR MUNIR and others‑‑‑Respondents
Civil Petition for Leave t6 Appeal No.3890‑L of 2001, decided on 2nd July, 2002.
(On appeal from the judgment dated 4‑10‑2001 of the Lahore High Court, Lahore in Writ Petition No.17330 of 2001).
West Pakistan Family Courts Act (XXXV of 1964)‑‑‑
‑‑S.5 & Sched.‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑Recovery of dowry articles‑‑‑Change of forum‑‑‑Suit for recovery of dowry articles was filed by wife in Civil Court, prior to amendment in West Pakistan Family Courts Act, 1964‑‑‑After the amendment, such recovery was included in the Schedule of the West Pakistan Family Courts Act, 1964, and the suit was decreed by Family Court in favour of wife‑‑‑Judgment and decree passed by Family Court was maintained by Appellate Court as well as by High Court‑‑‑plea raised by husband was that Family Court had no jurisdiction over the matter as the same was filed before Civil Court‑‑‑Validity‑‑‑By the change of forum, nobody would have a vested right to a particular forum to try his lis‑‑‑Change of forum was a procedural matter and the same operated retrospectively‑‑‑. Supreme Court declined to interfere with the judgments and decrees passed by the Courts below‑‑‑Leave to appeal was refused.
Adnan Afzal v. Cap. Sher Afzal PLD 1969 SC 187 fol.
Ch. Arshad Mahmood, Advocate Supreme Court and Syed A. Aasim Jafri, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing: 2nd July, 2002.
2004 S C M R 413
[Supreme Court of Pakistan]
Present: Sheikh Riaz Ahmad, C.J., Mian Muhammad Ajmal and
Muhammad Nawaz Abbasi, JJ
Syed IKHLAQ AHMED ‑‑‑Petitioner
versus
ADMINISTRATOR (RESIDUAL PROPERTIES)/
ADDITIONAL COMMISSIONER (REVENUE), LAHORE DIVISION, LAHORE and 3 others‑‑‑Respondents
Civil Review Petition No.100 of 2002, decided on 19th November, 2002.
(On review of the judgment of this Court dated 9‑4‑2002 passed in Civil Appeal No.640 of 1995).
Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art.188‑‑‑Supreme Court Rules, 1980. O.XXVI, R.1‑‑‑Review of Supreme Court judgment‑‑‑Points already considered‑‑‑Re‑opening of matter‑‑‑Grounds urged by petitioner in support of the review petition had already been considered at length in the judgment under review and the same had been found without any substance‑‑‑Petitioner without pointing out any patent error on the fact of record in the judgment, wanted to re‑open the matter and re‑argue the grounds already taken in appeal‑‑‑Validity‑‑‑Supreme Court declined to interfere with the judgment passed earlier‑‑‑Review petition was dismissed.
Ch. Khurshid Ahmed Khan, Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record (absent) for Petitioner.
Nemo for Respondents.
Date of hearing: 19th November, 2002.
2004 S C M R 415
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ
MUHAMMAD SULEMAN‑‑‑Petitioner
versus
ABDUL SATTAR ‑‑‑Respondent
Civil Petition No.3380‑L of 2002, decided on 23rd September, 2002.
(On appeal from the judgment of Lahore High Court, Lahore, dated 22-8-2002 passed in First Appeal from Order No. 184 of 2001) .
(a) Cantonments Rent Restriction Act (XI of 1963)‑‑‑
‑‑‑‑S.24‑‑‑Constitution of‑ Pakistan (1973), Art. 185(3)‑‑‑Appeal‑‑Maintainability‑‑‑Failure to implead necessary parties‑‑‑Plea of subletting of premises was raised by landlord‑‑‑Rent Controller allowed ejectment application and eviction order was passed against tenants‑‑‑Original tenant did not file any appeal against the eviction order but the petitioner who was occupant of the premises filed the appeal‑‑‑High Court dismissed the appeal on the ground of non‑impleading of the original tenant in the appeal‑‑‑Contention of the petitioner was that he was in possession of the premises as tenant in his own right, therefore, defer; of non‑impleading of original tenant in appeal would not render same incompetent‑‑‑Validity‑‑‑Original tenant was necessary party, therefore, failure to implead him was fatal to the appeal‑‑‑Premises was rented out to original tenant and the tenancy continued in his name without any change till the filing of ejectment petition by the landlord‑‑‑In absence of any proof of delivery of possession of premises to the petitioner by original tenant with the permission of landlord or acknowledgement of the status of the petitioner as tenant of the premises, the petitioner would be deemed to be in occupation of premises through original tenant and would have no independent right to retain the possession and resist the ejectment ‑‑‑Supreme Court declined to interfere with the judgment passed by High Court‑‑‑Leave to appeal was refused.
(b) Cantonments Rent Restriction Act (XI of 1963)‑‑‑
‑‑‑‑S.17 (2) (II) (a)‑‑‑Ejectment of tenant‑‑‑Subletting of premises‑‑‑Right of occupant of premises‑‑‑Principle‑‑‑In absence of any proof of delivery of possession of premises to occupant by original. tenant with the permission of landlord or acknowledgement of the status of the occupant as tenant of the premises, the occupant would be deemed to be in occupation of premises through original tenant and would have no independent right to retain the possession and resist the ejectment petition.
Ch. Ehsan Sabri, Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record for Petitioner.
Nemo for Respondent.
Date of hearing: 23rd September, 2002.
2004 S C M R 418
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal, Abdul Hameed Dogar
and Muhammad Nawaz Abbasi, JJ
REHMAN‑UD‑DIN and another Petitioners
versus
Sahibzada JEHANZER ‑‑‑ Respondent
Civil Petition No. 156‑P of 2002, decided on 6th June, 2002.
(On appeal from the judgment of Peshawar High Court, Peshawar, dated 25‑2‑2002 passed in C.R. No. 113 of 1997).
(a) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑
‑‑‑‑S.24‑‑‑Civil Procedure Code (V of 1908), S.148‑‑‑Pre‑emption money (Zar‑e‑Soem), non‑deposit of‑‑‑Effect‑‑‑Extension of time by Trial Court for deposit of pre‑emption money‑‑‑Scope‑‑‑Requirement of the law is that if the pre‑emptor satisfies the condition with regard to deposit of 1 /3rd of pre‑emption money, the suit proceeds and in case of committing any default in deposit of the pre‑emption money, the suit is dismissed‑‑‑If pre‑emptor is not vigilant in exercising right of preemption, no discretion can be exercised in his favour and he must face consequences of dismissal of suit as the Court in such cases is not supposed to condone the default while exercising power under S.148, C.P.C. by, taking away the valuable right of opposite‑party ‑‑‑Pre‑emptor having failed to deposit 1/3rd preemption money not due to act of Court but as a result of his gross negligence, the suit was rightly dismissed by Trial Court.
(b) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑
‑‑‑‑S.24‑‑‑Pre‑emption money (Zar‑e‑Soem)‑‑‑Deposit through official of Trial Court ‑‑‑Effect‑‑‑Pre‑emptor for his own convenience handed over amount of pre‑emption money to clerk of Trial Court for deposit without any order of the Court which he did not deposit in time‑‑‑Preemptor contended that he should not be made to suffer due to an act of Court‑‑‑Validity‑‑‑If an act of an official of Court was not related to his official duty, it was not an act of Court‑‑‑Plea of vigilance was not available to the pre‑emptor as he wrongly handed over the amount to the clerk for deposit and was negligent in verifying from the record about the deposit ‑‑‑Pre‑emptor by his conduct would be estopped to plead his vigilance in circumstances.
(c) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑
‑‑‑‑S.24‑‑‑Civil Procedure Code (V of 1908), S.148‑‑‑Pre‑emption money (Zar‑e‑Soem), non‑deposit of‑‑‑Extension of time‑‑‑Trial Court was not supposed to pass a fresh order for deposit of 1/3rd pre‑emption money on expiry of the period given for deposit of the same‑‑‑When such money was not deposited within the time so given, the pre‑emption suit would automatically stand dismissed without a f6rmal order‑‑‑Grant of further time to deposit 1/3rd pre‑emption money after dismissal of suit under S.24(2) of North‑West Frontier Province Pre‑emption Act, 1987, was not legal.
(d) North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑
‑‑‑‑S.24‑‑‑Civil Procedure Code (V of 1908), 5.148‑‑‑Constitution of Pakistan (1973), Art. 1215(3)‑‑‑Pre‑emption money (Zar‑e‑Soem), non-deposit of‑‑‑Extension of time‑‑‑Scope‑‑‑Plea raised by pre‑emptor was that he handed over the money to one of the officials of Trial Court and the official filed a fake receipt of deposit of the money‑‑‑Trial Court dismissed the suit under S.24(2) of North‑West Frontier Province Preemption Act, 1987‑‑‑Appellate Court allowed the appeal and extended time under S.148, C.P.C. for deposit of pre‑emption money (Zar‑eSoem)‑‑‑Judgment and decree passed by Appellate Court was upheld by High Court‑‑‑Validity‑‑‑Appellate Court was competent to extend time for deposit of the pre‑emption money under S.148, C.P.C. but such discretion could not be exercised to defeat the very purpose of law rather such discretion could only be exercised in exceptional circumstances and cases‑‑‑Failure of pre‑emptor to deposit 1/3rd preemption money within the time given by Trial Court, if was found due .to an error or act of the Court and was not intentional, the pre‑emptor would be entitled for extension of time under S.148, C.P.C. but if default in deposit was due to fault of pre‑emptor himself, there would be no justification to exercise discretion in his favour‑‑'‑ Necessary element to judge diligence of a litigant was degree of care taken by him and manner in which he conducted himself and thus question whether or not a person acted diligently and was not negligent, would depend on circumstances of each case and could not be determined on the basis of any settled principle ‑‑‑Pre‑emptor, in the present case, was negligent as he was not vigilant in the matter, therefore, enlargement of time in exercise of discretionary jurisdiction under S.148, C.P.C. for deposit of 1/3rd pre‑emption money, after dismissal of suit, by condoning fault of pre‑emptor, who failed to deposit 1/3rd pre‑emption money in compliance of order of Trial Court, in absence of a good reason, amounted to defeat the law and caused injustice to the opposite‑party‑‑Supreme Court converted petition for leave to appeal into appeal, set aside judgment of High Court as well as Appellate Court and restored the order of, dismissal of suit, passed by the Trial Court‑‑‑Appeal was allowed.
Abdul Aziz Kundi, Advocate Supreme Court/Advocate‑on-record for Petitioners.
Qazi Muhammad Anwar, Advocate Supreme Court and Fateh Muhammad Khan, Advocate‑on‑Record (absent) for Respondent.
Date of hearing: 6th June, 2002.
2004 S C M R 425
[Shariat Appellate Jurisdiction]
Present: Justice Qazi Muhammad Farooq, Chairman, Justices Hamid Ali Mirza, Abdul Hameed Dogar, Dr. Allama Khalid Mehmood and
Dr. Rashid Ahmed Jullundhari, Members
STATE‑‑‑Petitioner
versus
KHUDA DAD and others‑‑‑Respondents
Shariat Criminal Petitions Nos.5(S) and 6(S) of 2002, decided on 25th April, 2003.
(On appeal from the judgment dated 12‑11‑2001 of the Federal Shariat Court, passed in Criminal Appeals Nos. 104/1 and 64/1 of 2001).
(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑
‑‑‑‑‑S.11‑‑‑Constitution of Pakistan (1973), Art. '185(3)‑‑Reappraisal of evidence‑‑‑ Offence of abduction‑‑‑Complainant not eye‑witness‑‑‑Accused not known to prosecution witnesses‑‑‑Incident of abduction was not witnessed by complainant who was sleeping inside the room at the time when his sister was abducted‑‑‑Prosecution witnesses informed the complainant about taking away of victim by accused‑‑‑Both the prosecution witnesses stated in their statements before Trial Court that the accused were not known to them prior to the occurrence‑‑‑Both the witnesses and the accused were residents of two distant cities and the witnesses had no occasion to see the accused prior to the incident‑‑Effect‑‑‑Trial Court had rightly acquitted the accused from the charges‑‑Judgment of acquittal passed by Trial Court did not suffer from any illegality and was based on proper appraisal of evidence‑‑‑Supreme Court declined to interfere with the judgment passed by Trial Court‑‑‑Leave to appeal was refused.
(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑
‑‑‑‑‑S.11‑‑‑Penal Code (XLV of 1860), S.362‑‑‑Abduction‑‑‑Proof‑‑Seeing abductee in the company of accused persons‑‑‑Effect‑‑‑Such seeing does not attract the ingredients of 5.11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979‑‑‑Ingredients of word `abduction' as defined in 5.362, P.P.C. are also to be examined in the light of the case of prosecution‑‑‑Where abductee was not abducted on show of force or in any deceitful manner, the offence of abduction was not proved.
(c) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑
‑‑‑‑‑S.13‑Abduction for the purpose, of prostitution‑‑‑Proof‑‑‑Evidence of abductee is the only relevant testimony to prove such abduction.
(d) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑
‑‑‑‑‑S.16‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Reappraisal of evidence‑‑‑Failure to recover abductee‑‑‑Complainant not eye‑witness of abduction‑‑‑Admission of complainant regarding illicit relations of abductee with the accused‑‑‑Trial Court convicted the accused under S.16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979‑‑Validity‑‑‑Trial Court had rightly convicted the accused and judgment passed by Trial Court did not suffer from any disqualification‑‑‑Supreme Court declined to interfere with the judgment passed by Trial Court‑‑Leave to appeal was refused.
(e) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑‑Ss. 410 & 417‑‑‑Appeal against conviction and appeal against acquittal‑‑‑Principles‑‑‑Criteria to decide appeal against conviction is different from that of appeal against acquittal‑‑‑Judgment of acquittal can only be interfered with if it ‑is found on the face of it as perverse, arbitrary, capricious or speculative.
M. Zaman Bhatti, Advocate Supreme Court for Petitioners (in both Criminal Petitions).
Nemo for Respondents (in both Criminal Petitions).
Date of hearing: 25th April, 2003.
2004 S C M R 431
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Falak Sher, JJ
MUHAMMAD RASHEED, STENOGRAPHER and others‑‑‑Petitioners
versus
GOVERNMENT OF PAKISTAN, MINISTRY OF COMMERCE, NATIONAL TARIFF COMMISSION, through Chairman, Islamabad arid others‑‑‑Respondents
Civil Petitions for Leave to Appeal Nos. 1231 to 1242 of 2003, decided on 10th December, 2003.
(On appeal from the judgment/order of the Federal Service Tribunal; Islamabad, dated 20‑3‑2003, passed in Appeals Nos.69(R)CS to 80(R)CS of 2002).
Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S.4‑‑‑Civil Service Regulations, Regln.371‑‑‑Constitution of Pakistan (1973), Arts.25 & 212(3)‑‑‑Employees of National Tariff Commission‑‑Benefit of pension and G.P. Funds‑‑‑Entitlement‑‑‑Dismissal of appeal by Service Tribunal ‑‑‑Contention of petitioners was that Tribunal has not granted them equitable, relief, thus, they had been discriminated as employees of other Departments of Government had been allowed such benefit under orders of Supreme Court; and Tribunal while passing impugned judgment had .not agreed with interpretation of law made in its other judgment finding National Tariff Commission to be an attached Department of Ministry of Commerce and not a corporate body, which judgment had attained finality having not been challenged‑‑ ‑Supreme Court granted lave to appeal to consider such contention.
Divisional Superintendent, P.W. R. Karachi v. Bashir Ahmed PLD 1973 SC 589; Ahmad Khan v. Secretary to Government 1997 SCMR 1477 and Secretary, Railways Board ‑ Muhammad Zubair Rana PLD 2000 SC 61 ref.
Muhammad Zaman Bhatti, Advocate Supreme Court and Ch. Muhammad Akram, Advocate‑on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing: 10th December, 2003.
2004 S CM R 432
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Iftikhar Muhammad Chaudhry and Rana Bhagwandas, JJ
Qazi FAZAL AHMAD and, others‑‑‑Appellants
versus
RIAZ‑UR‑RAHIM and others‑‑‑Respondents
Civil Appeal No. 1196 of 1996, decided on 10th November, 2003
(On appeal from the judgment/order dated 28‑6‑1995 passed by Lahore High Court, Lahore in C.R. No.2768 of 1995).
Islamic Law‑‑‑
‑‑‑‑Inheritance‑‑‑Share of daughters in absence of son‑‑‑Declaration of title ‑‑‑Co‑sharers‑‑‑Limitation‑‑‑Dispute was with regard to sanction of inheritance whereby whole property of deceased owner was transferred in, the name of two daughters‑‑‑Plea raised by the plaintiffs was that in absence of son, the whole property could not be inherited by the daughters and sale of land by the daughters in excess of their share was void‑‑‑Validity‑‑‑In absence of son, two daughters, under Islamic Law could not inherit whole property and both of them could inherit 2/3rd share in the land devolved on them‑‑‑Remaining 1/3rd share had devolved on the collaterals of the deceased owner and they had become joint owners alongwith two daughters‑‑‑Suit was not barred to the extent of declaration that the sale of land made by the, daughters in excess of 2/3rd share was not valid and thus ineffective against 1/3rd share of the collaterals‑‑‑Suit filed by the plaintiffs was partly decreed and the plaintiffs and the other collaterals of the deceased owner were declared as entitled to inherit 1/3rd of the suit‑land‑‑‑Sale made in excess of 2/3rd of the share was invalid and ineffective against the rights of collaterals‑‑Appeal was allowed by the Supreme Court accordingly.
Ch. Muhammad Aslam Sindhu, Advocate Supreme Court for Appellants.
S. Najamul Hassan Kazimi, Advocate Supreme Court for Respondents, Nos.1 to 22.
Respondents Nos.23‑‑30 Ex parte.
Date of hearing: 10th November, 2003.
2004 S C M R 436
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Iftikhar Muhammad Chaudhry and Rana Bhagwandas, JJ
FAZAL‑UR‑REHMAN ‑‑‑ Appellant
versus
AHMED SAEED MUGHAL and others‑‑‑Respondents
Civil Appeals Nos. 6 and 7 of 1998, decided on 30th October, 2003.
(On appeal against the judgment passed by Lahore High Court, Rawalpindi Bench, Rawalpindi in R.F.As. Nos.25 and 26 of 1997):
Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S.12‑7‑Contract Act (IX of 1872), S.55‑‑‑Specific performance of agreement to sell‑‑Time as essence of contract:‑‑Right of rescission of contract, non‑exercise of‑‑‑Agreement revealed that it was settled by both the parties that time was intended `to be the essence of the contract and in case of default in the payment of any of the instalment, earnest money already .paid' would stand forfeited‑‑‑Trial Court dismissed the suit on the ground that the plaintiff failed to perform his part in due time‑‑Judgment and decree passed by the Trial Court was maintained by High Court‑‑‑Plea raised by the plaintiff was that the time was not. essence of the contract and acquisition proceeding's .had the effect of creating defect in the title of the defendant, therefore, he had the option to rescind the contract‑‑‑Validity‑‑In view of express terms time was the essence of the contract‑‑‑Even if the plaintiff was vested with the right either to rescind or maintain, the contract, he did not exercise the right of rescission thus he was bound to perform the agreement at the due date‑‑Findings of fact recorded by two Courts below that the time was of the essence of the contract and plaintiff had failed to perform his part on due date‑and time, did not suffer from any illegality such as misreading and non‑reading of the material available on record‑‑‑Supreme Court maintained the judgments and decrees passed by the Courts below and dismissed the appeal.
Associated Hotels of India Ltd. and others v. Jodha Mal Kothalia PLD 1954 FC 35; Joybed Agarwala v. Baitulmal Karkhana Ltd. PLD 1965 SC, 37; Hakeem Gul v. .Madad Khan 1998 MLD 1260 and Amir Hassan v. Shamim Shah Nawaz 1984 CLC 3080 ref.
Gul Zarin Kiani, Advocate Supreme Court with Ch. Akhtar Ali, Advocate‑on‑Record for Appellant.
Abdul Karim Khan Kundi, Advocate Supreme Court with Imtiaz Muhammad Khan, Advocate‑on‑Record for Respondents (in both Cases).
Date of hearing: 30th October, 2003.
2004 S C M R 440
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, C.J., Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ
EVACUEE TRUST PROPERTY BOARD and others‑‑‑Appellants
versus
AHMED and others‑‑‑Respondents
Civic Appeals Nos.719 and 720 of 1995, decided on 11th November, 2003.
(On appeal from the order dated 8‑12‑1993 of the Lahore High Court, Multan Bench, in Writ Petition No.837 of 1993).
Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---
‑‑‑‑Ss.8 & 14‑‑‑Jurisdiction of Civil Courts, ouster of‑‑‑Scope‑‑‑Ouster of jurisdiction under S.14 of Evacuee Trust Properties (Management and Disposal.) Act, 1975, had to be interpreted strictly and it could only operate if it had shown and proved that certain proceedings were without jurisdiction or coram non judice or the action of the Authorities was tainted with mala fides‑‑‑Entire ex parte proceedings initiated in Civil Court and the decree passed by it was coram non judice because in view of the ouster clause contained in S.14 of Evacuee Trust Properties (Management and Disposal) Act, 1975, 'the Civil Court had no jurisdiction to proceed in the ,matter‑‑‑Matter was remanded by the Supreme Court to the Chairman, Evacuee Trust Properties Board to determine the status of the disputed property.
Mufti Iftikhar‑ud‑Din v. Federal Government PLD 1992 FSC 188; Federation of Pakistan v. Iftikhar‑ud‑Din 2000 SCMR 1 ref.
Evacuee Trust Property Board v. Mst. Zakia Begum 1992 SCMR 1313 rel.
Hafiz S.A. Rehman, Deputy Attorney‑General and Qamar‑uz-Zaman, Advocate Supreme Court for Appellants.
Zafar Iqbal Chaudhri, Advocate Supreme Court for Respondents.
Date of hearing: 11th November, 2003.
2004 S C M R 443
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Abdul Hameed Dogar, JJ
MUHAMMAD ANWAR AZIM and another‑‑‑Petitioners
versus
R.I. G.B. EDUCATION BOARD through Director/General Secretary‑‑‑Respondent
Civil Petition for Leave to Appeal No.935‑K of 2002, decided on 22nd December, 2003.
(On appeal from the judgment/order of the High Court of Sindh at Karachi, dated 29‑7‑2002, passed in F.R.A. No.251 of 1999).
Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑
‑‑‑‑S.21‑A, proviso [as inserted by Sindh Rented Premises (Amendment) Ordinance (XIV of 2001)]‑‑‑Constitution ‑ of Pakistan ' (1973), Art. 185(3)‑‑‑Sindh Government Notification, dated 14‑‑4‑2001‑‑‑Appeals as were fixed for judgment before the High Court instead of transferring to the District Judge were to be disposed of by the High Court in view of S.21‑,A, Sindh Rented Premises Ordinance, 1979 [as inserted by Amending Ordinance, 2001]‑‑‑Concurrent findings of tact recorded by the Courts below, whereby eviction of tenant had been ordered, were question of fact and had rightly been decided by the Courts below‑‑‑High Court had considered the case in its proper perspective and impugned judgment was based entirely on the proper appreciation of facts and law and was not open to exception‑ ‑‑Leave to appeal against the order of High Court was refused.
Khyber Insurance Co. Ltd. v. Pakistan National Shipping Corporation P.LD 1994 SC 725; Usman Bhai v. Ali Imam Zaidi 1994 SCMR 1918; Mahmood Ahmad v. Muhammad Shafi 1981 CLC 389 and Binyameen. v. Hakim 1996 SCMR 336 distinguished.
Messrs Umer Khan v. Chief Engineer, Roads and Buildings H.C.A. No. 12 of 1977 and Ismail v. Sher Bano 1988 SCMR 722 ref.
Syed Haider Ali Pirzada, Advocate Supreme Court, Abdul Qadir Khan, Advocate Supreme Court and A. Aziz Khan, Advocate‑on‑Record for Petitioners.
Raja Qureshi, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate‑on‑Record for Respondent.
Date of hearing: 22nd December, 200.3.
2004 S C M R 449
[Supreme Court of Pakistan]
Present: Javed Iqbal and Khalil‑ur‑Rehman Ramday, JJ
CHAIRMAN, SARHAD DEVELOPMENT AUTHORITY, PESHAWAR and others‑‑‑Petitioners
Versus
Messrs SAID ANWAR & COMPANY and others‑‑‑Respondents
Civil Petition No.285‑P of 2001, decided on 21st October, 2003.
(On appeal from the judgment dated 30‑11‑2000 of Peshawar High Court, Peshawar, passed in R.F.A. No.38 of 1994).
Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O.I, R.10 & O.IX, RAI ‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider the significance and import of undertaking given by Provincial Government and whether the same could be equated to that of an agreement and enforced by filing a suit for specific performance; whether such suit would be maintainable and the undertaking would have binding effects on the Provincial Government; that who was the owner of the land regarding which an undertaking had been given by the Provincial Government; whether the undertaking given by the Provincial Government pertained to the land underneath the disputed property of the surrounding lands were also included in it; whether the possession of the disputed property had been handed over to the respondent which was taken over without any protest; whether it was a case of misjoinder or non‑joinder of necessary parties and application submitted for impleadment of necessary parties had been disposed of in accordance with law or otherwise; whether suit of plaintiff had been filed to achieve ill‑gotten gains with its ulterior and malicious intentions to avoid commitment and obligation qua the payment of the amount for the purchase of the disputed property'; whether Provincial Government was a party to the transaction made between the parties; whether the consenting order could hind down the Provincial Government when the consent was given only by the petitioner and whether the Provincial Government could file appeal in view of the ex parte proceedings already finalized against it.
Imtiaz Ali, Additional Advocate‑General and Haji M. A. Qayyum Mazhar, Advocate‑on‑Record for Petitioners.
Abdul Latif Yousafzai, Advocate Supreme Court and Syed Safdar Hussain, Advocate‑on‑Record for Respondents.
Date of hearing: 21st October, 2003.
2004 S C M R 452
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Abdul Hameed Dogar, JJ
NASIR AHMED ‑‑‑Petitioner
versus
Mrs. ZAHEER and 5 others‑‑‑Respondents
Civil Petitions Nos.365‑K and 366‑K of 2003, decided on 22nd December, 2003.
(On appeal from the judgment dated 25‑4‑2003 of the High Court of Sindh, Karachi, passed in C.P. Nos.95, 96, 199 and 200 of 2003).
(a) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑
‑‑‑‑Ss.10(2), 14, 15 & 23‑‑‑West Pakistan Civil Courts Ordinance (II of 1962), Ss. 10, 14, 15 & 23‑‑‑Government of Sindh Notification No.VII(3) SOJ/75 dated 14‑10‑1980‑‑‑All the Senior Civil Judges in the Province of Sindh were appointed as Rent Controller within their respective jurisdiction by virtue of Notification No.VII (3) SOJ/75 dated 14‑10‑1980 in exercise of powers under S.4, Sindh Rented Premises Ordinance, 1979‑‑‑Senior Civil Judges being the Rent Controllers had the jurisdiction to act as Rent Controllers within 'their respective territorial jurisdiction‑‑‑District Judge, under Ss. 14 & 15 of the West Pakistan Civil Courts Ordinance, 1962 could distribute the civil business of the subordinate Courts and thus was empowered to exercise the judicial as well as the administrative authority and was fully vested to withdraw a case from one subordinate Court and entrust the same to another Court for disposal in accordance with law‑‑‑When the High Court posts a West Pakistan Civil Judge to a District under S.10(2) of the Civil Courts Ordinance, 1962 the local limits of the District shall, in the absence of any direction to the contrary, would be deemed to be the local limits of jurisdiction of the District .Judge, under S.23 of the said Ordinance and he would be empowered to entrust the work temporarily of a vacant Civil Court to any other Civil Judge in the manner he deemed fit.
(b) Sindh Rented Premises Ordinance (XVII of 1979)‑‑‑
‑‑‑‑S.21 (1‑A) & (1‑E) (a) [as amended by Sindh Rented Premises (Amendment) Ordinance (XIV of 2001))‑‑‑Appeal, forum of‑‑‑Forum of appeal has been changed by the Sindh Rented Premises (Amendment) Ordinance, 2001 and the words "High Court" have been substituted by the words "District Judge" having jurisdiction in the area where the premises in relation to which the order is passed is situated‑‑District Judge vide S.21 (1‑E)(a) of the Sindh Rented Premises Ordinance, 1979 being Appellate Authority is competent to withdraw any application pending with Rent Controller and transfer the same for disposal to any other Rent Controller either on application or on its own motion, after issuance of notice to the other party or without such notice.
S. Jamil Ahmed, Advocate Supreme Court instructed by Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioners.
Mumtaz Ahmad Sheikh, Advocate Supreme Court for Respondents Nos. l to 4.
Date of hearing: 22nd December, 2003.
2004 S C M R 456
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Iftikhar Muhammad Chaudhry and Rana Bhagwandas, JJ
D.G. KHAN CEMENT COMPANY LTD. and others‑‑‑Appellants
versus
FEDERATION OF PAKISTAN and others‑‑‑Respondents
Civil Appeals Nos. 1866 of 1996, 1262 of 1999, 1288 of 2000, 1293, 1294, 1296 and 1306 of 2001, decided on 11th November, 2003.
(On appeal from the judgments dated 30‑5‑1995, 8‑4‑1999, 18‑2‑1999, 1‑3‑2000, 12‑4‑2000 and 20‑10‑2000 of the Lahore High Court and Peshawar High Court passed in Writ Petitions Nos.2431 of 1995, 8642 of 1995 and 581 of 1995, 2752 of 2000, 12849 of 1999, 5602 of 2000 and 19213 of 2000 respectively).
(a) Interpretation of statutes‑‑‑
‑‑‑‑Harmonious construction is to be made keeping in view the different provisions of the statute after fully understanding the intention with which the same had been made and object which was intended to be achieved.
(b) Sales Tax Act (VII of 1990)‑‑‑
‑‑‑‑Ss.3 & 2(22), (28), (30)‑‑‑Scope of tax‑‑‑Intention behind the promulgation of Ss.3 & 2(22), (28), (30) of the Sales Tax Act, 1990 is clearly manifest that the sales tax should go to the Government treasury within the tax period after the same having become due and should not be retained by the manufacturer‑‑‑No hard and fast rule is available as to when and at what stage, the transaction shall be deemed to be the transaction of sale of goods‑‑‑Each case has to be decided according to the facts and circumstances of the case keeping in view, in particular, the practice, usage of a particular nature of business or trade‑‑‑Manufacturer, in the present case, used to receive amount of consideration in advance for the supply of cement to be made later‑‑Provisions of S.2(22) & (30) of the Sales Tax Act, 1990 clearly provided that the time of supply was deemed to be the date on which advance payment was received or the supply made whichever was earlier and in such a case, the amount of consideration received in advance shall be deemed to be the price on that date of the proportionate quantity of cement and the sales tax should be deposited before the 20th of the succeeding month in the Government treasury instead of the date of delivery of the goods at the subsequent stage‑‑‑Date of receipt of amount of consideration in advance, therefore, could well be construed to be the date of sale for the purpose of payment of sales tax‑‑‑Contention of the manufacturer was that in case subsequently on the date of supply of the cement, there was variation in the price of the goods or transaction was cancelled, the right and interest of the manufacturer should be protected‑‑‑Held, there was no such difficulty in adopting the construction of the relevant provisions as to date of sale of goods for the purpose of payment of sales tax.
(c) Sales Tax Act (VII of 1990)‑‑‑
‑‑‑‑S. 34‑‑‑Recovery of additional tax or imposition of penalty‑‑Validity‑‑‑Imposition of penalty or additional tax under S.34, Sales Tax Act, 1990 was mandatory and there was no discretion left with the Authorities to allow any exception‑‑‑Each and every case, however, had to be decided on its own merits as to whether the evasion or nonpayment of tax was wilful or mala fide, decision on which would depend upon the question of recovery of additional tax‑‑‑Where non‑payment of the sales tax within period was neither wilful nor it could be construed to be mala fide evasion of payment of duty, recovery of additional tax as penalty or otherwise was not justified in law.
PLD 1991 SC 963; PTCL 1995 CL 415; 2003 PTD (Trib.) 928; 2001 PTD (Trib.) 2888; 2002 PTD (Trib.) 300; GST 2002 CL 280 (Trib.) and 1999 PTD 3907 ref.
(d) Sales Tax Act (VII of 1990)‑‑‑
‑‑‑‑Ss.3 & 2(22), (28), (30)‑‑‑Scope of tax‑‑‑Payment of sales tax was due within the tax period under the Sales Tax Act, 1990 from the date of receipt of amount of consideration in advance and not from the date of delivery of goods.
Raja Muhammad Akram, Senior Advocate Supreme Court for Appellants (in Civil Appeal No. 1866 of 1996).
Respondent No. l: Ex parte (in Civil Appeal No. 1866 of 1996).
Raja Abdul Ghafoor, Advocate‑on‑Record for Respondents Nos.2 to 7 (in Civil Appeal No. 1866 of 1996).
A. Karim Malik, Advocate Supreme Court for Appellants, (in Civil Appeal No. 1262 of 1999).
Abdul Latif Yousafzai, Advocate Supreme Court and M. S. Khattak, Advocate‑on‑Record for Appellant (in Civil Appeal No. 1288 of 2000).
Tasleem Hussain, Advocate‑on‑Record (absent) for Respondent No.2 (in Civil Appeal No. 1288 of 2000). .
Raja Abdul Ghafoor, Advocate‑on‑Record for Respondent No.3 (in Civil Appeal No. 1288 of 2000).
Imtiaz Rashid Siddiqui, Advocate Supreme Court for Appellants (in Civil Appeal No. 1293 of 2001).
Sheikh Salah‑ud‑Din, Advocate‑on‑Record (absent) for Respondents (in Civil Appeal No. 1293 of 2001).
Ahmar Bilal Sufi, Advocate Supreme Court and Imtiaz Rashid Siddiqui, Advocate Supreme Court for Appellants (in Civil Appeals Nos. 1294 and 1296 of 2001).
Sheikh Salah‑ud‑Din, Advocate‑on‑Record (absent) for Respondents (in Civil Appeals Nos.1294 and 1296 of 2001).
Mian Qamar‑ud‑Din Ahmad, Advocate Supreme Court and Imtiaz Rashid Siddiqui, Advocate Supreme Court for Appellants (in Civil Appeal No. 1306 of 2001). .
Sheikh Salah‑ud‑Din, Advocate‑on‑Record for Respondent (in Civil Appeal No. 1306 of 2001).
Date of hearing: 11th November, 2003.
2004 S C M R 465
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Abdul Hameed Dogar, JJ
HOUSE BUILDING FINANCE CORPORATION and another‑‑‑Petitioners
versus
SHAHID HASSAN KHAN ‑‑‑Respondent
Civil Petition No.254‑K of 2003, decided on 23rd December, 2003.
(On appeal from the judgment dated 7‑3‑2003 of the Federal Service Tribunal at Karachi, passed in Appeal No. 1025‑K of 1999).
Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S.5(1)‑.‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Misconduct‑‑Dismissal from service‑‑‑Service Tribunal modifying the order of dismissal of civil servant into compulsory retirement in exercise of powers under S:5(1), Service Tribunals Act, 1973‑‑‑Validity‑‑‑Employee had served the Department for a period of 32 years, as such, the punishment of dismissal from service was harsh and instead order for compulsory retirement would have met the ends of justice‑‑‑Petition for leave to appeal against the judgment of the Service Tribunal was dismissed by the Supreme Court.
Water and Power Development Authority v. Sh. Zulfiqar Ali PLD 1988 SC 693; WAPDA, Lahore and 2 others v. Manzoor Ahmad Arif 1994 SCMR 1042 and M. Naseem Akhtar v. H.B.F.C., Nawabshah Appeal No.1055 (K) of 1999 distinguished.
M. M. Aqil Awan, Advocate Supreme Court and Ms. Wajahat Niaz, Advocate‑on‑Record for Petitioners.
Respondent in person.
Date of hearing: 23rd December, 2003.
2004 S C M R 468
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Iftikhar Muhammad Chaudhry and Rana Bhagwandas, JJ
ARSHAD JAMAL ‑‑‑Appellant
versus
N.‑W.F.P. FOREST DEVELOPMENT CORPORATION and others‑ ‑‑Respondents
Civil Appeal No. 177 of 1999, decided on 4th December, 2003.
(On appeal from the judgment/order dated 25‑11‑1997 passed by Peshawar High Court, Peshawar in Writ Petition No.422 of 1997).
Civil service‑‑‑
‑‑‑‑Removal from service of employee of a statutory Corporation in the absence of statutory rules notified in the official Gazette by the said Corporation‑‑‑Validity‑‑‑Such employee had a vested right of hearing before any order adverse to his interest was passed by virtue of principle of audi alteram partem which was the least requirement‑‑Authorities; in the present case, had passed an order influenced mainly by the fact, that the appointment of the employee was illegal, ab initio, void and against the rules‑‑‑Was incumbent upon Authorities that before passing order of termination/removal of employee, he should have been issued show‑cause notice and an opportunity of hearing granted and thereafter well‑considered order should have been passed‑‑‑Supreme Court declared the order of removal from service of the employee by the Corporation to be illegal and without legal authority and set aside the same.
Pakistan International Airlines Corporation v. Nasir Jamal Malik and others 2001 SCMR 934 and Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation .end others 2002 SCMR 1034 ref.
Abdul Samad Khan, Advocate Supreme Court for Appellants.
Syed Mir Muhammad, Advocate Court for Respondents Nos. l and 2.
M. Bilal, Senior Advocate Supreme Court for Respondent No.3.
Date of hearing: 4th December, 2003.
2004 S C M R 471
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan, J
MUHAMMAD ABDULLAH‑‑‑Applicant
versus
YATIM KHANA KHALQIA, SARGODHA through its Manager and others‑‑‑Respondents
Civil Miscellaneous Application No.23‑L of 2004 in Civil Petition Np.3320‑L of 2001, decided on 7th January, 2004.
Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑S.47‑‑‑Execution of decree‑‑‑Difficulties of a litigant begin when he has obtained a decree‑‑‑Process of execution in vogue in the 'system has totally shattered the confidence reposed by the general public in the judicial system: Firstly it takes years for a suit of any kind to reach its logical conclusion, thereafter, the decree‑holder has to' file execution proceedings, which more or less is contested like a suit‑‑‑Sufficient time is spent before the Executing Court and the matter is contested by the judgment‑debtor like a suit by filing number of applications just to prolong the matter which also takes years to finalize the same‑Supreme Court, having noticed the facts of the present case as also the gimmickry of the petitioner whereby in an unscrupulous manner he successfully stalled the execution and deprived the respondent for more than two decades the fruits of his decree, observed that unless and until this malady in the judicial system is remedied at the earliest, it would be too late to mend the same as the poor litigants are losing their confidence in the prevailing judicial system‑‑‑To ameliorate this situation Supreme Court suggested legislative measures to be made whereby, the decree holder is protected from the evil gimmicks of the judgment‑debtor.
The process of execution as in vogue in the system has totally shattered the confidence reposed by the general public in the judicial system. Firstly, it takes years for a suit of arty kind to reach its logical conclusion. Thereafter, the decree‑holder has to file execution proceedings, which more or less is contested like a suit. Sufficient time is spent before the Executing Court and the matter is contested by the judgment‑debtor like a suit by filing number of applications just to prolong the matter. It takes years to finalize the same.
The Privy Council made remarks about this malady prevalent in the judicial system hundred and thirty years earlier. This situation has not improved after all this long period of more than one and quarter of century. Rather it has got worsened and the parties suffer agonies of litigation without final determination respecting their cause for generations. Having noticed unfortunate facts of the present case as also the gimmickry of the petitioner whereby in an unscrupulous manner he successfully stalled the execution and deprived the respondent for more than two decades, Supreme Court observed that unless and until this malady in the judicial system is remedied at the earliest it would be too late to mend the same as the poor litigants are losing their confidence in the prevalent judicial system. To ameliorate this situation, Supreme Court suggested that some legislative measures should be made whereby the decree‑holder is protected from the evil gimmicks of the judgment debtor. Supreme Court proposed as under:‑‑
(a) That the trial Court while passing the decree should also give order/direction to the judgment‑debtor for the implementation of the same which naturally would be few days more than the period provided for appeal/ revision. The arrangements should also be made that the certified copies of the order, are provided to the respective parties without any delay.
(b) If the decree is stayed by the Appellate Court then the trial Court should close the chapter. In the similar manner the Appellate Court if upholds the decree should also give some time for its implementation and fix the case before itself and ensure its compliance unless the operation of the decree is suspended by a higher forum.
(c) That the provision of section 12(2), C.P.C. which provides for challenge to the decree on the ground of fraud, misrepresentation and lack of jurisdiction should also be construed strictly and in case such an application is filed by any of the parties, the same should be scrutinized by the Court passing the decree minutely and if the same is found to be frivolous or vexatious, it should be dismissed summarily with a heavy fine.
This sort of process if adopted would go a long way not only in lessening, the expenses and agonies of the litigants but would also curtail the pendency of judicial work.
The General Manager of the Raj Durbhunga under the Court of Wards v. Maharajah Coomar Ramaput Singh 14 MIA 605= 17 WR 459 = 10 BLRPC 294 = 2 Suth. PCJ 117 quoted.
Ch. Qadir Bakhsh, Senior Advocate Supreme Court for Applicants.
Nemo for Respondents.
Date of hearing: 7th January 2004.
2004 S C M R 477
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, Javed Iqbal and Falak Sher, JJ
WILAYAT ALI ‑‑‑Petitioner
versus
THE STATE and another‑‑‑Respondents
Criminal Petition No. 128‑P of 2003, decided on 31st October, 2003.
(On appeal from the judgment dated 27‑5‑2003 of Peshawar High Court, Peshawar, passed in Cr. A. No.433 of 2002).
(a) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S.302(b)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Ocular account, of occurrence was coherent, consistent and creditworthy which was fully supported by medical evidence, voluntary confession made by accused, recovery of shotgun and his abscondence ‑‑‑ Non‑attachment, of the certificate with the confessional statement had no adverse effect on the worth and admissibility of the confession being a minor curable irregularity‑‑‑Magistrate, who had recorded the confession had satisfied himself about its voluntariness and also completed the mandatory formalities as envisaged under. Ss. 164 & 364, Cr.P.C.‑‑‑Conviction could be based on retracted confession subject to availability of some corroboration which was not a rule of law but considered inevitable by way of abundant caution and such corroboration was available in the form of recovery, abscondence, forthright eye account and medical evidence‑‑‑Conclusion arrived at by the Courts below being well‑based and unexceptionable did not warrant interference ‑‑‑Leave to appeal was declined to accused accordingly.
Muhammad Yaqoob v. The State 1992 SCMR 1983, Mokha v. Zulfiqar PLD 1978 SC 10; Zakir Khan v. The State 1995 SCMR 1793; Roshan v. The State PLD 1977 SC 557; Umar Din v. Crown ILR 1921 Lah. 129; State v. Waqar Ahmed 1992 SCMR 950; Nadir Hussain v. The Crown 1969 SCMR 442; Habib Ullah v. The State 1971 SCMR 341 and State v. Minhun PLD 1964 SC 813 ref.
(b) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Principles‑‑‑Any contradiction, improvements or other factors made by .a witness reflecting adversely on his credibility would not, by itself, be sufficient to reject his testimony as a whole‑‑‑Court can rely upon a portion of the testimony of such witness if it is corroborated by other reliable evidence or circumstance.
Muhammad Yaqoob v. The State 1992 SCMR 1983, Mokha v. Zulfiqar PLD 1978 SC 10; Zakir Khan v. The State 1995 SCMR 1793 and Roshan v. The State PLD 1977 SC 557 ref.
(c) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S:302(b)‑‑‑Criminal Procedure Code (V of‑ 1898), S.164‑‑Appreciation of evidence‑‑‑Judicial confession‑‑‑Principles‑‑‑Confession of accused recorded under S. 164, Cr.P.C. whether retracted or not, must be supported by some connecting evidence as a rule of caution.
State v. Waqar Ahmed 1992 SCMR 950; Nadir Hussain v. The Crown 1969 SCMR 442; Habib Ullah v. The State 1971 SCMR 341 and State v. Minhun PLD 1964 SC 813 ref.
Roohul Amin Khan, Advocate Supreme Court and M. Ismail Fehmi, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing: 31st October, 2003.
2004 S C M R 482
[Shariat Appellate Jurisdiction]
Present: Justice Nazim Hussain Siddiqui, Chairman, Justices Javed Iqbal, Tanvir Ahmed Khan, Dr. Allama Khalid Mehmood and Dr. Rashid Ahmed Jullundhari, Members
SHAH MUHAMMAD ‑‑‑Appellant
versus
THE STATE ‑‑‑Respondent
Criminal Appeal No. 64(S) of 2001, decided on 12th December, 2003.
(On appeal from the judgment dated 1‑2‑2001 of the Federal Shariat Court Bench at Lahore, passed in Cr. A. No.236‑L of 2000).
(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑
‑‑‑‑S.10(3)‑‑‑Constitution of Pakistan (1973), Art.203‑F(2‑B)‑‑‑Since the accused had claimed that the original name of the victim was a different one, the thumb‑impression of the victim should have been verified by an expert and in the absence of such a verification, the accused was entitled to the benefit of doubt‑‑‑Leave to appeal was granted to examine said aspect of the case.
(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑
‑‑‑‑S.10(3)‑‑‑Appraisal of evidence‑‑‑Complainant had fully supported the contents as enumerated in the F.I.R. narrating the details of the incident and categorically stating that the abductee was never known by a different name‑‑‑Other prosecution witness had supported the version of the complainant on all material particulars‑‑‑None of the said witnesses had any rancour or enmity against the accused, hence the question of his false involvement did not arise ‑‑‑Abductee had also highlighted the details of the incident and stated in an unequivocal and an unambiguous manner that she was married with another person ‑‑‑Eyewitness account was fully supported by medical evidence and according to medical opinion the abductee had been subjected to sexual intercourse‑‑‑Accused had been taking the abductee to various places and was ultimately apprehended by police and she was recovered from him‑‑Plea of accused that the abductee had married him, could not be substantiated by any cogent and concrete evidence‑‑‑Introduction of another name of the abductee had been made to take undue advantage by confessing the position‑‑No jurisdictional defect, serious infirmity or, grave illegality could be pointed out in the impugned judgment‑‑‑Appeal was dismissed in circumstances.
AIR 1950 Mad. 13; AIR 1953 Mad. 333; AIR 1947 Mad. 368 and Ansar Hussain v. The State PLD 1963 (W.P.) Kar. 130 ref.
(c) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑
‑‑‑‑S.16‑‑‑Enticing, or taking away or detaining with criminal intent a woman‑‑‑Intent and import‑‑‑All that is necessary is that if any person "takes away" any woman with the intention that she may have illicit intercourse with him, then the offence is completed‑‑‑Taking away implies that there must be some influence operating on the woman, or cooperating with her inclination at the time the final step was taken which caused a severance of the woman from her husband, for the purpose of causing such step to be taken.
AIR 1950 'Mad. 13; AIR 1953 Mad. 333 and AIR 1947 Mad. 368 ref.
(d) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑
‑‑‑‑S. 16‑‑‑Taking away a woman with criminal intent ‑‑‑`Take'‑‑Connotation‑‑‑Word "take" as used in S.16 of the Ordinance would mean to cause to go, to escort or to get into possession and accordingly the "taking" does not mean physical taking from under the roof of the guardian, but it also includes constructive taking away such as meeting at the appointed place outside and this would constitute constructive taking away from the constructive possession of the guardian.
(e) Words and phrases‑‑‑
‑‑‑‑'`Take"‑‑‑Connotation.
Ansar Hussain v. The State PLD 1963 (W.P.) Kar. 130 ref.
Arshad Ali Chaudhry, Advocate Supreme Court for Appellant.
Dil Muhammad Tarar, Advocate Supreme Court for the State.
Dates of hearing: 12th December, 2003.
2004 S C M R 489
[Supreme Court of Pakistan]
Present: Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ
Mst. ARJMAND ARA BEGUM and others‑‑‑ Petitioners
versus
AYAZ UMER and others‑‑‑Respondents
Civil Petition No. 102 of 2003, decided on 24th November, 2003.
(On appeal from the judgment dated 29‑10‑2002 of the Peshawar High Court, Abbottabad Bench, passed in C.R. No.66 of 1996).
Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑Ss.39 & 42‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.79‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Execution of document ‑‑‑Proof‑‑Concurrent findings of fact by the Courts below‑‑‑Partition of joint property was sought by plaintiffs and one of the plaintiffs also denied execution of registered sale‑deed in favour of defendants to the extent of her share‑‑‑To prove the sale‑deed, the defendants did not produce attesting witnesses of the same‑‑,Trial Court ordered the partition of suit property excluding the share of the plaintiff who had allegedly executed the sale‑deed‑‑‑Appellate Court modified the decree passed by the Trial Court arid the plaintiff whose share was excluded was also decreed‑‑Judgment and decree passed by the Appellate Court was maintained by the High Court in exercise of its revisional jurisdiction ‑‑‑Validity‑‑Concurrent findings of fact recorded by the Appellate Court as well as the High Court on the factum that some of the plaintiffs were minors at the time of alleged sale‑deed, was not open to any exception‑‑‑Appellate Court had rightly modified the judgment and decree of the Trial Court‑‑‑One of the plaintiffs having specifically denied the execution of sale‑deed, to prove its authenticity, it was incumbent upon the defendants to produce evidence of its attesting witnesses, which was the requirement of the provisions of Art.79 of Qanun‑e‑Shahadat, 1984‑‑Defendants failed to point out any legal or factual infirmity of misreading or non‑reading of the evidence to justify interference by High Court in exercise of revisional jurisdiction‑‑‑Leave to appeal was refused.
Muhammad Munir Peracha, Advocate Supreme Court for Petitioners.
Nemo for Respondents.
Date of hearing: 24th November, 2003
2004 S C M R 492
[Supreme Court of Pakistan]
Present: Javed Iqbal and Khalil‑ur‑Rehman Ramday, JJ
AMIR SHAHBAZ, DIRECTOR, WORKS AND SERVICE DEPARTMENT, GOVERNMENT OF N.‑W.F.P., DISTRICT SHANGLA, SWAT‑‑‑Petitioner
versus
GOVERNMENT OF N.‑W.F.P. through Chief Secretary and others‑‑‑Respondents
Civil Petition No.311‑P of 2001, decided on 21st October, 2003.
(On appeal from the judgment dated 12‑6‑2001 of N.‑W.F.P. Service Tribunal, Peshawar, passed in Service Appeal No.2198 of 1999).
North‑West Frontier Province (Efficiency and Discipline) Rules, 1973‑‑‑ .
‑‑‑‑R.7‑A‑‑‑North‑West Frontier Province Service Tribunals Act (I of 1974), S.4‑‑‑Constitution of Pakistan (1973), Arts. 13 & 212(3)‑‑Annual increments, stoppage of‑‑‑Successive departmental inquiries‑‑Principle of double jeopardy‑‑‑Applicability‑‑‑Concurrent findings of fact by Departmental Authority and Service Tribunal‑‑‑Civil servant remained associated with construction of 'bridge as Sub‑Divisional Officer‑‑‑Certain technical. defects were noticed in the construction of bridge and departmental inquiry was initiated‑‑‑‑Civil servant was though found innocent and was exonerated by the Inquiry Officer, yet the Authorized Officer imposed penalty of stoppage of one increment on him‑‑‑Matter was reopened, one year later, and second inquiry was initiated by the Authorities but the second charge‑sheet was dropped for certain reasons‑‑‑Once again during third inquiry a new charge‑sheet alongwith statement of allegations was issued to the civil servant wherein the same charges were reproduced‑‑‑Authorities, as a result 'of third inquiry, imposed stoppage of three increments on the civil servant.. Penalty imposed by the Authorities was maintained by the Service Tribunal‑‑‑Plea raised by the civil servant was that imposing of penalty for the second time amounted to double jeopardy‑‑‑Validity‑‑‑Civil servant, as a result of comprehensive inquiry, was held responsible for not following the skew and alignment correctly which could have not only played a havoc with the users of the bridge but also spoke a volume about the technical know‑how, efficiency and professional skill of the civil servant‑‑‑Successive inquiries could have been held to unveil the reality‑‑‑Authorities had awarded minor punishment of stoppage of three increments which did not commensurate with the gravity of the charges ‑‑‑Penalty could have been increased by the Competent Authority while exercising powers as conferred upon it under R.7‑A of North‑West Frontier Province (Efficiency and Discipline) Rules, 1973, which had been enacted to meet such sort of eventualities and the same could not be equated with the double jeopardy‑‑‑Civil servant was never exonerated in any inquiry and no injustice had been done to him‑‑Supreme Court declined to declare the entire disciplinary proceedings null and void due to some procedural lapses as Supreme Court ordinarily refuses to interfere with the concurrent findings of fact given by Departmental Authority and Service Tribunal‑‑‑Leave to appeal was refused.
Muhammad Saleem v. Superintendent of Police, Sialkot and others PLD' 1992 SC 369; Muhammad Yousaf v. Government of Pakistan 1992 SCMR 1748; Irtiqa Rasool Hashmi v. WAPDA 1980 SCMR 722; Muhammad Azhar Khan v. Service Tribunal, Islamabad 1976 SCMR 262; Muhammad Binyamin v. Water and Power Development Authority 1991 SCMR 383; Faiz Ahmad v. Deputy Postmaster General, Lahore 1991 SCMR 368; Muhammad Munir Ahmad v. WAPDA 1990 SCMR 907 and Munir Ahmad v. Punjab Service Tribunal 1990 SCMR 1005 ref.
Abdul Hakeem Khan Kundi, Advocate Supreme Court for Petitioner.
Nemo for Respondents.
Date of hearing: 21st October, 2003.
2004 S C M R 497
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Syed Deedar Hussain Shah, JJ
MUHAMMAD ZAKIR KHAN‑‑‑Petitioner
versus
GOVERNMENT OF SINDH and others‑‑‑Respondents
Civil Petition for Leave to Appeal No.471‑K of 2002, decided on 10th December, 2003.
(On appeal from the judgment of Sindh Service Tribunal, Karachi dated 28‑2‑2002 passed in Appeal No.358 of 1998).
(a) Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974‑‑‑
‑‑‑‑Rr.6‑A & 7(1)‑‑‑Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, R.12(a)(b)‑‑‑Sindh Civil Servants Act (XV of 1973), Ss. 8 & 24‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑Seniority‑‑‑Protection of service of petitioner rendered in a Statutory Body coordinating with the Local Government Department of the Province in the matter of seniority‑‑‑Petitioner; employee of a statutory body, had opted for permanent absorption in the Government Department provided his service rendered in the statutory body was counted towards seniority etc. in terms of R.12(a), Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975‑‑‑Petitioner was appointed by transfer in the Government Department accordingly until further orders by a notification‑‑‑Validity‑‑‑Case of the petitioner, was covered by R.12(b), Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 which stipulated that after appointment by transfer on the request of appointee, he shall rank junior to all other persons appointed before him on regular basis‑‑‑Case of the petitioner, having not been duly considered by the appropriate Departmental Promotion Committee, at the time of his appointment by transfer, benefit of R.12(a), Sindh Civil Servants (Probation, , Confirmation and Seniority) Rules, 1975 could not be extended to him‑‑‑For the purpose of assigning ante‑dated seniority to the petitioner and for his absorption a summary should have been submitted to the Chief Minister, who might be competent to relax the Rules in larger public interest‑‑‑Case of the petitioner, however would not fall within the domain of a "hardship case"‑‑‑Seniority being not a vested right of a civil servant at Sr. No. l did not confer any vested right on him to invoke the doctrine of locus poenitentiae as power of rescission or recall of the earlier order was always available to the Authority passing an order‑‑‑Principles.
In the present case the petitioner was not serving as civil servant in any Government Department or organization authorizing his appointment by transfer without any due process. He was serving in a statutory body coordinating with the Local Government Department and, thus, could not be said to be a civil servant. Rule 6‑A of the Sindh Civil Servants (Appointment; Promotion and Transfer) Rules, 1974 categorically postulated that for the purposes of selection for appointment by promotion or transfer to posts in grade 18 bearing special pay and allowance and such other posts as may be notified by Government, the Chief Minister may constitute one or more than one Provincial Selection Board. Furthermore, Rule 7(1) stipulated that appointment by promotion or transfer to posts in grades 1 and 2 shall be made by the Appointing Authority on merit whereas appointment by promotion and transfer to posts in grades 3 to 18 without special pay other than the posts in which Provincial Selection Board has been constituted under Rule 6‑A, shall be made on the recommendation of the appropriate Departmental Promotion Committee. While the petitioner specifically pleaded that his appointment in Karachi Development Authority was made on the recommendation of appropriate Selection Board, it was neither pleaded nor urged at the bar that this process was adopted while inducting him in Education Department, as required by the above said Rules. Again mandatory requirement of Rule 8 is to the effect that persons who possessed "such" qualifications and fulfilled the conditions laid down for the purpose of promotion or transfer to a post shall be considered by the Departmental Promotion Committee or Provincial Selection Board, as the case may be. Case of the petitioner was not duly considered by the appropriate Departmental Promotion Committee at the time of his appointment by transfer. Benefit of Rule 12(a) of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 could not be extended to him.
In present case the petitioner had opted to accept the regular appointment on permanent footing in Education Department, the department was not bound to accept the condition as regards the counting of past services rendered in Karachi Development Authority by the petitioner. Services of the petitioner were not essentially required by the Education Department for absorption by way of transfer from Karachi Development Authority, as no exceptional grounds had been shown to exist on the face of record. Even otherwise, assuming that the department required his services in the exigencies of public interest, it was within the competence of the Chief Minister to approve of his induction and to extend the benefit of the provisions contained in Rule 12(a) of the Sindh Civil Servants (Probation, Confirmation 'And Seniority) Rules, 1975, after exercising his plenary powers by relaxing the Rules. The Education Minister was not legally competent to exercise such powers on behalf of the Chief Minister to whom even the case was not referred for ex post facto approval or for exercise of discretion in terms of section 24 of the Sindh Civil Servants Act, 1973 as a hardship case.
For the purpose of assigning ante‑dated seniority to the petitioner and for his absorption a summary should have been submitted to the Chief Minister, who might be competent to relax the Rules in larger public interest. The case of the petitioner would not fall within the domain of a "hardship case".
Apart from section 21 of the General Clauses Act, 1897, power of rescission or recall of the earlier order is always available to the authority passing an earlier order.
Seniority is not a vested right of the civil servants under the Sindh Civil Servants Act, 1973, thus, placement of the petitioner in the provisional seniority list at Serial No. l did not confer any vested right on him to invoke the doctrine of locus poenitentiae.
Engineer‑in‑Chief Branch v. Jalaluddin PLD 1992 SC 207; Pakistan v. Muhammad Himayatullah PLD 1969 SC 407; Abdul Haque Indhar v. Province of Sindh 2000 SCMR 907; Pakistan International Airlines v. Nasir Jamal Malik 2001 SCMR 934; Director‑General v. Muhammad Abdul Latif 2003 SCMR 4 LO and Pakistan International Airlines Corporation v. Inayat Rasool 2003 SCMR 1128 ref.
(b) General Clauses Act (X of 1897)‑‑‑
‑‑‑‑S.21‑‑‑Locus poenitentiae, principle of‑‑‑Power of rescission or recall of the earlier order is always available to the Authority passing that order.
(c) Sindh Civil Servants Act (XV of 1973)‑‑‑
‑‑‑‑S.8‑‑‑General Clauses Act (X of 1897), S.21‑‑‑Seniority‑‑‑Seniority not a vested right of civil servant under Sindh Civil Servants Act, placement of a civil servant in the provisional seniority list at Sr. would not confer any vested right on him to invoke the doctrine of locus poenitentiae.
Pakistan v. Muhammad Himayatullah PLD 1969 SC 407; Engineer‑in‑Chief Branch v. Jalaluddin PLD 1992 SC 207; Abdul Haque Indhar v. Province of Sindh 2000 SCMR 907; Pakistan International Airlines v. Nasir Jamal Malik 2001 SCMR 934; Director-General v. Muhammad Abdul Latif 2003 SCMR 410 and Pakistan Airlines Corporation v. Inayat Rasool 2003 SCMR (d) Sindh Civil Servants Act (XV of 1973)‑‑‑ .
‑‑‑‑S.23‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Appeal to Service Tribunal‑‑‑Limitation‑‑‑Petitioner was required to file appeal within thirty days whereas he had wasted time unnecessarily in making second appeal/ representation to the Department for referring his case to the Services and General Administration Department for consultation with the Provincial Law Department/Advocate‑General, which was turned down‑‑‑Effect‑‑‑No scope for repeated appeals/representations was available to the civil servant and the period of limitation could not be extended by repeated representations‑‑‑Appeal of civil servant was rightly held time‑barred by the Service Tribunal.
(e) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 212(3)‑‑‑Appeal to Service Tribunal‑‑‑Service Tribunal having elaborately dealt with the pros and cons of the case of the petitioner in juxtaposition to the case of opponent civil servant, complete justice had been done and there was no ground for interference by the Supreme Court in exercise of the jurisdiction under Art.212(3) of the Constitution‑‑‑Petition for leave to appeal was dismissed.
Manzoor Ali Khan, Advocate Supreme Court for Petitioner.
Nemo for Respondents Nos. l to 5 and 7 to 18.
Naraindas C. Motiani, Advocate Supreme Court/Advocate‑on-Record for Respondent No.6.
Date of hearing: 24th October, 2003.
2004 S C M R 506
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Karamat Nazir Bhandari, JJ
Raja AMIR MUHAMMAD ‑‑‑Petitioner
versus
THE STATE‑‑‑Respondent
Criminal Petition No.25‑K of 2002, decided on 14th October, 2003.
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss. 409/261/262/263/34‑‑‑Sindh Enquiries and Anti‑Corruption Rules, 1993, R.11‑‑‑Pakistan Criminal Law Amendment Act (XL of 1958), SA(1)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Trial Court while rejecting the application of the accused under S. 249‑A, Cr.P.C. had taken a view that under S.4(1) of the Pakistan Criminal Law Amendment Act, 1958, Special Judge had the jurisdiction to take cognizance of any offence committed within his territorial limits and triable under the said Act upon receiving a complaint of facts constituting such offence, or upon a report of such facts made by any police officer, and since the Trial Court had already taken cognizance of the alleged offence on the challan submitted against the accused by the D.S.P. which was virtually a report of facts constituting the offence committed by the accused, ‑therefore, contravention of R.11 of Sindh Enquiries and Anti‑Corruption Rules, 1993, in view of the provisions of S.4(1) of the Pakistan Criminal Law Amendment Act, 1958 would not affect or vitiate the trial‑‑‑High Court, thus, had rightly maintained the order of the Trial. Court by means of the well‑reasoned impugned judgment passed within the parameters of the law‑‑‑Leave to appeal was refused to accused accordingly.
Abdul Latif v. G.M. Paracha and others 1981 SCMR 1101 ref..
Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioner.
Date of hearing: 14th October, 2003.
2004 S C M R 508.
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Faqir Muhammad Khokhar and Falak Sher, JJ
KAUSAR NASREEN and others‑‑‑Petitioners
versus
MEMBER (COLONIES), BOARD OF REVENUE, PUNJAB and others‑‑‑Respondents
Civil Petitions Nos. 1497‑L and 1498‑L of 2001, decided on 6th June, 2003.
(On appeal from the judgment dated 28‑2‑2001 of the Lahore High Court, passed in Writ Petition No.6181 of 1995 and 23‑16 of 1994).
Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑
‑‑‑‑Ss.10 & 24‑‑‑Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑Constitutional petition before High. Court ‑‑‑Laches‑Resumption of tenancy for breach of conditions‑‑‑Board of Revenue passed such order on 17‑1‑1984, against which Constitutional petition was filed in year 19!'4‑‑‑High Court dismissed Constitutional petition on ground of laches‑‑‑Validity‑‑‑Finding of fact of Board of Revenue that petitioner was in breach of condition of agreement, had attained finality‑‑‑Such findings of High Court did not suffer from any 'legal infirmity‑‑Supreme Court dismissed petition and refused leave to appeal.
Khizar Abbas, Advocate Supreme Court and Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing: 6th June, 2003.
2004 S C M R 511
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Faqir Muhammad Khokhar and Falak Sher, JJ
ZULFIQAR and others‑ ‑‑Petitioners
versus
Mehr GHULAM SHABBIR KHAN‑‑‑Respondent
Petition No. 2695‑L of 2000, decided on 5th June, 2003.
(On appeal from the judgment dated 20‑10‑2000 of the Lahore High Court passed in R.S.A. No.945 of 1989).
Punjab Pre‑emption Act (I of 1913)‑‑‑
‑‑‑‑S.15‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Pre‑emption suit‑‑‑Ground of being collateral and co‑owner in Khata‑‑‑Vendees claimed to be tenants qua land sold‑‑‑Trial Court dismissed suit, but Appellate Court decreed same, which was upheld by High Court‑‑‑Validity‑‑‑Khasra Girdawari produced by vendees showed land under self‑cultivation of vendor‑‑‑One of the, vendees while appearing as witness had admitted that he had brought under cultivation only one Killa after purchasing land‑‑‑ Possession of none of the vendees as tenant on date of sale had been proved‑‑‑Findings of facts recorded by High Court not suffering from misreading or non‑reading of any material piece of evidence, Supreme Court dismissed petition and refused leave to appeal.
Malik Noor Muhammad Awan, Advocate Supreme Court for Petitioners.
Khizar Abbas Khan; Advocate Supreme Court and Mehdi Khan Mehtab, Advocate‑on‑Record for Respondent.
Date of hearing: 5th June, 2003.
2004 S C M R 513
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Faqir Muhammad Khokhar and Falak Sher, JJ
ZULFIQAR ALI ‑‑‑Petitioner
versus
GHULAM RASOOL and others‑‑‑Respondents
Civil Petition No. 1267‑L of 2002, decided on 5th June, 2003.
(On appeal from the judgment of the Lahore High Court, Lahore dated 16‑1‑2002 passed in Civil Revision No. 1415 of 1995).
Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S.42‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Suit for declaration‑‑‑Will to alleged by plaintiffs (heirs of deceased) to be forged‑‑‑Trial Court decided such issue in favour of defendant, but Appellate Court and High Court decided same in favour of plaintiffs‑‑‑Contention of defendant was that execution or genuineness of will was not challenged before Revenue Officer, where a son of deceased on the contrary had stated that their father had deprived them of inheritance rights by executing such will; that parties before Trial Court had agreed that copy of will produced by plaintiffs would be read as part of evidence; that one marginal witness as D.W. had stated that such will had been executed by deceased; and that findings of Appellate Court and High Court were based on misreading and non‑reading of record‑‑‑Supreme Court granted leave to appeal, inter alia, to consider such contention and reappraise evidence.
Muhammad Afzal Sindhu, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing: 5th June, 2003.
2004 S C M R 515
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Khalil‑ur‑Rehman Ramday, JJ
DOST MUHAMMAD and others‑‑‑Petitioners
versus
GHAUS MUHAMMAD through Legal Heirs and others‑‑‑Respondents
Civil Petition No. 1503‑L of 2000, decided on 27th May, 2003.
(On appeal from the judgment dated 16‑5‑2000 of the Lahore High Court passed in Civil Revision No. 1918 of 1983).
(a) Arbitration Act (X of 1940)‑‑‑
‑‑‑‑Ss.17 & 21‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Award made rule of Court‑‑‑Father (defendant) transferred suit‑land by way of family settlement to all his heirs from both wives‑‑‑Some children (plaintiffs) later on claiming suit‑land to have been gifted to them by father (defendant) filed against him suit, wherein they obtained award, which was made rule of Court with, consent of father‑‑‑Courts below in a subsequent suit filed by other heirs refused to give effect to such award‑‑‑Validity‑‑‑Other heirs were neither made party in previous suit, wherein arbitration had taken place nor they had been even heard before making award rule of Court‑‑‑If father, as had been found by Courts below, had already transferred suit‑land by way of family settlement to his heirs from both wives, then he had ceased to be owner thereof‑‑Proceedings in previous suit appeared to be not bona fide, but collusive‑‑‑Alleged gift if any, made by father, had been proved, would no effect upon previous disposal on basis of which, parties had become owners of suit‑land‑‑‑Supreme Court dismissed petition and refused leave to appeal.
(b) Transfer of Property Act (IV of 1882)‑‑‑‑
‑‑Ss.1 & 54‑‑‑Registration Act (XVI of 1908), Ss.17 & 49‑‑Agricultural land situated in areas in Punjab not falling within municipal limits‑‑‑Oral sale or disposal of such land by way of family settlement without registered deed‑‑‑Validity‑‑‑Provision of S.54 of Transfer of Property Act, 1882 not made applicable to such areas in Punjab‑‑‑Disposal of such land in such manner would not be open to any legal objection.
Raja Mehmood Akhtar,' Advocate Supreme Court and Mehmudul Islam for Petitioners.
Date of hearing: 27th May, 2003.
2004 S C M R 517
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Iftikhar Muhammad Chaudhry
and Rana Bhagwandas, JJ
KALA KHAN and others‑‑‑Appellants
versus
RAB NAWAZ and others‑‑‑Respondents
Civil Appeal No. 741 of 1998, decided on 5th November, 2003.
(On appeal from the judgment dated 4‑7‑1997 passed by the Lahore High Court, Lahore in Civil Revision No. 1799‑D of 1982).
Specific Relief Act ( I of 1877)‑‑‑
‑‑‑‑S.42‑‑‑West Pakistan Land Revenue Act (XVII of 1967), S.45‑‑Qanun‑e‑Shahadat (10 of 1984), Art.114‑‑‑Mutation of inheritance, assailing of‑‑‑Limitation‑‑‑Doctrine of estoppel‑‑‑Applicability‑‑‑Disputed mutation was attested in favour of defendant who was issueless widow‑‑Plaintiffs were successors‑in‑interest of the brothers of the deceased husband of the widow‑‑‑Mutation in question was attested in the year 1964 while the same was assailed before Civil Court in the year 1978‑‑Plaintiffs claimed that the husband of the widow was Shia by faith and the widow being issueless was not entitled to inherit the suit‑land‑‑‑Trial Court decreed the suit but Appellate Court allowed the appeal and the suit was dismissed being time‑barred‑‑‑Judgment and decree passed by the Appellate Court were set aside by High Court in exercise of revisional jurisdiction and the suit was decreed‑‑Validity‑‑‑Question of limitation should have been viewed by the High Court keeping in view the fact that the brothers of the deceased husband of the widow had not raised any objection about the share of the widow in the land; therefor2, the mutation which remained unchallenged for a long period should have not been interfered with, even if the widow was not entitled according to Shia law, to inherit being issueless ‑‑‑Supreme Court presumed that the brothers of the husband of the widow on their own had conceded the widow 1/4th share out of respect being widow of their brother who continued to be in uninterrupted possession thereof‑‑‑Plaintiffs were estopped by conduct to file the suit, as successors‑in‑interest of the, brothers of the husband of the widow because their deceased predecessors‑in‑interest had not challenged the title of the widow‑‑Findings of facts recorded by Trial Court and affirmed by High‑Court were based on non‑consideration of material facts established on record and law was not correctly applied to the facts‑‑‑Judgment and decree passed by High Court was set aside and that of Appellate Court was restored‑‑‑Appeal was dismissed.
Khawaja Muhammad Farooq, Advocate Supreme Court and M.A. Zaidi, Advocate‑ on‑Record for Appellants.
Hafiz S.A. Rehman, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Respondents.
Date of hearing: 5th November, 2003.
2004 S C M R 521
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Javed Iqbal, JJ
FAUZIA SIDDIQUE QURESHI‑‑‑Petitioner
versus
SECRETARY, MINISTRY OF EDUCATION, ISLAMABAD and others‑‑‑Respondents
Civil Petitions Nos. 2197 of 2001 and 614 of 2003, decided on 7th October, 2003.
(On appeal from the judgment dated 30‑4‑2001 of the Federal Service Tribunal, Islamabad passed in Appeal No.760(R)CS of 2000 dated 14‑5‑2002 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in I.C.A. No.47 of 2002).
(a) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S.4‑‑‑Successive representations before Departmental Authorities‑‑Effect‑‑‑Such representations could not have been made and the Competent Authority was not bound to dispose of all such representations.
(b) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Termination of service‑‑‑Absence from service‑‑‑Concurrent findings of fact by Departmental Authority and Service Tribunal‑‑‑Service of the civil servant was terminated on the ground of her absence from duty‑‑Departmental representation as well as appeal before Service Tribunal were dismissed‑‑‑Validity‑‑‑Determination regarding factum of wilful absence made by the Department had been affirmed by the Service Tribunal and the same could not be reversed without sufficient lawful justification‑‑‑Supreme Court does not ordinarily interfere with concurrent findings of fact given by Departmental Authority and Service Tribunal‑‑‑Civil servant failed to point out any such lawful justification for interference by Supreme Court‑‑‑No question of law of public importance having been involved in the matter, leave to appeal was refused.
Muhammad Munir Ahmad v. WAPDA 1990 SCMR 907; Munir Ahmad v. Punjab Service Tribunal 1990 SCMR 1005; Faiz Ahmad v. Deputy Postmaster General, Lahore 1991 SCMR 368 and Muhammad Binyamin v. WAPDA 1991 SCMR 383 ref.
(c) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art.212(2)‑‑‑Service Tribunals Act (LXX of 1973), S.6‑‑‑Matters relating to terms and conditions of service‑‑‑Jurisdiction of High Court under Art.199 of the Constitution‑‑‑Scope‑‑‑Upon establishment of Service Tribunal, no other Court had jurisdiction in service matters covered by Service Tribunal‑‑‑Jurisdiction of High Court was also ousted with regard to all such matters which fell within the jurisdictional domain of Service Tribunal.
Pakistan International Airlines v. F.M. Shamsi PLD 1990 SC 943 and The Chairman, PIAC v. Nasim Malik PLD 1990 SC 951 ref.
M. Siddique Qureshi (father, with permission) for Petitioner.
Nemo for Respondents.
Date of hearing: 7th October, 2003.
2004 S C M R 523
[Supreme Court of Pakistan]
Present: Sheikh Riaz Ahmad, C.J., Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ
Sahibzada K.A.K. AFRIDI ‑‑‑Appellant
versus
ALLIED ENGINEERING & SERVICES LTD. through
Managing Director and 2 others‑‑‑Respondents
Civil Appeal No. 434 of 1998, decided on 20th November 2003
(On appeal from the judgment dated 3‑3‑1996 of the Peshawar High Court, Peshawar, passed in Writ Petition No. 185 of 1996).
(a) Industrial Relations Ordinance (XXIII of 1969)‑‑‑
‑‑‑‑S.25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider whether definition of 'workman' as given in S.2(i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, was applicable in the case of appellant, an Office Sales Manager and not the definition of "workman" as given in Industrial Relations Ordinance, 1969.
(b) Industrial Relations Ordinance (XXIII of 1969)‑‑‑
‑‑‑‑S.25‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i)‑‑‑ Grievance petition‑Term `workman' ‑‑‑Applicability‑‑‑ Concurrent findings of fact by the Courts below‑‑‑Services of the appellant were terminated, who was working as Office Sales Manager with the respondent‑‑‑Record had established that the appellant was appointed as Office Sales Manager for entire Province and Tribal Areas and was allowed house rent, conveyance allowance and entertainment allowance‑‑‑Appellant was also provided a car for the official use‑‑‑Even one employee used to come to the office of the appellant to help him like a subordinate as Soles Representative‑‑‑Grievance petition filed by the appellant was dismissed by Labour Court on the ground that the appellant was not a "workman" as defined under the law‑‑‑Order passed by the Labour Court was maintained by the Labour Appellate Tribunal as well as by the High Court‑‑‑Plea raised by the appellant was that he was a workman as defined under S.2(i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑‑Validity‑‑‑Designation of the appellant showed that he was more in supervisory position than even a salesman‑‑‑Main job of the appellant was to contact potential customers of respondent's products in the market and supply thereof‑‑All the Courts below had considered and appreciated the evidence properly in its true perspective and had rightly arrived at the conclusion that the appellant was not a "workman" as defined in S.2(i) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑‑Supreme Court declined to interfere with the orders passed by the Courts below‑‑‑Appeal was dismissed.
Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company Employees' Union, Dacca and 2 others PLD 1961 SC 403 rel.
Appellant in person.
Qalb‑e‑Hasan, Advocate Supreme Court and M. A. Zaidi, Advocate‑on‑Record for Respondent No. 1.
Respondents Nos.2 and 3: Ex parte.
Date of hearing: 20th November, 2003.
2004 S C M R 527
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Rana Bhagwandas, JJ
Messrs SUI NORTHERN GAS PIPELINES LTD. ‑‑‑Appellant
versus
Malik MURAWAT HUSSAIN ‑‑‑Respondent
Civil Appeal No.309 of 1999, decided on 17th December, 2003.
(On appeal from the judgment of the Federal Service Tribunal dated 12‑11‑1997 passed in Appeal No.428(L) of 1997).
Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑Ss.2‑A & 4‑‑‑Limitation Act (IX of 1908), Ss.5 & 14‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Condonation of delay‑‑‑Pursuing remedy vigilantly‑‑‑Appeal before Departmental Authorities barred by imitation‑‑‑Non‑deciding of appeal by Departmental Authorities‑‑Contention of the Authorities was that Service Tribunal had wrongly condoned delay in filing appeal before them as the departmental appeal before the Authorities filed by the civil servant was barred by time‑‑Validity‑‑‑As departmental appeal filed by the civil servant was not disposed of by any order in writing holding the same as barred by time, the question of condonation or otherwise in filing departmental appeal did not arise‑‑‑Service Tribunal did not commit any illegality in condoning the delay because the civil servant had been pursuing his remedy vigilantly from pillar to post but was not given the relief‑‑Supreme Court observed that the conduct of Authorities was not above board‑‑‑Government functionaries were the noblest litigants but in the present case the Authorities had not given fair treatment to the civil servant‑‑‑Appeal was dismissed.
N.‑W.F.P. Public Service Commission v. Samiullah Khan 1999 SCMR 2786 ref.
Salim Baig, Advocate Supreme Court for Appellant.
S. Ishtiaq Haider, Advocate Supreme Court for Respondent.
Date of hearing: 17th December, 2003.
2004 S C M R 530
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Iftikhar Muhammad Chaudhry and Rana Bhagwandas, JJ
MUSHTAQ AHMAD and others‑‑‑Appellants
versus
MUHAMMAD SAEED and others‑‑‑Respondents
Civil Appeal No. 1385 of 1995, decided on 19th November, 2003.
(On appeal from the judgment dated 7‑7‑1994 of the Lahore High Court, Bahawalpur Bench passed in C.R. No.199‑D of 1980/BWP).
(a) Constitution of Pakistan (1973)‑‑‑
‑‑‑Art.185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider whether subject‑matter of dispute was an award or agreement of sale.
(b) Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S.12‑‑‑Registration Act (XVI of 1908), S.48‑‑‑Specific. performance of agreement to sell‑‑‑Principle of‑‑‑Preference of registered document over oral agreement‑‑‑ Applicability ‑‑‑Possession of suit‑land was handed over to plaintiff in execution of oral agreement of sale‑‑Subsequently the owner of the suit‑land executed registered sale‑deed in favour of defendants on the basis of another agreement of sale in their favour‑‑‑Suit filed by the plaintiff was dismissed by the Trial Court but Appellate Court allowed the appeal and decreed the suit in favour of the plaintiff‑‑‑Judgment and decree passed by the Appellate Court were maintained by High Court in exercise of revisional jurisdiction‑‑‑Plea raised by the defendants was that the agreement of sale in favour of the plaintiff was unregistered document which could , not be termed as agreement of sale, while the agreement in their favour was a registered document, therefore, the document in favour of the plaintiff could not be enforced‑‑‑Validity‑‑‑Appellate Court and High Court, after taking into consideration the terms of the document in favour of the plaintiff and the evidence produced by the parties, recorded a finding of fact that it was an agreement of sale, therefore, the same could be enforced as such to seek specific performance thereof ‑‑‑Vendee under unregistered document or agreement was delivered possession, the principle that registered document would take preference over unregistered document would not be applicable in view of S.48 of Registration Act, 1908‑‑Defendants, in their written statement had admitted that possession of the land had been delivered to the plaintiff under the agreement of sale, therefore, no benefit could be claimed under S.48 of Registration Act, 1908, on the ground that agreement in favour of the defendants was a registered document‑‑‑Execution of sale‑deed in favour of defendants by the owner, after execution of the agreement of sale in favour of the plaintiff, could not in any manner detract from the rights of the plaintiff under law as holder of prior agreement of sale vis‑a‑vis the saledeed specific performance thereof‑‑‑Findings of fact recorded by the Appellate Court and affirmed by ‑ the High Court had not been shown to be suffering from any legal infirmity such as misreading or non‑reading of any material piece of evidence‑‑‑Appeal was dismissed.
(c) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O.VIII, R.2‑‑‑Plea not raised in written statement‑‑‑Effect‑‑‑In absence of any plea raised in the written statement, defendants could not be allowed to raise such a plea subsequently.
(d) Power of attorney‑‑‑
‑‑‑‑Appointment of agent can be made orally.
Izharul Haque, Advocate Supreme Court for Appellants.
M. Munir Paracha, Advocate Supreme Court for Respondent
Remaining Respondents: Ex parte.
Date of hearing: 19th November, 2003
2004 S C M R 535
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Iftikhar Muhammad Chaudhry and Rana Bhagwandas, JJ
MUHAMMAD SHAH ‑‑‑Appellant
versus
ADDITIONAL DISTRICT JUDGE, KOHAT and others‑‑‑Respondents
l No. 1252 of 1998, decided on 17th November, 2003.
(On appeal from the judgment dated 23‑12‑1997 of the Peshawar High Court, passed in Writ Petition No.1423 of 1997).
North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑
‑‑‑‑S.31‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Pre‑emption suit‑‑‑ Non‑issuance of notice under S.31 of North‑West Frontier Province Pre‑emption Act, 1987, by Revenue Authorities ‑‑‑Revisional jurisdiction of Appellate Court under S.115, C.P.C.‑‑‑Applicability‑‑‑Vendees sought rejection of the plaint being barred by limitation, as the same was filed 120 days after attestation of mutation by Revenue Authorities ‑‑‑Pre‑emptor contended that the suit was filed from the date of his knowledge of the mutation as no notice was given by the Revenue Authorities as required under S.31 of the North‑West Frontier Province Pre‑emption Act, 1987‑‑Application for rejection of the plaint was dismissed by the Trial Court‑‑‑Appellate Court in exercise of revisional jurisdiction rejected the suit being time‑barred and the judgment was maintained by High Court in exercise of Constitutional jurisdiction‑‑‑Validity‑‑‑Once the preemptor, in the plaint, had expressly raised the question that the official. acts were not performed as provided under S.31 of North‑West Frontier Province Pre‑emption Act, 1987, it was imperative upon the Trial Court to frame an issue, allow the parties to lead evidence and thereafter to decide the controversy‑ ‑‑Order of the Trial Court was perfectly in accordance with law, therefore, it was not a fit case for interference under S.115, G.P.C. by the Appellate Court, as no irregularity amounting to illegality had been committed by the Trial Court in exercise of jurisdiction vested in it‑‑‑Judgment passed by High Court in Constitutional petition also suffered from same legal infirmity which could not be sustained‑‑‑Judgments passed by High Court and Appellate Court were set aside and that of Trial Court was restored‑‑‑Appeal was allowed.
Mian Yunis Shah, Senior Advocate Supreme Court for Appellant.
Respondents Nos. 1 and 2: Ex parte.
S. Masood Kausar, Advocate Supreme Court for Respondent No.3.
Date of hearing: 17th November, 2003.
2004 S C M R 538
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Iftikhar Muhammad Chaudhry, JJ
WAPDA through Project Director‑‑‑Appellant
versus
AZAM KHAN and others‑‑‑Respondents
Civil Appeal No. 1391 of 2003, decided on 15th December, 2003.
(On appeal from the judgment dated 6‑2‑2001 of the Lahore High Court, Rawalpindi Bench passed in R. F. A. No. 12 of 1989).
Land Acquisition Act (I of 1894)‑‑‑
‑‑‑‑Ss.4 & 34‑‑‑Constitution of Pakistan (1973), Art.185‑‑‑Rate of compound interest‑‑‑Authorities disputed the rate of compound interest awarded under S.34 of Land Acquisition Act, 1894, which was fixed by High Court at Bank rate‑‑‑Appeal before Supreme Court was barred by 842 days‑‑‑Effect‑‑‑With, the consent of the parties, the compound interest on the awarded amount as per the terms of the judgment passed by High Court would be paid to the landowners at 8% instead of profit rate of the Bank‑‑‑Supreme Court amended the judgment of High Court accordingly.
Ch. Muhammad Tariq, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Appellant.
Muhammad Iqbal Khan, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate‑on‑Record for Respondents.
Date of hearing: 15th December, 2003.
2004 S C M R 540
[Supreme Court of Pakistan]
Present:. Sh. Riaz Ahmad, C.J., Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ
Syed MUHAMMAD IQBAL JAFRI‑‑‑Petitioner
versus
REGISTRAR, LAHORE HIGH CQURT, LAHORE ‑‑‑Respondent
Civil Petition No. 432‑L of 2003, decided on 1st December, 2003.
(On appeal from the judgment dated 31‑1‑2003 of the Punjab Subordinate Judiciary Service Tribunal, Lahore, passed in Appeal No.23 of 2000).
(a) Civil service‑‑‑
‑‑‑‑.Acquittal of civil servant in criminal trial‑ ‑‑Departmental proceedings, initiation of‑‑‑Scope‑‑‑No bar to proceed departmentally against any civil servant even after his acquittal, as departmental disciplinary proceedings are entirely different from those . of the criminal proceedings on criminal charge‑‑‑Both the proceedings are neither coextensive nor inter‑connected‑‑‑Judicial trial is not a substitute for departmental inquiry as it relates to the enforcement of criminal liability whereas the departmental proceedings are concerned with the service discipline and good order‑‑‑Scope and law applicable in both proceedings are different from each other, thus Competent Authority was vested with the discretion to initiate the departmental inquiry through an Inquiry Officer without being influenced by the decision of the acquittal.
The Deputy Inspector‑, General of Police, Lahore and others v. Anis‑ur‑Rehman Khan PLD 1985 SC 134 and Amir Abdullah v. Superintendent of Police and others 1989 SCMR 333 ref.
(b) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975‑‑‑
‑‑‑R.19(2)‑‑‑Constitution of Pakistan (1973), Arts.13 & 212(3)‑‑Dismissal from service‑‑‑Acquittal of civil servant in criminal trial‑‑Doctrine of double jeopardy‑‑‑Applicability‑‑‑Civil servant being judicial officer was arrested abroad on the allegation of drug trafficking‑‑‑Trial Court in the foreign country convicted the civil servant but on appeal he was acquitted on benefit of doubt‑‑‑Civil servant, on his return to Pakistan, was departmentally proceeded against and he was dismissed from service‑‑‑Punjab Subordinate Judiciary Service Tribunal maintained the order of dismissal and dismissed the appeal filed by the civil servant‑‑‑Plea' raised by the civil servant was that dismissal from service on the same charge after his acquittal by criminal Court amounted to double jeopardy which was against the spirit of Art. 13 of the Constitution‑‑‑Validity‑‑‑Mere acquittal of the civil servant op benefit of doubt from Court of Appeal in foreign country, the serious charge of drug trafficking and being apprehended at foreign airport by Customs Officials could not be brushed aside easily‑‑‑Supreme Court observed that such act of the civil servant had not only impaired the image of Pakistan Judiciary but had given bad name and reputation to the country and the nation‑‑‑Civil servant had also earned adverse reports in two Annual Confidential Reports whereby he was reported to be corrupt‑‑Judgment passed by the Service Tribunal was based on valid and sound reasons and was in consonance with the settled law‑‑‑No misreading and non‑reading of material evidence or misconstruction of facts and law was found‑‑‑No substantial legal question of public importance was involved warranting interference by Supreme Court‑‑‑Leave to appeal was refused.
Talib H. Rizvi, Senior Advocate Supreme Court for Petitioner.
Date of hearing: 1st December, 2003.
2004 S C M R 545
[Supreme Court of Pakistan]
Present:. Sh. Riaz Ahmad, C. J., Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ
Messrs MAKAMA STEEL CRAFTS (PVT.) LTD. through Chief Executive‑‑‑Petitioner
versus
COLLECTOR OF CUSTOMS, CUSTOMS HOUSE, PESHAWAR and another‑‑‑Respondents
No.2573 of 2003, decided on 12th November, 2003.
(On appeal from the judgment dated 25‑6‑2003 of the Peshawar High Court, Peshawar, passed in F.A.O. No.63 of 2002).
Customs Act (IV of 1969)‑‑‑
‑‑‑‑Ss.16, 18, 19 & 196‑‑‑Imports and Exports (Control) Act (XXXIX of 1950), S.3(1)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Misdeclaration by importer at the time of import‑‑‑Levy of duty only to the physically verified by Custom Authorities‑‑‑New plea, free steel sheets, CRC steel sheets and tin plates were actually imported but the same were declared as Electro galvanized sheets and accordingly, the import duty was paid‑‑‑Customs Authorities after issuing show‑cause notice to the importer, imposed penalty‑‑‑Only 10% of the goods imported having been inspected at the time of import, therefore, Appellate Tribunal reduced the penalty to the extent of 10%‑‑Order passed by the Appellate Tribunal was maintained by High Court in exercise of appellate jurisdiction‑‑‑Plea raised by the importer was that his application for amendment of memorandum of appeal was wrongly dismissed by the Appellate Court‑‑‑Validity‑‑‑Record as well as the findings of Tribunal and High Court had established that the importer had misdeclared description of the goods and claimed evasion of tax‑‑Importer, at appellate stage, sought amendment in memorandum of appeal to the extent that at the place of S.R.O. No.602, S.R.O. No 643 be substituted‑‑‑Importer, in reply to the show‑cause notice, had not claimed any concession under S.R.O. No.643, thus, the amendment was rightly declined‑‑‑Supreme Court declined to interfere with the orders passed by Appellate Tribunal and High Court‑‑‑Leave to appeal was refused.
Muhammad Khalid Mehmood Khan, Advocate Supreme Court for Petitioner.
Date of hearing: 12th November, 2003.
2004 S C M R 549
[Supreme Court of Pakistan]
Present: Rana Bhagwandas, Javed Iqbal and Karamat Nazir Bhandari, JJ
MUHAMMAD ZAHOOR ABBASI ‑‑‑Petitioner
versus
GOVERNMENT OF THE PUNJAB through Secretary Education, Civil Secretariat, Lahore and 3 others‑‑‑Respondents
Civil Petition No.430 of 2003. heard on 9th October, 2003.
(On appeal from the judgment dated 10‑2‑2003 of the Punjab, Service Tribunal, Lahore Camp, Rawalpindi passed in Service Appeal No. 1748 of 2002).
(a) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art.212(3)‑‑‑New plea, raising of‑‑‑Point of law‑‑‑Point that rule was ultra vires was not urged before Service Tribunal‑‑‑Validity‑‑‑Such point should not have been normally permitted to be raised in Supreme Court but the same being question of law was allowed to be urged by the Supreme Court.
(b) Punjab Civil Servants Act (VIII of 1974)‑‑‑
‑‑‑‑S.18‑‑‑Punjab Civil Services (Pension) Rules, 1963, R.1.8 (a)Constitution of Pakistan (1973), Art.212(3)‑‑‑Misconduct‑‑‑Penalty of withholding of pension ‑‑‑Vires of R.1.8 of Punjab Civil Services (Pension) Rules, 1963‑‑‑Authorities withheld 60% of pension of the civil servant under R.1.8 (a) of Punjab Civil Services (Pension) Rules, 1963, on the charge of misconduct‑‑‑Service Tribunal allowed appeal filed by the civil servant and reduced the penalty from 60% to 10%‑‑‑Contention of the civil servant was that pension could only be denied in cases of removal and dismissal from service on a charge of indiscipline otherwise the civil servant had to be paid full pension‑‑‑Civil servant further contended that the provision of R.1.8 of Punjab Civil Services (Pension) Rules, 1963, was ultra vires of S.18 of Punjab Civil Servants Act, 1974‑‑‑Validity‑‑‑Such interpretation of the Rule would have been acceptable if the words "as may be prescribed" were not there in R. I .8(a)(1) of Punjab Civil Services (Pension) Rules, 1963, thus the provision of law was a healthy one and was meant to ensure good conduct on the part of a civil servant during service or even after it‑‑Civil servant on completion of service was entitled to pension provided he had been found of good conduct during the service‑‑‑Dismissed or removed civil servant being guilty of misconduct had no claim to pension under R.1.8(a)(3) of Punjab Civil Services (Pension) Rules, 1963‑‑Provision of R.1.8 of Punjab Civil Services (Pension) Rules, 1963, being not ultra vires of S.18 of Punjab Civil Servants Act, 1974, Supreme Court declined to interfere with the judgment passed by Service Tribunal‑ ‑‑Leave to appeal was refused.
Malik Ehsan‑ul‑Haq v. Government of the Punjab through Chief Secretary and 3 others 1994 PLC (C.S.) 454 and Syed Munir Hussain Shah v. Secretary, Livestock Dairy and Development Department, Government of the Punjab and 2 others 1995 PLC (C.S.) 943 distinguished.
Ch. Afrasiab Khan, Advocate Supreme Court with Ch. Akhter Ali, Advocate‑on‑Record for Petitioner.
Khalid Mehmood Sindhu, Section Officer and Iqbal Ahmad Javed, Assistant Secretary, Education for Respondents.
Date of hearing: 9th October, 2003.
2004 S C M R 553
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Javed Iqbal, JJ
MUHAMMAD ASHFAQ‑‑‑Petitioner
versus
MUHAMMAD SHER KHAN and 11 others‑‑‑Respondents
Civil Petition No.408‑P of 2002, decided on 7th October, 2003.
(On appeal from the judgment dated 20‑6‑2002 of the Peshawar High Court, Peshawar, passed in Writ Petition No.923 of 2001).
North‑West Frontier Province Local Government Elections Rules, 2000‑‑‑
‑‑‑‑Rr.71 & 73(3)‑‑‑Civil Procedure Code (V of 1908), O.VI, R.15‑‑Constitution of Pakistan (1973), Art.185 (3)‑‑‑Corrupt practices, allegations of‑‑‑Presentation of election petition‑‑‑Election Tribunal dismissed the election petition on the ground that the same was not properly filed but High Court in exercise of its Constitutional jurisdiction set aside the order passed by the Election Tribunal‑‑‑Plea raised by the returned candidate was that the petition was not filed in accordance with the provisions of O.VI, R.15, C.P.C.‑‑‑Validity‑‑Election petition and annexes were got signed and verified properly in accordance with the relevant Rules read with Order VI, R.15, C.P.C. which was made applicable by virtue of R.73(3) of North‑West Frontier Province Elections Rules, 2000‑‑‑Allegation of corrupt practices asserted in an unambiguous manner in the election petition could' not be resolved without affording proper opportunity of hearing to the petitioners which aspect of the matter had been dealt with in a casual and cursory manner by the Election Tribunal and the same amounted to flagrant violation of the principles of natural justice, fair play and equity‑‑‑High Court in exercise of Constitutional jurisdiction had rightly rectified the illegality‑‑‑No jurisdictional error, illegality or infirmity was pointed out by the returned candidates in the judgment passed by the High Court‑‑No question of law of public importance was involved in the matter‑‑Leave to appeal was refused.
Syed Asif Shah, Advocate Supreme Court and Syed Safdar Hussain, Advocate‑on‑Record (absent) for Petitioner.
Mian Mohibuliah Kakakhel, Advocate Supreme Court and Mir Adam Khan, Advocate‑on‑Record (absent) for Respondents.
Date of hearing: 7th October, 2003.
2004 S C M R 557
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil‑ur‑Rehmnn Ramday, JJ
MUHANIMAD SADIQ and others‑‑‑Petitioners
versus
MUHAMMAD TUFAIL through Mst. Naziran Bibi and others‑‑‑Respondents
Civil Petition for Leave to Appeal No. l 160‑L of 2000, decided on 19th March, 2003.
(On appeal from the judgment/order dated 21‑2‑2000 and 7‑4‑2000 of the Lahore High Court, Multan Bench, Multan, passed in Civil Revision No. 523 of 1985 and Review Petition No.12‑C of 2000).
West Pakistan Land Revenue Act (XVII of 1967)‑‑‑
‑‑‑‑Ss. 135 & 141‑‑‑Application for partition‑‑‑Petitioner alleged that private partition had already been effected between parties and they were in possession of their respective areas since then‑ ‑‑Tehsildar after recording evidence of parties granted declaration as prayed for‑‑‑Such findings remained upheld by Appellate Court and in revision by High Court‑‑‑Contention of petitioner was that respondents were in possession of 4 Kanals of land in excess‑‑‑Validity‑‑‑Petitioner in his application filed in year 1980 had not made a single word against private partition effected in year 1969 and parties were in possession of their respective areas since then‑‑‑Record showing few Kanals of land in excess with respondents was certainly with agreement of parties arrived at in year 1969‑‑‑Impugned judgment not suffering from any illegality or legal infirmity, Supreme Court dismissed petition and refused leave to appeal.
Mian Saeedur Rehman Farrukh, Advocate Supreme Court with Tanvir Ahmad, Advocate‑on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing: 19th March, 2003.
2004 S C M R 559
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ
ZAFAR MUHAMMAD ‑‑‑ Petitioner
versus
Mst. ANWAR BIBI‑‑‑Respondent
Civil Petition for Leave to Appeal No. 1809‑L of 2000, decided on 14th May. 2003.
(On appeal from the judgment dated 29‑3‑2000 passed by the Lahore High Court, Multan Bench, in R.S.A. No. 123 of 1985).
Islamic Law‑‑‑
‑‑‑‑Gift‑‑‑Gift of land through mutation alleged to have been made by wife in favour of husband‑‑‑Proof‑‑‑Husband neither established delivery of possession of alleged gift nor proved factum of offer by wife transferring land by way of gift and its acceptance by him ‑‑‑Lamberdar, who had allegedly identified wife at the time of entering and attestation of mutation did not belong to same locality, where she was residing‑‑‑Held, entering and, attestation of mutation was a doubtful affair, and that no valid gift of land had been made by wife in favour of husband.
Mian Abdul Quddous, Advocate Supreme Court with Mahmood ul Islam, Advocate‑on‑Record for Petitioner.
Nemo for Respondent
Date of hearing: 14th May, ''003
2004 S C M R 561
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Faqir Muhammad Khokhar, JJ
ABDUL KARIM and others‑‑‑Petitioners
versus
LAHORE CANTONMENT COOPERATIVE HOUSING SOCIETY, LTD. and others‑‑‑Respondents
Civil Petition No. 1055‑L of 2000, decided on 13th May, 2003.
(On appeal from the order dated 2‑3‑2000 of the Lahore High Court passed in Writ Petition No. 16741 of 1999).
Land Acquisition Act (I of 1894)‑‑‑
‑‑‑‑Ss. 4 & 17(4)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑Notification declared to be invalid by Court‑‑‑Effect‑‑‑Supreme Court granted leave to appeal to consider, inter alia, the question, whether benefit of notification of land acquisition including land in dispute, which already stood declared to be void by virtue of an earlier judgment of High Court, would go to all landowners affected thereby including petitioners, who had not challenged the same; and whether observation of High Court was correct that benefit of such notification would go only to those,, who had challenged the same and not to others.
People Cooperative Housing Society Ltd., Lahore v. Collector, Lahore District and 4 others‑1979 CLC 180 ref.
Mian Saeed‑ur‑Rehman Farrukh, Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record for Petitioners.
Tariq Masood, Advocate Supreme Court and Muhammad Aslam Ch., Advocate‑on‑Record for Respondents.
Date of hearing: 13th May, 2003.
2004 S C M R 563
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Sardar Muhammad Raza Khan and Falak Sher, JJ
NAWAZO‑‑‑Petitioner
versus
THE STATE‑‑‑Respondent
Criminal Petition No. 116‑K of 2002, decided on 28th November, 2002.
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑Ss. 514 & 502‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Forfeiture of surety bond‑‑‑Once the accused had appeared or their appearance had been caused by the petitioner alongwith the application making request to discharge the surety bonds, Court might have taken them into custody with direction to them to furnish fresh surety bonds‑‑‑Provisions of subsection (3) of S.502, Cr.P.C. were not complied with, as a result whereof the accused had made their escape good because when the notice was issued to them the case was adjourned and the apprehension expressed by the petitioner in his application regarding their abscondence proved to be correct‑‑After submission of the said application it was not the responsibility of the petitioner to again produce the accused persons before the Court‑‑Decision in such‑like cases was required to be taken expeditiously, because if time was allowed to accused they were bound to take undue benefit of the same, as happened in the instant case‑‑‑Petition for leave to appeal was converted into appeal and allowed in circumstances and the impugned orders passed by High Court and Trial Court directing the petitioner to pay the full surety amount of Rupees six lacs as penalty were set aside.
Gul Bahar Korai, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate‑on‑Record for Petitioner.
Suleman Habibullah, Additional Advocate; General, Sindh for the State.
Date of hearing: 28th November, 2002.
2004 S C M R 565
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry and Syed Deedar Hussain Shah, JJ
GOVERNMENT OF SINDH through Secretary/Director‑General, Excise and Taxation and another‑‑‑Petitioners
versus
MUHAMMAD SHAM and others‑‑‑Respondents
Civil Petition No.852‑K of 2001, decided on 23rd December, 2002.
(On appeal from the judgment/order dated 24‑8‑2001 passed by High Court of Sindh, at Karachi, in Constitutional Petition D‑1807 of 1999).
West Pakistan Urban Immovable Property Tax Act (V of 1958)‑‑‑
‑‑‑‑S. 4(a)‑‑‑Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975), S.7‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑Evacuee property‑‑‑Exemption from property tax‑‑‑Supreme Court granted leave to appeal to consider as to whether under SA(a) of West Pakistan Urban Immovable Property Tax Act, 1958, property owned by Evacuee Trust Property Board, which was in possession of private respondent was exempt from tax; and whether High Court had rightly applied the principle of law discussed by Supreme Court in the case of Mehran Associates Ltd. v. Commissioner of Income Tax, Karachi 1993 SCMR 274 = 1993 PTD 69.
Mehran Associates Ltd. v. Commissioner of Income Tax, Karachi 1993 SCMR 274 = 1993 PTD 69 ref.
Suleman Habibullah, Additional Advocate‑General, Sindh, Karachi, Syed Zaki Muhammad, Deputy Attorney‑General and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioners.
Obaidur Rehman, Advocate Supreme Court and N.M. Sheikh, Advocate‑on‑Record for Respondent No. 1.
Date of hearing: 23rd December, 2002.
2004 S C M R 567
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Rana Bhagwandas, JJ
Messrs PARKS PAKISTAN (PVT.) LTD. ‑‑‑Petitioner
versus
D.G., EXCISE AND TAXATION, LAHORE‑‑‑Respondent
Civil Petition No.2557 of 2003, decided on 16th December, 2003.
(On appeal from the judgment dated 30‑9‑2003 of the Lahore High Court, Rawalpindi, Bench passed in Writ Petition No. 1149 of 2002).
(a) West Pakistan Entertainments Duty Act (X of 1958)‑----
‑‑‑‑Ss.3‑A [as added by Punjab Finance Act (VII of subsequently omitted by Punjab Finance Ordinance (III of 2000], 3 & 2(d)‑‑‑Question arose as to whether after the omission of S.3‑A of the Act by the Punjab Finance Ordinance, 2000, entertainment duty could be charged‑‑‑Contention of the Government was that duty continued to be leviable under S.3 of the original Act after the omission of S.3‑A as the same was being levied before S.3‑A was added‑‑Validity‑‑‑Intention behind addition of S.3‑A in the original Act through Punjab Finance Act, 1992 was to bring entertainments mentioned therein as a class within the purview of the West Pakistan Entertainment Duty Act, 1958 to charge entertainment duty which were not included in S.2(d) of the original Act‑‑‑After the omission of S.3‑A, the entertainment duty would not be chargeable only on those entertainment as a class which were introduced through the said amendment and the entertainment originally falling within the purview of S.2(d) of the Act would continue to be liable for payment of entertainment duty.
(b) West Pakistan Entertainments Duty Act (X of 1958)‑---
‑‑‑,‑Ss.3‑A [as added by Punjab Finance Act (VII of 1992) and subsequently omitted by Punjab Finance Ordinance (III of 2000], 3(1) & 2(d)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Contention of the petitioner was that since the High Court in the impugned judgment had held that entertainment duty was being charged from the petitioner under S.3‑A added in the original Act by Punjab Finance Act, 1992, therefore, after omission of the said added S.3‑A, subsequently no entertainment duty could legally be charged against the petitioner and the subsequent findings that the same could be charged under the original Act were inconsistent with the previous findings that it was chargeable under S.3(1).. of the said Act‑‑‑Question of interpretation of Ss.2(d) & 3(1) of the West Pakistan Entertainments Duty Act, 1958, S.3‑A added through Punjab Finance Act, ' 992 and the legal consequence of its omission by Punjab Finance Ordinance, 2000 and the notification of the Provincial Government in the year 1995 produced by the counsel to the State had arisen which was undoubtedly a question of law of public importance‑‑Supreme Court granted leave to appeal to consider the said question of law of public importance‑‑‑Recovery of the arrears were ordered to remain stayed while the recovery of entertainment amounts duty hereinafter was not stayed‑‑‑Both the parties were directed to maintain the accounts of the recoveries about which appropriate orders were to be passed by the Supreme Court at the time of final disposal of the appeal.
M. Munir Peracha, Advocate Supreme Court for Petitioner.
Miss Afshan Ghazanfar, Assistant Advocate‑General, Punjab for Respondent.
Date of hearing: 16th December, 2003
2004 S C M R 571
[Supreme Court of Pakistan]
Present: Hamid Ali Mirza and Faqir Muhammad Khokhar, JJ
PROVINCE OF PUNJAB through Secretary Education‑‑‑Petitioner
Versus
KISHWAR QUDUS PAUL‑‑‑Respondent
Civil Petition No.3692‑L of 2002, decided on 22nd October, 2003.
(On appeal from the order dated 9‑8‑2002 in F.A.O. No. 137 of 2000 passed by Lahore High Court, Lahore).
Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art.185(3)‑‑‑Petition for leave to appeal‑‑‑Delay of fourteen days in filing the petition by the Provincial Government‑‑‑Sufficient cause‑‑ Ground for condonation of delay was stated to be the processing of filing the petition by different concerned Government Departments‑‑ Validity‑‑‑Held, delay taking place in the Government Offices in the process of filing petitions, could not be said to be sufficient cause for condoning the delay‑‑‑Each day's delay in filing the petition for leave to appeal had not been satisfactorily accounted for in the present case‑‑‑Petitioner/Government was bound to have pursued the matter for the purpose of filing the petition as soon as the judgment was passed‑‑‑Petitioner/Government could not be allowed to place blame upon its subordinate offices although they were also equally responsible to expedite the process of filing the petition within time‑‑‑Delay in filing petition had created vested right in favour of the respondent which could not be lightly ignored unless strong case was made out showing sufficient cause accounting, each day's delay‑‑‑No sufficient cause having been shown for condonation of fourteen days' delay, petition for leave to appeal was dismissed as time‑barred by the Supreme Court.
Mrs. Afshan Ghazanfar, Assistant Advocate‑General for Petitioner.
Mian Israrul Haq, Advocate Supreme Court for Respondent.
Date of hearing: 22nd October, 2003.
2004 S C M R 574
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ
IRSHAD MASIH arid others‑‑‑Petitioners
versus
AMMANUAL MASIH and others ‑Respondents
Civil Petition No.4011‑L of 2002, decided on 2nd May, 2003.
(On appeal from the judgment dated 11‑11‑2001 passed by the Lahore High Court, Multan Bench, in Writ Petition No.1189 of 2001).
Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑
‑‑‑‑S. 31‑A‑‑‑Civil Procedure Code (V of 1908), S.49‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Tenancy of State land ‑‑‑Inheritance‑‑Execution of decree by successors‑in‑interest of deceased decreeholder‑‑‑Revisional Court remanded matter to Executing Court for framing of issues and disposal of matter after recording evidence of parties‑‑‑High Court set aside such order of Revisional Court‑‑‑Supreme Court granted leave to appeal to consider as to whether revisional order was just and proper to deal with inheritance of predecessor‑in‑interest of deceased decree‑holder.
Malik Noor Muhammad Awan, Advocate Supreme Court with Mahmood A. Qureshi, Advocate‑on‑Record for Petitioners.
Syed Shamim Abbas Bokhari, Advocate Supreme Court for Respondents.
Date of hearing: 2nd Mayi,2003
2004 S C M R 576
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ
Messrs POINEER CEMENT LTD.‑‑‑Petitioner
versus
SECRETARY, INDUSTRIES AND MINERAL DEVELOPMENT DEPARMTENT, LAHORE and others‑‑‑Respondent
Civil Petition No. 1726‑L of 2000, decided on 14th April, 2003.
(On appeal from the judgment dated 27‑4‑2000 passed by the Lahore High Court, Lahore, in Writ Petition No.7171 of 2000).
Punjab Mining Concession Rules, 1990‑‑‑
‑‑‑‑Preamble‑‑‑Regulation of Mines and Oilfields and Mineral Development (Government Control) Act (C of 1948), Ss.2 & 3‑‑Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑‑Lease of mining limestone‑‑‑Increase in rate of royalty by Government‑‑‑High Court dismissed Constitutional petition challenging such increase ‑‑‑Validity‑‑Section 2 of Regulation of Mines and Oilfields and Mineral Development (Government Control) Act; 1948 authorized Government to frame Rules and S.3 thereof further authorized making of Rules envisaging imposition of penalty‑‑‑Petitioner was obliged under the contract to abide by all provisions of Punjab Mining Concession Rules, 1990‑‑Petitioner was obliged to pay all taxes, rates etc., which were required to be paid to Government‑‑‑No illegality having been found in impugned judgment, Supreme Court dismissed petition for leave to appeal.
Sh. Anwar‑ul‑Haq, Advocate Supreme Court for Petitioner.
Nemo for Respondents.
Date of hearing: 14th April, 2003.
2004 S C M R 578
[Supreme Court of Pakistan]
Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ
BASIT SIBTAIN through Legal Heirs---Petitioner
Versus
MUHAMMAD SHARIF through Legal Heirs---Respondent
Civil Petition No. 1417-L of 1999, decided on 14th January, 2003.
(On appeal from the judgment dated 28-6-1999 of the Lahore High Court, Lahore, passed in R.F.A. No.86 of 1998).
(a) Pleadings---
----Material facts must be averred in plaint---Facts deposed in examination-in-chief by plaintiff's witnesses not narrated in plaint were, held, to be unbelievable.
(b) Pre-emption---
---- Lis pendens, doctrine of---Validity of pre-emption decree would not be affected due to any sale made during litigation and would be binding on purchaser- --Transfer of Property Act (IV of 1882), S.52.
Muhammad Mujtaba v. Ghulam Ali 1980 SCMR 7 rel.
(c) Transfer of Property Act (IV of 1882)---
----S. 52---Sale during pendency of suit could not frustrate ultimate decree, which would operate against purchaser pendente lite.
(d) Specific Relief Act (I of 1877)---
----Ss. 8 & 42---Civil Procedure Code (V of 1908), O.IX, Rr.8 & 9--Suit for possession after dismissal of suit for declaration for non prosecution---Maintainability---Application seeking restoration of earlier suit was also dismissed---Cause of action in earlier suit was plea of title based on sale-deed---Dismissal of earlier suit for non-prosecution would bar maintainability of subsequent suit for possession on same cause of action.
(e) Punjab Pre-emption Act (I of 1913)---
----Ss. 4 & 30---Pre-emption suit--Re-sale by vendee after expiry of one year from sale-deed, which was pre-empted ---Effect---Re-sale under law could take place during period of limitation---Any sale after expiry of limitation period of filing suit for pre-emption could not defeat preemptor.
Muhammad Mujtaba v. Ghulam Ali 1980 SCMR 7 and Mst. Fateh Bibi v. Ahmad Khan and 6 others PLD 1971 Lah. 171 rel.
Dr. A. Basit, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.
Jehangir A. Jhoja, Advocate Supreme Court for Respondents.
Date of hearing: 14th January, 2003.
2004 S C M R 584
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Tanvir Ahmed Khan and Faqir Muhammad Khokhar, JJ
MUHAMMAD YAQOOB and others---Petitioners
Versus
HAKIM ALI and others---Respondents
Civil Petition No.213-L of 2002, decided on 20th February, 2002.
(On appeal from the judgment dated 15-11-2001 of the Lahore High Court, Lahore, passed in R. A. No. 60-C of 2001 in R. S. A. No. 117 of 1988).
(a) Contract Act (IX of 1872)---
----S. 55---Agreement to sell regarding immovable property---Time fixed in agreement for execution of sale-deed---Effect---Time would not be deemed to be of the essence of contract merely because a date was fixed therein for its performance---Such aspect of the matter should be considered and decided keeping in view attending circumstances to ascertain real intention of the parties.
(b) Contract Act (IX of 1872)---
----S. 55---Agreement to sell regarding immovable property---Time fixed in agreement for execution of sale-deed---Seller at the time of execution of agreement was not vested with full ownership rights, but he had to perfect his title by depositing Government dues, which fact was within knowledge of parties---Held, time fixed in agreement. was not intended to be of the essence---Such date had been fixed tentatively with the intention that, needful might possibly be done before such date.
Ch. Muhammad Ashraf, Advocate Supreme Court with Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 20th February, 2002.
2004 S C M R 587
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
GHULAM RASOOL and others---Petitioners
Versus
MEMBER (CONSOLIDATION), BOARD OF REVENUE and others---Respondents
Civil Petition for Leave to Appeal No. 1772-L of 1999, decided on 29th April, 2003.
(On appeal from the judgment dated 24-8-1999 passed by the Lahore High Court, Lahore, in Writ Petition No.7121 of 1991).
(a) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)-----
----S. 10---Consolidation of holdings---Collector after remand passed on the case to Kanungo---Validity---Collector could not pass on the case to Kanungo, who had no authority to record compromise between the parties.
(b) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)----
----S. 13---Revision before Board of Revenue---Limitation---Question of limitation not material under S.13 of West Pakistan Consolidation of Holdings Ordinance, 1960---Board can competently call for record from subordinate agency notwithstanding time-barred nature of order of Commissioner.
(c) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)----
----S.10---Constitution of Pakistan (1973), Art.199---Consolidation of holdings---Allocation and demarcation of land have to be left with Consolidation, Officer---High Court in exercise of Art. 199 of the Constitution should not reappraise such factual controversies, but should concern itself with, legality of orders and - not its propriety.
(d) Constitution of Pakistan (1973)----
----Arts. 185(3) & 199---Constitutional petition---Discretion exercised or conclusion reached by High Court was neither arbitrary nor unsound--Supreme Court refused leave to appeal.
Raja Dilshad A. Khan, Advocate Supreme Court with C.M. Latif, Advocate-on-Record for Petitioners.
Nemo for Respondents
Date of hearing: 29th April, 2003.
2004 S C M R 590
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Falak Sher, JJ
PRESIDENT OF ISLAMIC REPUBLIC OF PAKISTAN---Petitioner
Versus
Syed TASNEEM HUSSAIN NAQVI and others---Respondents
Civil Petition No.273-L of 1998, decided on 29th April, 2003.
(On appeal from the judgment dated 31-7-1997 passed by the Lahore High Court in F.A.O. No.62 of 1997).
Arbitration Act (X of 1940)---
----S. 30---Objections to award on merits by contending that findings of Arbitrator were contrary to evidence---Validity---Award could be challenged only on grounds mentioned in S.30 of Arbitration Act, 1940 if the Arbitrator had misconducted himself in the proceedings and not on merits---No substantial grounds with precision and particular allegations were pleaded which ,could be construed to be misconduct by the arbitrator or the proceedings---Court while hearing objections against award could not sit as a Court of appeal against award and interfere with the same on merits.
Jehangir A. Joja, Advocate Supreme Court for Petitioner.
Ashtar Ausaf Ali, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Respondents.
Mahmudul Islam, Advocate-on-Record (on Show-Cause Notice).
Date of hearing: 29th April, 2003.
2004 S C M R 592
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
GUL REHMAN KHAN---Petitioner
Versus
SHIRIAN KHAN---Respondent
Civil Petition No. 1742-L of 2000, decided on 21st April, 2003.
(On appeal from the judgment of the Lahore High Court, Lahore, dated 7-3-2002 passed to Writ Petition No.20081 of 2001).
West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---
----S. 13---Constitution of Pakistan (1973), Arts. 185(3) & 199---Default in payment of rent---Denial of relationship of landlord and tenant--Petitioner claimed to have purchased disputed house through sale-deed, while respondent raised plea to have purchased same through agreement earlier than sale-deed---Ejectment order passed by Rent Controller was upheld by Appellate Court, but was set aside by High Court in Constitutional jurisdiction---Validity---Respondent while appearing as witness had admitted his tenancy under previous owner and receipt of legal notice by petitioner after purchase of disputed house---Respondent's suit seeking cancellation of sale-deed in favour of petitioner had been dismissed by Civil Court, which, having not been challenged, had attained finality---Registered sale-deed in favour of petitioner, thus, stood intact---High Court had set aside concurrent findings of Courts below without any reason---Supreme Court accepted appeal, set aside impugned judgment and restored judgments passed by Rent Controller and Appellate Court.
Tanvir Ahmed, Advocate-on-Record for Petitioner.
Malik Allah Yar Khan, Advocate Supreme Court for Respondent.
Date of hearing: 21st April, 2003.
2004 S C M R 595
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
ALAMDAR HUSSAIN ---Appellant
Versus
NAZIR HUSSAIN and others---Respondents
Civil Appeal No.2028 of 2001, decided on 28th October, 2002.
(On appeal from the judgment dated 8-10-2001 of the Lahore High Court, Lahore, passed in R.S.A. No.35 of 1993).
(a) Specific Relief Act (I of 1877)----
----Ss. 12 & 15---Suit for specific performance of entire agreement to sell even though plaintiff having knowledge that defendant had already sold part of suit-land---Courts below concurrently decreed the suit--Validity---Plaintiff through plaint had never volunteered to seek performance of agreement only vis-a-vis the land which still remained unsold, but had prayed for decree for performance of entire contract--Partial performance of contract could not be directed otherwise than in accordance with S.15 of Specific Relief Act, 1877---Courts below had omitted to notice such plea of plaintiff and such mandatory provision of law---High Court set aside impugned judgments/decree and dismissed the suit with costs.
(b) Civil Procedure Code (V of 1908)-----
----Ss. 100 & 115---Second appeal---Revision---Concurrent judgments of Courts below---Jurisdiction of High Court to set aside same---Scope--Not an absolute rule that such judgments could never be interfered with by High Court even though found to be based on gross misreading, non reading or misconception of evidence available on record---Laying down such a law would have the effect of setting the provisions of Ss. 100 & 115, C.P.C., at naught.
Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for Appellant.
Barrister Ch. M. Abdus Saleem, Senior Advocate Supreme Court, Wali Muhammad, Advocate Supreme Court ,and Muhammad Aslam, Advocate-on-Record for Respondents.
Date of hearing: 28th October, 2002.
2004 S C M R 602
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Faqir Muhammad Khokhar, JJ
ABDUL NASIR and another---Petitioners
Versus
ELECTION TRIBUNAL, TOBA TEK SINGH and others---Respondents
Civil Petition No.3375-L of 2002, decided on 12th December, 2002.
(On appeal from the judgment of the Lahore High Court, Lahore, dated 27-8-2002 passed in I.C.A. No.657 of 2002).
(a) Punjab Local Government Elections Rules, 2000---
----R. 71(3)---Non-verification of election petition and its annexures--Effect---Such failure would not render election petition unmaintainable.
S.M. Ayub v. Syed Yusaf Shah and others PLD 1967 SC 486 fol.
(b) Punjab Local Government Elections Rules, 2000---
----Rr. 70 & 80(d)---Constitution of Pakistan (1973), Arts.185(3) & 199---Election petition---Election Tribunal declared election as a whole to be void---High Court dismissed Constitutional petition and Intra-Court Appeal filed by the petitioner---Contention of petitioner was that reelection should have been ordered to the extent of two polling stations, where election had been adversely affected---Validity---Petitioner had not raised such ground either in Constitutional petition before the High Court or in Intra-Court Appeal---Petitioner was not allowed to raise such ground at such belated stage before the Supreme Court---Supreme Court dismissed petition and refused leave to appeal.
Pervaiz Inayat Malik, Advocate Supreme Court for Petitioners.
Nemo for Respondents.
Date of hearing: 12th December, 2002.
2004 S C M R 604
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
NEMAT ALI and another---Petitioners
Versus
Malik HABIB ULLAH and others---Respondents
Civil Petition for Leave to Appeal No. 1373-L of 1999, decided on 5th March, 2003.
(On appeal from the judgment dated 6-8-1999 of the Lahore High Court, Lahore, passed in Civil Revision No. 1203 of 1999).
West Pakistan Land Revenue Act (XVII of 1967)---
----S. 42---Civil Procedure Code (V of 1908), S.9---Change of longstanding entries in Revenue Record in summary manner by Collector--Validity---Rights of parties qua disputed property required determination after giving them fair opportunity to adduce evidence---Factual controversies could only be resolved by Civil Court having plenary jurisdiction.
Saiful Malook, Advocate Supreme Court for Petitioners.
Manzoor Hussain Butt, Advocate Supreme Court with Mahmudul Islam, Advocate-on-Record for Respondent No. 1.
Date of hearing: 5th March, 2003.
2004 S C M R 606
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, CJ., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ
MUHAMMAD USMAN QAYYUM---Appellant
Versus
UNIVERSITY OF ENGINEERING AND TECHNOLOGY, LAHORE and 5 others---Respondents
Civil Appeal No. 1257 of 2001, decided on 11th July, 2003.
(From the order dated 16-4-2001 passed by the Lahore High Court, in Writ Petition No.6119 of 2001).
Educational institution---
---- Constitution of Pakistan (1973), Art. 185---Examination of Civil Engineering---Re-evaluation of marks, prayer for---Supreme Court on account of hostile attitude and mala fides on the part of Engineering University nominated three independent and impartial persons to reevaluate two papers of the appellant---Appellant after re-evaluation secured first position in such papers---University, despite such position, did not declare result of appellant, over which Supreme Court directed the University to declare his result and issue him requisite certificates--University did not invite appellant to attend Convocation, over which Supreme Court again directed the University to award him degree and medals in a ceremonial manner, but University handed over the same to him in a sealed cover---University, in order to assess capability of appellant required him to take practical and viva voce examination of final year---Appellant apprehended that University would not give him fair deal in such matter, thus, Supreme Court appointed an ex Superintending Engineer for such purpose---Such Engineer found appellant over all capable towards his technical know-how regarding all his final year subjects' sectional work, practical and viva voce examination excellent, which was compatible with marks obtained by him in relevant theory papers---Supreme Court accepted appeal with directions to University to notify result of appellant, award him all medals, certificates and with request to Engineering Council to register him as Engineer.
Maqbool Elahi Malik, Senior Advocate Supreme Court, M.S. Khattak, Advocate-on-Record with Raja Abdul Ghafoor, Advocate-on-Record for Appellant.
S.M. Zafar, Senior Advocate Supreme Court for Respondents.
Date of hearing: 7th May, 2003.
2004 S C M R 612
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
JAN MUHAMMAD through Mubarik Ali and others---Petitioners
Versus
NAZIR AHMAD and others---Respondents
Civil Petition for Leave to Appeal No.3534-L of 2002, decided on 15th April, 2003.
(On appeal from the judgment dated 5-8-2002 of the Lahore High Cow, Lahore, in Civil Revision No.307 of 1993).
(a) Specific Relief Act (I of 1877)---
----S. 42---Civil Procedure Code (V of 1908), S.9---West Pakistan Land Revenue Act (XVII of 1967), S.42---Suit for declaration---Inheritance mutation, challenge to---Jurisdiction of Civil Court---Attestation of mutation on the basis of fictitious pedigree-table depriving plaintiff of his right of heirship --Plaintiff alleged such mutation having been attested in a mala fide manner through fraud and misrepresentation---Held: Fraud could always be challenged before Civil Court---Parties could not be left out without any relief---Civil Court had got jurisdiction in such matter.
(b) West Pakistan Land Revenue Act (XVII of 1967)---
----S. 42---Mutation proceedings are of summary nature.
(c) Civil Procedure Code (V of 1908)---
----S. 9---Fraud---Civil Court is a Court of plenary jurisdiction---Fraud can always be challenged before Civil Court.
Ch. Muhammad Anwar Bhinder, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.
Nemo for Respondents
Date of hearing: 15th April, 2003.
2004 S C M R 615
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
ALLAH BACHAI and others---Petitioners
Versus
FIDA HUSSAIN and others---Respondents
Civil Petition for Leave to Appeal No. 1349-L, decided on 17th April, 2003.
(On appeal froth the order dated 14-2-2002 passed by the Lahore High Court, in C.M. Nos.66-C and 67-C of 2000 in Civil Revision No.255 of 1981).
(a) Limitation Act (IX of 1908)---
----Art. 181---Provision of Art.181, Limitation Act, 1908--Applicability---Principles:
Column 3 of Article 181, Limitation Act, 1908 indicates that it is applicable where a right exists to snake an application, and the three years' period prescribed for making such an application commences from the time, when such right to make an application has accrued.
(b) Civil Procedure Code (V of 1908)---
----Ss. 115 & 151---Limitation Act (IX of 1908), Art.181---Constitution of Pakistan (1973), Art.185(3)---Dismissal of revision petition for non prosecution---Application for restoration of revision petition accompanied with, application for condonation of delay under S.151, C.P.C.---High Court dismissed such application---Validity---Provision of S.151, C.P.C., did not confer 'any right on any person to make application of any sort including application for restoration of revision petition dismissed for non-prosecution---Article 181, Limitation Act, 1908 would apply in a case, where right to make application existed: --No provision was available in the C.P.C., for restoration of revision petition---Article 181, Limitation Act, 1908, thus, would not apply to application filed before the High Court---Supreme Court dismissed petition and refused leave to appeal.
(c) Civil Procedure Code (V of 1908)---
----Ss. 151 &. 115---Provision of S.151, C.P.C.---Scope---Section 151, C.P.C. does not confer any right on any person to make application of any sort including application for restoration of revision petition dismissed for non-prosecution.
(d) Civil Procedure Code (V of 191)8)---
----S. 115---Constitution of Pakistan (1973), Art. 185(3)---Dismissal of revision petition for non-prosecution---Application seeking restoration of revision filed after four months of its dismissal---Sufficient cause--Petitioner's plea was that on the relevant date, his counsel had to leave the Court-room to appear before another Bench, and it was after his return that he found that revision had been dismissed for non prosecution---High Court dismissed such application---Validity---As to what had taken the petitioner almost four months' time to make the application was not explained---No reason, in circumstances, thus existed to interfere with the discretion exercised by the High Court--Supreme Court dismissed petition and refused the leave to appeal.
Ghulam Nabi Bhatti, Advocate Supreme Court with Faiz-ur-Rehman, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 17th April, 2003.
2004 S C M R 615
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
ALLAH BACHAI and others---Petitioners
Versus
FIDA HUSSAIN and others---Respondents
Civil Petition for Leave to Appeal No. 1349-L, decided on 17th April, 2003.
(On appeal froth the order dated 14-2-2002 passed by the Lahore High Court, in C.M. Nos.66-C and 67-C of 2000 in Civil Revision No.255 of 1981).
(a) Limitation Act (IX of 1908)---
----Art. 181---Provision of Art.181, Limitation Act, 1908--Applicability---Principles:
Column 3 of Article 181, Limitation Act, 1908 indicates that it is applicable where a right exists to snake an application, and the three years' period prescribed for making such an application commences from the time, when such right to make an application has accrued.
(b) Civil Procedure Code (V of 1908)---
----Ss. 115 & 151---Limitation Act (IX of 1908), Art.181---Constitution of Pakistan (1973), Art.185(3)---Dismissal of revision petition for non prosecution---Application for restoration of revision petition accompanied with, application for condonation of delay under S.151, C.P.C.---High Court dismissed such application---Validity---Provision of S.151, C.P.C., did not confer 'any right on any person to make application of any sort including application for restoration of revision petition dismissed for non-prosecution---Article 181, Limitation Act, 1908 would apply in a case, where right to make application existed: --No provision was available in the C.P.C., for restoration of revision petition---Article 181, Limitation Act, 1908, thus, would not apply to application filed before the High Court---Supreme Court dismissed petition and refused leave to appeal.
(c) Civil Procedure Code (V of 1908)---
----Ss. 151 &. 115---Provision of S.151, C.P.C.---Scope---Section 151, C.P.C. does not confer any right on any person to make application of any sort including application for restoration of revision petition dismissed for non-prosecution.
(d) Civil Procedure Code (V of 191)8)---
----S. 115---Constitution of Pakistan (1973), Art. 185(3)---Dismissal of revision petition for non-prosecution---Application seeking restoration of revision filed after four months of its dismissal---Sufficient cause--Petitioner's plea was that on the relevant date, his counsel had to leave the Court-room to appear before another Bench, and it was after his return that he found that revision had been dismissed for non prosecution---High Court dismissed such application---Validity---As to what had taken the petitioner almost four months' time to make the application was not explained---No reason, in circumstances, thus existed to interfere with the discretion exercised by the High Court--Supreme Court dismissed petition and refused the leave to appeal.
Ghulam Nabi Bhatti, Advocate Supreme Court with Faiz-ur-Rehman, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 17th April, 2003.
2004 S C M R 619
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, C.J. and Syed Deedar Hussain Shah, J
NISAR AHMED and others---Petitioners
Versus
NAVEED UD DIN and others---Respondents
Civil Petition No.581-K of 2003, decided on 6th October, 2003
Constitution of Pakistan (1973)---
----Arts. 183(3) & 199---Civil Procedure Code (V of 1908), O.XLVII, R.5---Judgment of Division Bench reviewed by Single Bench of High Court---Validity---Review arising of judgment passed by Division Bench ought to have been placed before same Division Bench, which was available and Single Bench should not have decided same---Office of High Court had not brought such facts to the notice of Chief Justice before constituting the Bench---Supreme Court accepted appeal, set aside impugned order and remanded case to High Court for disposal of review application preferably by Judges, who had heard the main case earlier.
Abdul Mujeeb Peerzada, Senior Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioners.
Dr. Qazi Khalid Ali, Additional Advocate-General Sindh for Respondents.
Date of hearing: 6th October, 2003.
2004 S C M R 621
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Faqir Muhammad Khokhar and Falak Sher, JJ
Messrs MUHAMMAD AMIN BROS. (PVT.) LTD. and others---Petitioners
Versus
FEDERATION OF PAKISTAN through the Secretary (Finance), Islamabad and others---Respondents
Civil Petitions Nos.983-L to 993-L of 2002, decided on 3rd-June, 2003.
(On appeal from the judgment of the Lahore High Court, Lahore, dated 7-2-2003 passed in Writ Petitions Nos.21046, 21041, 21790, 21801, 21792, 21791, 21802, 21803, 21846, 2.1845 and 21844 of 2001).
(a) Sales Tax Act (VII of 1990)---
----S. 3(2)(a)---S.R.O. 1032(1)/94, dated 18-10-1994---Constitution of Pakistan (1973), Fourth Sched., Federal Legislative List, Item 49--Supply of coal produced by Coal Miner---Levy of sales tax on such supply---Validity---Such levy was Constitutionally justified for not being a kind of tax on any mining activity, rather same was on sale, importation, exportation, production, manufacture and consumption of goods as envisaged by Entry No.49 of Fourth Sched. of the Constitution.
(b) Sales Tax Act (VII of 1990)---
----S. 3(2)(a)---S.R.O. 1032(1)/94, dated 18-10-1994---Constitution of Pakistan (1973), Art.25---Supply of coal produced by Coal Miners--Levy of sales tax by Federal Government on such supply---Recovery of sales tax from Coal Miners in Punjab at ad valorem rate, while in Balochistan at fixed rate---Validity---Sales tax was recoverable under S.R.O. 1032(1)/94 at the same rate from Coal Miners in all the four Provinces---Such recovery had been made in different manner in Province of Balochistan on account of circumstances prevailing there as Provincial Government had agreed to contribute towards payment of sales tax on behalf of Coal Miners in its Province, while remaining amount was to be paid by Coal Miners---No case of discrimination regarding levy of tax at same rate had been made out against the Federal Government---Supreme Court refused leave to appeal.
Mian Ashiq Hussain, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioners.
M. Yawar Ali Khan, Deputy A.-G. with Muhammad Aslam Chaudhry, Advocate-on-Record for Respondents.
Date of hearing: 3rd June, 2003.
2004 S C M R 623
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Qazi Muhammad Farooq and Hamid Ali Mirza, JJ
NAZEER AHMED CHAKRANI---Petitioner
Versus
GOVERNMENT OF PAKISTAN and others---Respondents
Civil Petition No. 1380 of 2000, decided on 7th May, 2001.
Service Tribunals Act (LXX of 1973)---
----Ss. 2-A & 4---Constitution of Pakistan (1973), Art.212(3)---Demotion of civil servant---Principles of natural justice, violation of---Civil servant, who was promoted as General Manager, had served in that capacity for more than one and half years, but thereafter he was demoted to the post of Deputy General Manager simply stating that the promotion was wrongly allowed to him---Authority before taking adverse action/demotion of civil servant, had not called upon him to explain the circumstances under which he was promoted and whether or not he was capable to retain promoted post of General Manager---No ground was given in the demotion letter as to on what basis the Competent Authority had formed its opinion that promotion was allowed to civil servant wrongfully---Civil servant's demotion had taken place in violation of principles of natural justice as his promotion was scrutinized behind his back and he was condemned unheard---Authority, though to take action against civil servant, but could take such action adopting the proper procedure---No proper procedure having adopted and civil servant had been demoted in violation of principles of natural justice, petition for leave to appeal was converted into appeal and same was allowed---Order of demotion passed against civil servant was set aside, in circumstances.
Mrs. Anisa Rehman v. PIAC and others 1994 SCMR 2232; Pakistan International Airlines (PIAC) through its Chairman v. Nasir Jamal Malik and others 2001 SCMR 934 = 2001 PLC (C.S.) 890; Rehan Saeed Khan and others v. Federation of Pakistan and others 2001 PLC (C.S.) 1275: PLD 1992 SC 907; 2000 SCMR 907; PLD 1987 SC 304; Mahmood Hussain v. Pakistan International Airlines and others 1989 PLC (C.S.) 549; United Bank Limited and others v. Ahsan Akhtar and others 1998 SCMR 68; 1998 SCMR 68; Mrs. M.N. Arshad and others v. Miss Naeema Khan and others PLD 1990 SC 612; Chief. Commissioner Karachi v. Mrs. Dina Sohrab Katrak PLD 1959 SC (Pak.) 45; Messrs Faridsons Limited, Karachi and another v. Government of Pakistan and another PLD 1961 SC 537; Abdur Rehman v. Collector and Deputy Commissioner, Bhawalnagar and others PLD 1961 SC 461; Abul A'la Maudoodi v. Government of West Pakistan PLD 1964 SC 673; University of Dacca v. Zakir Ahmad PLD 1965 SC 90; Muhammad Hayat v. Province of West Pakistan PLD 1964 SC 321; Messrs East-end Exports, Karachi v. The Chief Controller of Imports and Exports, Rawalpindi and another PLD 1965 SC 605; Pakistan and others v. Public at Large and others PLD 1987 SC 304; Khalid-uz-Zaman v. Supreme Appellate Court, Lahore and 4 others PLD 1994 SC 885; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer N.A.-158, Naushero Feroze and others 1994 SCMR 1299 and Faqir Ullah v. Khalil-uz-Zaman and others 1999 SCMR 2203 ref.
Abdul Sarwar Qureshi, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.
Haq Nawaz Khan, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents.
Date of hearing: 7th May, 2001.
2004 S C M R 630
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, Abdul Hameed Dogar and Sardar Muhammad Raza Khan, JJ
WATER AND POWER DEVELOPMENT AUTHORITY through Chairman, WAPDA House, Lahore---Petitioner
Versus
ABBAS ALI MALANO and another---Respondents
Civil Petitions Nos. 1452, 1453 and 1454 of 2002, decided on 2nd April, 2003.
(On appeal from the judgment dated 6-6-2002 of the Federal Service Tribunal, Karachi, passed in Service Appeals Nos.103-K to 105-K of 1999).
(a) Constitution of Pakistan (1973)-----
----Art. 212(3)---Supreme Court Rules, 1980, O.XIII, R.1---Service Tribunals Act (LXX of 1973), S.4---Limitation---Condonation---Three petitions for leave to appeal against common judgment passed by Service Tribunal in three appeals ---Limitation---Condonation of delay---Tribunal sent one copy of impugned judgment to one petitioner, who after its receipt filed petition within time---Remaining two petitions were filed after receipt of certified copies of impugned judgment---Explanation seemed to be reasonable---Supreme Court condoned delay in filing petitions.
(b) Service Tribunals Act (LXX of 1973)-----
----S. 4---Constitution of Pakistan (1973), Art.212(3)---Termination of services of ad hoc appointees on ground of being violative of law--Petitioners were appointed on ad hoc basis for period of six months on recommendations of Placement Bureau subject to qualifying examination---Petitioners could not qualify examination, thus, their services were terminated; but such order was not implemented and they were sent for specialized training course for evaluating their performance---Services of appointees were terminated with change of Government treating them as political appointees---Constitutional petitions filed by appointees against termination order were allowed by High Court---Authority did not press their petitions before Supreme Court after grant of leave to appeal leaving judgment of High Court in field alone---Appointees resultantly were reinstated in service on terms and conditions mentioned in their initial order of appointment subject to qualifying examination, which was never held--Appointees in order to get their services regularized approached High Court, which advised authority to organize examination---Authority again, with change of Government, terminated services of appointees terming them to have been appointed in violation of the rules laid down in human rights case--Service Tribunal set aside such order---Validity---Case of appointees did not fall within any of the categories laid down in human rights case--None of such appointees was lacking requisite qualification or had been appointed by incompetent authority---Authority had never organized examination and finalized their selection and regularization till passing of final termination order---Impugned order showed that appointees had been discriminated against other employees, who had been appointed in similar manner on ad hoc basis, but had been subsequently confirm and regularized---Non-holding of examination/interview by authority amounted to waiver and appointees should have been notified as confirmed ---Appointees had served for eleven years and thus, vested right of being confirmed had accrued to them---Supreme Court dismissed petitions and refused leave to appeal.
Abdul Jabbar Memon and others case 1996 SCMR 1349; Sheikh Mudassar Ahmad v. Government of Pakistan through Secretary, Establishment Division, Islamabad and 2 others 1991 PLC (C.S.) 1047 and The Regional Commissioner of Income-tax, Central Region, Lahore and others v. Zaffar Hussain and others PLD 1992 SC 869 ref.
(c) Civil service-------
----Ad hoc appointment subject to passing qualifying examination---Non holding of examination/.interview by authority would amount to waiver.
(d) Civil service---
----Irregular appointment on temporary basis---Termination of services--Where authority itself was responsible for making such appointment, but subsequently took a turn and terminated their services on ground of same having been made in violation of the rules---Supreme Court did not appreciate such conduct, particularly when appointees fulfilled requisite qualifications.
Secretary to Government of N.-W.F.P., Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan 1996 SCMR 413 and Director, Social Welfare, N.-W.F.P., Peshawar v. Sadullah Khan 1996 SCMR 1350 ref.
Muhammad Munir Paracha, Advocate Supreme Court for Petitioners.
Hafiz S.A. Rehman, Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Respondents (in C.P. No.1453 of 2002).
Respondents in person (in Civil Petitions Nos. 1452 and 1454 of 2002.)
Date of hearing: 2nd April, 2003.
2004 S C M R 637
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
MAQBOOL AHMAD and another----Petitioners
Versus
CHIEF EXECUTIVE, FAISALABAD ELECTRIC SUPPLY COMPANY and another---Respondents
Civil Petitions for Leave to Appeal Nos. 2290-L and 2296-L of 2001, decided on 10th June, 2003.
(On appeal from the judgment dated 10-5-2001 passed by the Federal Service Tribunal, Lahore in Appeal No.8940-L of 1999).
Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978-----
----R.4(1)(b)(iv)---Service Tribunals Act (LXX of 1973), S.4--Constitution of Pakistan (1973), Art. 212(3)---Penalty of reduction in rank enhanced later on to dismissal from service and recovery of alleged loss---Service Tribunal converted penalty of dismissal from service into reduction in rank and set aside penalty of recovery of alleged loss except amount already paid by civil servant---Service Tribunal found that civil servant was not alleged to be responsible for misappropriating material, but was charged to be negligent in ensuring safe custody of material and exercising proper control over his subordinates---Penalty of dismissal from service, thus, was harsh and did not commensurate with alleged misconduct---Civil servant had been treated discriminately on account of letting off other officials facing identical accusation---Show-cause notice proposing enhancement of penalty did not show any reason for enhancement nor such reason was given in the order of dismissal from service---Civil servant could not point out any illegality in judgment of Service Tribunal refusing to him refund of amount already paid by him to make good loss suffered by the Department and in refusing payment of salary payable to him for period starting with date of his dismissal and ending with date of reinstatement---Supreme Court dismissed petition and refused leave to appeal.
Mian Mahmood Hussain, Advocate Supreme Court with Faiz-ur-Rehman, Advocate-on-Record for Petitioners (in C.P. No.2290-L of 2001 and for Respondent (in C.P. No.2296-L of 2001).
Abdul Rehman Madni, Advocate Supreme Court with Sh. Salahud-Din, Advocate-on-Record for Respondents (in C.P. No.2296-L of 2001 and for Petitioner (in C.P. No.2290-L of 2001).
Date of hearing: 10th June, 2003.
2004 S C M R 639
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ
GOVERNMENT OF SINDH through Secretary, Home Department and others---Petitioners
Versus
ABDUL JABBAR and others---Respondents
Civil Petition No.556-K of 2001, decided on.30th November, 2001.
(On appeal from the judgment dated 5-7-2001 passed by the High Court of Sindh, Hyderabad Circuit in C.P. No.D-191 of 1996).
Constitution of Pakistan (1973)---
----Arts. 185(3) & 199---Civil service---Appointments against advertised posts---Petitioners qualified written test and interview and were recommended by Selection Committee---Authority made appointments on the basis of list approved by Government as per direction of higher Authorities, thus, deprived petitioners having legitimate expectation for appointment---High Court accepted Constitutional petition with direction to respondents to issue appointment letters to petitioners---Petition for leave to appeal was dismissed against judgment of the High Court.
Senior Superintendent of Police and others v. Makhdoom Ayaz Ahmed Siddiqui C.P. No.771-K of 2001 rel.
Suleman Habibullah, Additional Advocate-General with Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioners.
Respondent No. 1 in person.
Date of hearing: 30th November, 2001.
2004 S C M R 641
[Supreme Court of Pakistan]
Present : Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ
SENIOR SUPERINTENDENT OF POLICE, GOVERNMENT OF SINDH, HYDERABAD and others ---Petitioners
Versus
IQBAL AHMAD and another---Respondents
Civil Petitions for Leave to Appeal Nos. 662-K and 663-K of 2001 decided on 28th November, 2001.
(On appeal from the judgment of the Sindh Service Tribunal, at Karachi, dated 12-6-2001, passed in Appeals Nos. 99 and 100 of 1999).
Sindh Civil Servants (Efficiency and Discipline) Rules, 1973-----
----R.4(b)(iv)---Sindh Service Tribunals Act (XV of 1973), S.4--Co:istitution of Pakistan (1973), Art. 212(3)---Dismissal of civil servant, a police official, from service for involvement and arrest in criminal case---Departmental appeal to Deputy Inspector-General of Police was dismissed in June/July, 1997---Civil servant after his acquittal through judgment dated 30-4-1998 produced its copy before Inspector General of Police, who dismissed his review application in February/March, 1999---Service Tribunal accepted appeal of civil servant---Validity---Police Authorities had not given weight to acquittal order of civil servant passed by Court of competent jurisdiction--Impugned judgment was well-reasoned and in accordance with principles laid by Supreme Court---Leave to appeal was refused.
Suleman Habibullah, Additional Advocate-General, Sindh and Akhlaq A. Siddiqui, Advocate-on-Record for Petitioners.
Date of hearing: 28th November, 2001.
JUDGMENT
SYED DEEDAR HUSSAIN SHAH, J.---By this consolidated judgment we intend to dispose of the above mentioned petitions, which are directed against a common judgment, dated 12-6-2001 of the Sindh Service Tribunal, at Karachi, passed in Appeals Nos. 99 and 100 of 1999.
The facts, in brief, are that the petitioners who were constables and posted at Police Station Latifabad "A" Section, Hyderabad, were served with show-cause notice dated 23-10-1994, separately; by the S.S.P. Hyderabad, on the allegations that they were involved and arrested in Criminal Case No. 121 of 1994 under sections 395 and 396, P.P.C. The respondents submitted their replies but vide two separate orders dated 6-11-1994 they were dismissed from service by S.S.P. Hyderabad. Their departmental appeals to D.I.G. Police were rejected on- 9-6-1997 and 25-7-1998, respectively. Also, their review applications were turned down by the I.G. Police, Sindh vide orders dated 10-2-1999 and 10-3-1999.
Thereafter the respondents filed appeals before the Sindh Service Tribunal, Karachi, which were accepted vide impugned judgment dated 12-6-2001. Hence, these petitions by the Department.
Mr. Suleman Habibullah, learned Additional Advocate-General, appearing on behalf of the petitioners, inter alia, contended that impugned judgment is against law and facts and is not maintainable and that before the Tribunal, Provincial Government of Sindh was not impleaded as a party.
We have considered the arguments of the learned Additional Advocate-General and minutely gone through the material available on record. Admittedly, the respondents were dismissed from service by the S.S.P. Hyderabad on the allegations that they were involved and arrested in Criminal Case No.121 of 1994 registered under sections 395/396, P.P.C. registered at Police Station Latifabau "A" Section. Their departmental appeals were dismissed by the higher forums. Subsequently, the IVth Additional Sessions Judge, vide judgment dated 30-4-1998, acquitted the respondents holding that the case against them was not proved. The respondents produced a certified copy of the aforesaid judgment before the D.I.G. Hyderabad as well as the I.G. Police Sindh, but the same was not considered by them. In this context it would be advantageous to reproduce here the relevant paragraph of the impugned judgment, which reads as under:--
"The learned A.A.-G. very candidly concedes that the Authority concerned while passing the impugned order failed to consider the legal and factual aspects of the acquittal of the appellants from the criminal case. He signifies his no objections if the appeals allowed to the extent of reinstatement of appellants in service subject to the relinquishment of back benefits."
The higher police authorities did not give weight to the acquittal order of the respondents passed by a Court of competent jurisdiction inasmuch as there was no other charge or show-cause notice against the respondents. Keeping in view the circumstances, the Tribunal had considered the case in its proper perspective. The impugned judgment is well-reasoned and in accordance with the principles laid down by this Court.
For the foregoing reasons, these petitions are dismissed and leave to appeal is refused.
S.A.K./S-319/S Leave refused
2004 S C M R 644
[Supreme Court of Pakistan]
Present: Irshad Hassan Khan, C.J., Ch. Muhammad Arif and Munir A. Sheikh, JJ
STATE PETROLEUM REFINING AND PETROCHEMICAL CORPORATION LIMITED---Petitioner
Versus
LATEEF SIDDIQUI and 2 others---Respondents
Civil Petitions Nos. 348-K and 355-K of 2001, decided on 1st August, 2001.
(On appeal from judgment dated 14-3-2001 passed by the Federal Service Tribunal, Islamabad in Appeal No.771(K) of 1999).
Service Tribunals Act (LXX of 1973)---
----S.4---Constitution of Pakistan (1973), Art. 212(3)---Converting order of dismissal from service into compulsory retirement---Jurisdiction of Service Tribunal---Scope---Contention of petitioner-Corporation was that in absence of any provision in its Service Rules for imposing penalty of "compulsory retirement from service" upon any of its employees, Service Tribunal had exceeded its jurisdiction while converting order of respondent-employee's "dismissal from service" into "compulsory retirement"-- -Contention of respondent-employee was that Tribunal had erred in imposing major penalty of "compulsory retirement" in absence of evidence as to his guilt on record; and that Tribunal without setting aside order of dismissal from service could not convert the same into any other penalty without establishing any nexus with proposed punishment---Supreme Court granted leave to appeal to consider such pleas of parties.
Qamarul Islam Abbas, Advocate Supreme Court with K.A. Wahab, Advocate-on-Record for Petitioner (in C.P. - No.348-K of 2001).
Akhlaq Ahmad Siddiqui, Advocate-on-Record for Respondents (in C.P. No.348-K of 2001).
Akhlaq Ahmad Siddiqui, Advocate-on-Record for Petitioner (in C.P. No.355-K of 2001).
Qamarul Islam Abbas, Advocate Supreme Court with K.A. Wahab, Advocate-on-Record for Respondents.
Date of hearing : 1st August 2001.
2004 S C M R 647
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Tanvir Ahmed Khan, JJ
TANVIR AHMED ---Petitioner
Versus
CHIEF SECRETARY, GOVERNMENT OF PUNJAB, LAHORE---Respondent
Civil Petition for Leave to Appeal No. 1154/L, of 1999, decided on 3rd July, 2002.
(On appeal from the judgment dated 1-4-1999 of the Punjab Service Tribunal, Lahore, passed in Appeal No.477 of 1995).
(a) Civil service---
----Move-over---Move-over of a civil servant from one scale to another would not tantamount to promotion as move over was only awarded to an incumbent after reaching the maximum of his substantive scale.
(b) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975-----
----R.4(1)(b)(i)---Fundamental Rules, F.R.29---Constitution of Pakistan (1973), Art. 212(3)---Penalty of reduction to initial stage---Infliction of---Conversion of petition into appeal---Civil servant who had been serving as a Lecturer in English in Education Department for the last 20 years, was proceeded against for tampering with original seniority list and was also charged for certain acts of omission and commission and was inflicted punishment of reduction to a lower stage without specifying period of said punishment---Charge against civil servant though was serious in nature, but punishment of reduction to a lower stage inflicted on him without specifying period of punishment, appeared to be violative of F.R. 29 which had provided that if a Government servant, on account of misconduct or inefficiency, was reduced to a lower grade or post or to a lower stage in his time scale, Authority ordering such reduction would state period for which it would remain effective---Petition for leave to appeal was converted into appeal by the Supreme Court and allowing the same, judgment of Service Tribunal was modified restricting punishment inflicted upon civil servant for a period of four years which would meet the ends of justice.
Hafiz Tariq Nasim, Advocate Supreme Court with Mahmudul Islam, Advocate-on-Record for Petitioner.
Muhammad Sharif Butt, Respondent.
Date of hearing: 3rd July, 2002.
2004 S C M R 649
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
ISLAMIA UNIVERSITY, BAHAWALPUR---Appellant
Versus
MUHAMMAD HAMEED BHATTI and another---Respondents
Civil Appeals Nos.2782 and 2783 of 2001, decided on 27th February, 2003.
(On appeal from the judgment dated 22-2-2001 of the Lahore High Court, Bahawalpur Bench, Bahawalpur, in Civil Revisions Nos.305-D and 306-D of 1993).
(a) Islamia University of Bahawalpur Act (IV of 1975)---
----Preamble---Islamia University of Bahawalpur Employees (Pension) Statutes, 1979, Chap. II ---Islamia University of Bahawalpur Officers (Appointment) Statutes, 1977, Chap. VIII---ESTACODE, p.309, Condition No.26---Constitution of Pakistan (1973), Art. 185(3)---Pension and move-over, grant of---Right of person re-employed in University--Leave to appeal was granted to consider, whether re-employment would constitute a bar for grant of pension, move-over and ancillary benefits in view of relevant provisions as contained in Islamia University of Bahawalpur Act, 1975 and Islamia University of Bahawalpur Employees (Pension) Statutes, 1979, whether provisions as contained in Islamia University of Bahawalpur Act, 1975, and Islamia University of Bahawalpur Employees (Pension) Statutes, 1979 could be superseded by instruction No. 26 published in ESTACODE at p.309 providing that a person re-employed could take all benefits of service and pension, whether High Court had ignored relevant provisions of Islamia University of Bahawalpur Officers (Appointment) Statutes, 1977 and resultantly exact nature of service of respondents could not be determined having a substantial bearing to set the controversy at naught.
(b) Islamia University of Bahawalpur Act (IV of 1975)---
-----Preamble---Islamia University of Bahawalpur Employees (Pension) Statutes, 1979, Chap. II---Islamia University of Bahawalpur Officers (Appointment) Statutes, 1977, Chap. VIII---Specific Relief Act (I of 1877), S.42----Constitution of Pakistan (1973), Art. 185(3)---Pensionary benefits and move-over---Entitlement---Plaintiffs after securing premature retirement from another University joined defendant-. University; which denied them pensionary benefits and approved moreover---Trial Court decreed declaratory suits filed by plaintiffs, which" decrees were upheld by Appellate Court and in revision by the High Court---Validity---Plaintiffs had not been re-employed, rather their appointment was made through initial recruitment method and had been confirmed in their posts after completion of probationary period--Plaintiffs after attaining superannuation were appointed on contract basis in view of their meritorious services---Such contract service on their re-employment was after superannuation-- Earlier period of service prior to their retirement, thus, could not be termed as contract employment disentitling them to pensionary benefits--Pensionary benefits in such situation could not be denied under law to employees already enjoying pensionary benefits from previous Department---Plaintiffs after their initial recruitment had rendered service with defendant for more than 10 years, thus, were entitled to pensionary benefits according to Islamia University of Bahawalpur Employees (Pension) Statutes, 1979---Denial of move-over as approved by Committee of defendant-University was without any justification---Plaintiffs after their retirement had been undergoing continuous agony for last 13 years---Defendant-University had deprived plaintiffs of their hard-earned benefits for such, a long period, which could not be termed as fair on its part--Supreme Court dismissed appeals with direction to defendant-University to pay forthwith Rs. 50,000 as costs to each plaintiff.
(c) Practice and Procedure---
----Whatever is not prohibited is deemed to be permitted.
Muhammad Munir Peracha, Advocate Supreme Court for Appellants.
Mian Fazal Mehmood Fazli, Senior Advocate Supreme Court for Respondents.
Syed Shabbar Raza Rizvi, A.-G., Punjab and Imtiaz Ahmed, Advocate Supreme Court.
Date of hearing: 27th February, 2003.
2004 S C M R 656
[Supreme Court of Pakistan]
Present: Javed Iqbal and Falak Sher, JJ
ANWAR HUSSAIN (Retd.) DEPUTY COLLECTOR---Petitioner
Versus
DIRECTOR-GENERAL, PAKISTAN BROADCASTING CORPORATION HEADQUARTERS, ISLAMABAD and 2 others---Respondents
Civil Petition No.2878-L of 2002, decided on 27th March, 2003.
(On appeal from the judgment dated 5-10-2000 passed by the Federal Service Tribunal, in Appeal No.581(L) of 1998).
(a) Pakistan Broadcasting Corporation Employees (Efficiency and Discipline) Rules, 1979---
-----Rr.5 & 6---Inquiry Committee consisting of three members---Report of Committee signed by only one member---Validity---Such Committee had been constituted to conduct a preliminary inquiry into allegations prior to issuance of' charge-sheet---Such Committee was a fact finding body and not Inquiry Officer under disciplinary rules.
(b) Civil service---
---- Pensionary benefits---Recovery of amount due from civil servant--Employer while defraying sums could legitimately adjust amount due.
Mian Mahmood Hussain, Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 27th March, 2003.
2004 S C M R 659
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J. Javed Iqbal and Abdul Hameed Dogar, JJ
HAMEED KHAN---Petitioner
Versus
THE STATE---Respondent
Criminal Miscellaneous Application No.368 of 2003 in Criminal Petition No. 153-L of 2003, decided on 17th February, 2004.
(On appeal from the judgment dated 21-1-2003 of Lahore High Court, Lahore, passed in Criminal Appeal No. 1433 of 2000).
Penal Code (XLV of 1860)---
----S. 302---Criminal Procedure Code (V of 1898), S.345---Constitution of Pakistan (1973), Art.185(3)---Compromise---Both the son and the daughter of deceased appeared in the Court and admitted to have received their respective shares as legal heirs from the amount given to them by the accused as compensation---Compromise entered into between the parties, according to the report of the Additional Sessions Judge, was genuine---Compromise was accepted by the Supreme Court in circumstances and the accused was acquitted under S.345, Cr.P.C. accordingly.
Dil Muhammad Tarar, Advocate Supreme Court for Petitioner.
Muhammad Zaman Bhatti, Advocate Supreme Court for the State.
Date of hearing: 17th February, 2004.
2004 S C M R 660
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui and Hamid Ali Mirza, JJ
SAEEDULLAH SOOMRO and another---Petitioners
Versus
THE STATE through National Accountability Bureau---Respondent
Criminal Petitions Nos.42-K and 43-K of 2003, decided on 22nd July, 2003.
Criminal Procedure Code (V of 1898)---
----S. 497---National Accountability Ordinance (XVIII of 1999), Ss.10 & 32(b)---Constitution of Pakistan (1973), Art. 185(3)---Bail, grant of--Appeal preferred by the accused before High Court was fixed for hearing more than twelve times and on two occasions arguments were heard, yet the judgment was not delivered---Matter was adjourned as a routine on one ground or the other---Appeal under S.32(b) of the National Accountability Ordinance, 1999, was required to be finally disposed of within 30 days from the date of its filing---Accused had earned one year's remission and he was to remain in custody only for about two years---Prosecution could not satisfactorily explain as to why on so many occasions the matter 'was adjourned and why concrete steps were not taken too conclude the same within the time limit prescribed by law---Bail was granted to accused in circumstances.
Azizullah Shaikh, Senior Advocate, Supreme Court with Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioners.
Nadeem Azhar Siddiqui, Deputy Attorney-General with Anwar Tariq, Deputy Prosecutor-General for Respondent.
Date of hearing: 22nd July, 2003.
2004 S C M R 662
[Supreme Court of Pakistan]
Present: Jawed Iqbal, Tanvir Ahmed Khan and Faqir Muhammad Khokhar, JJ
MUHAMMAD MUNIR-Petitioner
Versus
THE STATE---Respondent
Criminal Petition for Leave to Appeal No.818/L of 2002, decided on 30th January, 2003.
(On appeal from the judgment dated 3-10-2002 of the Lahore High Court, Lahore, passed in Criminal Appeal No.570 of 1998 and Murder Reference No.288 of 1998).
Penal Code (XLV of 1860)---
----S. 302/34---Constitution of Pakistan (1973), Art.185(3)---F.I.R. containing all the details was promptly recorded---Ocular testimony inspired confidence and could not be discarded simply because of the relationship of the eye-witnesses with the deceased who had no ill-will or malice to involve the accused falsely in the case in place of the real culprits---Medical evidence was totally in line with the ocular version--Knife recovered at the instance of accused was found stained with blood---Motive was not only admitted by the accused but was also reflected from his statement recorded under S.342, Cr.P.C.---Accused had killed the deceased in a brutal and barbaric manner by inflicting 14 sharp-edged weapon injuries on the vital parts of his body and he did not deserve any leniency in his sentence---Leave to appeal was refused to accused in circumstances.
Zahid Hussain Khan, Advocate Supreme Court for Petitioner.
Salma Malik, A.A.-G. Punjab for the State.
Date of hearing: 30th January, 2003.
2004 S C M R 664
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, C.J., Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ
BENAZIR BHUTTO and another---Appellants
Versus
THE STATE and others---Respondents
Criminal Appeal No. 166 of 1998 and Criminal Petitions Nos. 187 and 202 of 1998, decided on 12th September, 2003.
(a) Ehtesab Act (IX of 1997)---
----Ss.3(1) & 26---Leave to appeal was granted to, accused to consider as to whether or not an offence under S.3(1) of the Ehtesab Act, 1997, had been committed.
(b) Ehtesab Act (IX of 1997)---
----S. 3(1)---History of adjournments in the cases revealed that the counsel for the appellant wanted to prolong the matter and the adjournments were being sought since the year 1998 to delay the hearing of the cases---Proceedings in the Reference against the accused before the Accountability Court had been concluded but the judgment could not be announced on account of the stay order granted by the Supreme Court---Order restraining the trial Court from announcing the final judgment was recalled in circumstances.
Mehr Khan Malik, Advocate-on-Record for Appellant (in Criminal Appeal No. 166 of 1998).
Abdul Hafeez Lakhoo, Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Appellants.
Makhdoom Ali Khan, Attorney-General of Pakistan with Raja Muhammad Irshad, Deputy Attorney-General, S. Nasir Hussain Jafri, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent No. 1.
Date of hearing: 12th September, 2003.
2004 S C M R 667
[Supreme Court of Pakistan]
Present: Sardar Muhammad Raza Khan and Falak Sher, JJ
SALEEM-UR-REHMAN---Petitioner
Versus
FAQIR HUSSAIN and others---Respondents
Criminal Petition for Leave to Appeal No.74-P of 2002, decided on 19th May, 2003.
(On appeal from the judgment dated 24-6-2002 of the Peshawar High Court, Peshawar, in Criminal Miscellaneous No. 17 of 2002).
(a) Criminal Procedure Code (V of 1898)---
----S. 145---Dispute concerning land, etc. ---Procedure---Scope--Question of entitlement of land is not a matter of consideration before a Magistrate while exercising jurisdiction under S.145, Cr.P.C.---Such question is always decided by a Civil Court---Criminal Court is only supposed to determine the factum of actual physical possession on the crucial dates.
(b) Criminal Procedure Code (V of 1898)---
----Ss. 145 & 561-A---Constitution of Pakistan (1973), Art.185(3)--Judgment of Sessions Court was well-reasoned and well-founded with reference to the factum of actual physical possession on the spot at the relevant time as provided in S.145, Cr.P.C. and being neither perverse nor a result of misreading or non-reading of evidence could under no circumstances be quashed by High Court in exercise of its extraordinary jurisdiction under S.561-A, Cr.P.C. as an alternative of appellate jurisdiction---High Court had invoked its jurisdiction under S.561-A, Cr.P.C. after the remedy of revision had been exhausted, merely because it had come to a different conclusion on appreciation of evidence---High Court should have interfered only when it was satisfied that the lower Court had caused gross miscarriage of justice amounting to abuse of the process of the Court in appreciation of evidence---Petition for leave to appeal was converted into appeal and accepted in circumstances and the impugned judgment of High Court was set aside and that of Sessions Court was restored accordingly.
Khawaja Fazal Karim v. The State PLD 1976 SC 461 and Syed Munawwar Ali Zaidi v. Mst. Qaisar Jehan PLD 1992 SC 406 ref.
Qazi Muhammad Jamil, Advocate Supreme Court with Haji M. Zahir Shah, Advocate-on-Record for Petitioner.
M. Aman Khan, Advocate Supreme Court for Respondents.
Sardar Shaukat Hayat, Additional A.-G. for the State.
Date of hearing: 22nd October, 2002.
2004 S C M R 672
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, C. J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ
Malik MANZOOR HUSSAIN ---Petitioner
Versus
ELECTION COMMISSION---Respondent
Civil Petition No. 1839 of 2002, decided on 13th May, 2003.
Representation of the People Act (LXXXV of 1976)---
---S. 52---Constitution of Pakistan (1973), Arts.185(3) & 199--Constitutional petition---Election of Provincial Assembly---Shifting of notified Polling Station on the day of polling to a place not a notified Polling Station---Election commission on such ground ordered re-polling in such Polling Station, which order was upheld by High Court in Constitutional jurisdiction---Validity---Such shifting of Polling Station had given rise to confusion and inconvenience, thus, majority of voters were unable to cast their votes---Order of Election Commission was perfectly legal to ensure just and fair elections---Petitioner had approached High Court at such a crucial juncture, when process of election could not be stopped---High Court had rightly concluded that disputes/controversies emanating from elections could only be resolved by Election Tribunals and petitioner would be well within his right to have a recourse to election petition at appropriate time---Impugned judgment did not suffer from any illegality or irregularity warranting interference---Supreme Court dismissed petition and refused leave to appeal.
M. Safdar Khan, Advocate -Supreme Court with M.A. Zaidi, Advocate-on-Record for Petitioner.
Ch. Aitzaz Ehsan, Advocate Supreme Court with Rashid ul Haq, Advocate Supreme Court for the Respondents.
Makhdoom Ali Khan, Attorney-General for Pakistan on Court notice.
Date of hearing: 13th May, 2003.
2004 S C M R 674
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Falak Sher, JJ
ABDUL QADOOS---Petitioner
Versus
MEMBER (REVENUE), BOARD OF REVENUE, PUNJAB and others---Respondents
Civil Petition for Leave to Appeal No.625 of 2002, decided on 16th December, 2003.
(On appeal from the judgment/order of the Lahore High Court, Lahore, dated 21-3-2002, passed in Writ Petition No.3227 of 1993).
West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)---
----S. 10---Constitution of Pakistan (1973), Arts.185(3) & 199--Constitutional petition---Redemption of: mortgaged land---Land mortgaged 31 years ago was ordered to be redeemed by Collector on payment of mortgage money---Findings of fact recorded by Additional Commissioner were upheld by Board of Revenue and maintained by High Court---Impugned judgment did not suffer from misreading or non-reading or misconstruction of law---Supreme Court dismissed appeal and refused leave to appeal.
Ch. Muhammad Zahoor Nasir, Advocate Supreme Court with Ch. Muhammad Akram, Advocate-on-Record for Petitioner.
Shaukat Ali Mehr, Advocate Supreme Court for Respondents Nos. 3 to 8.
Ms. Afshan Ghazanfar, A.A.-G. for Respondents Nos. 1 and 2.
Date of hearing: 16th December, 2003.
2004 S C M R 676
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Faqir Muhammad Khokhar, JJ
MUHAMMAD QASIM---Petitioner
Versus
INSPECTOR-GENERAL OF POLICE, PUNJAB and others---Respondents
Civil Petition for Leave to Appeal No.395 of 2003, decided on 8th January, 2004.
(On appeal from the judgment/order of the Punjab Service Tribunal, Lahore, dated 22-1-2003, passed in Appeal No.2377 of 2002).
Punjab Police (Efficiency and Discipline) Rules, 1975---
----Rr. 4, 6 & 7---Constitution of Pakistan (1973), Art.212(3)--Reduction in rank---Failure of Police Inspector to arrest accused involved in murder case---Dismissal of appeal by Service Tribunal--Validity---Authority had proceeded against civil servant in accordance with law by providing him proper opportunity to defend his case--Inquiry Officer had found civil servant guilty, thus, he was reverted to the post of Sub-Inspector---Civil servant had shown lethargy and sluggishness, for which he had been rightly punished---Departmental appeal was barred by time---Impugned judgment was well-reasoned and based on proper appreciation of entire material produced before Tribunal---No misreading or non-reading of material or misconstruction of law was involved---Substantial question of public importance had not been made out---Supreme Court dismissed petition and refused, leave to appeal.
Maqbul Ilahi Malik, Senior Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Petitioner.
Ms. Afshan Ghazanfar, A.A.-G. with Zafar Iqbal, Inspector Legal for Respondents.
Date of hearing: 8th January, 2004.
2004 S C M R 678
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Faqir Muhammad Khokhar, JJ
ABDUL WALI---Appellant
Versus
WAPDA through its Chairman and others---Respondents
Civil Appeal No.831 of 2002, decided on 23rd January, 2004.
(On appeal from judgment dated 10-12-2001 of the Federal Service Tribunal, passed in Appeal No.285(P)/C.S of 2000).
(a) Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978---
----S. 4(1)(b)---Civil Service Regulations (S.R.O. (II)/80), Art.471-A---Pakistan Water and Power Development Authority Employees Pension Rules, 1977, R.7(2)---Service Tribunals Act (LXX of 1973), S.4--Constitution of Pakistan (1973), Art.212(3)---Fresh initiation of disciplinary proceedings for imposing penalty on employee after his retirement from service on attaining age of superannuation---Penalty of compulsory retirement from service earlier imposed on employee was set aside by Service Tribunal with the observations that authority would be at liberty to proceed against him in accordance with law---Authority after retirement of employee from service on attaining age of superannuation issued him charge-sheet stating that if allegations were established, then he would be liable to one or more major or minor penalties as mentioned in R.4 of Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978---Validity---None of such penalties could be imposed through an administrative order with retrospective effect---Article 471-A of Civil Service Regulations and Pakistan Water and Power Development Authority Employees (Efficiencyand Discipline) Rules, 1978, provide that employee of WAPDA could not be proceeded against after retirement from service--Supreme Court accepted appeal and set aside impugned judgment to the extent of granting permission to authority to take fresh disciplinary proceedings against employee.
(b) Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978---
----R.4---Initiation of disciplinary proceedings against civil servant after retirement from service---Validity---Disciplinary proceedings could not be taken against civil servant for imposition of major or minor penalty as contemplated in Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978 after he had already retired from service on attaining age of superannuation.
(c) Civil service---
---- Constitution of Pakistan (1973), Art.212(3)---Retired civil servant--Taking action against retired civil servant for withholding or otherwise of pensionary benefits or recovery therefrom, question of---Supreme Court would examine such question in some appropriate case.
Qazi Muhammad Anwar, Senior Advocate Supreme Court for Appellant.
Muhammad Munir Paracha, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Respondents.
Date of hearing: 23rd January, 2004.
2004 S C M R 683
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Faqir Muhammad Khokhar, JJ
NATIONAL GENERAL INSURANCE COMPANY LTD. through General-Manager---Petitioner
Versus
PRESIDING OFFICER, PUNJAB LABOUR COURT No.6, RAWALPINDI and others---Respondents
Civil Petition No.3002 of 2003, decided on 28th January, 2004.
(On appeal from the order dated 9-10-2003 of the Lahore High Court, Rawalpindi Bench, passed in Writ Petition No. 1225 of 2003).
(a) Payment of Wages Act (IV of 1936)---
----Ss. 1(4) (as amended by Labour Laws (Amendment) Ordinance (LIII of 2001) w.e.f. 1-7-2001) & 15(2)---Gratuity amount for year 1989 claimed in yeas 2002 by employee of Insurance Company (a commercial establishment)---Validity---Operation of Payment of Wages Act, 1936 initially applicable to employees of factory or railway administration had been extended by virtue of Labour Laws (Amendment) Ordinance, 2001 to employees of industrial or commercial establishment w.e.f. 1-7-2001---Payment of Wages Act, 1936 was a social, beneficial and remedial statute in nature, object of which was to regulate payment of wages to certain class of persons employed in factory, railways, industrial or commercial establishment---Purpose of such amendment was to provide remedy to persons employed in industrial or commercial establishment---Benefit of such amended provisions would not be restricted only to employees appointed or employed on or after 1-7-2001, but earlier employees would also be governed by Payment of Wages Act, 1936---Employer-company was, amenable to provisions of Payment of Wages Act, 1936, when employee had made application.
Ex-Lt. Col. Anwar Aziz (PA-7122) v. Federation of Pakistan and 2 others PLD 2001 SC 549 ref.
(b) Jurisdiction---
----Determinate of---Jurisdiction of a Tribunal is determinable at the commencement of proceedings, unless contrary intention is expressed or implied in relevant statute.
Settlement and Rehabilitation Commissioner, Hyderabad Division, Karachi and another v. Mannu Khan and 3 others 1973 SCMR 62 rel.
Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court for Petitioner.
Nemo for Respondents.
Date of hearing: 28th January, 2004.
2004 S C M R 686
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Faqir Muhammad Khokhar, JJ
Dr. OMAR ALI KHAN---Appellant
Versus
Dr. KHALID ATAULLAH MUFTI and others---Respondents
Civil Appeal No.29 of 2003, decided on 21st January, 2004.
(On appeal from judgment dated 13-8-2002 of the N.-W.F.P. Service Tribunal, Peshawar, passed in Appeal No. 174 of 1989).
North-West Frontier Province Service Tribunals Act (I of 1974)---
----S. 4---Civil Procedure Code (V of 1908), Ss. 12(2) & 151--Constitution of Pakistan (1973), Art.212(3)---Seniority---Recall of earlier order by Service Tribunal affecting seniority of non-party to appeal--Tribunal modified its earlier judgment by giving effect to the judgment of Supreme Court dated 12-5-1990 directing the authority to issue revised seniority list by assigning the appellant seniority from such date---Validity---Appellant could not be senior to the respondent, who had been promoted on regular basis earlier on 6-2-1990---Other respondent had been promoted from 8-1-1991, thus, appellant would be placed senior to him---Earlier judgment .of Tribunal had affected rights of both the respondents without impleading or providing them any opportunity of hearing--Tribunal had done substantial justice between parties---Supreme Court dismissed the appeal.
Raja Muhammad Asghar Khan, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Appellant.
Jehanzeb Rahim, Advocate-General, N.-W.F.P. for Respondents Nos.3 to 5.
Samiullah Jan, Advocate Supreme Court for Respondents Nos.1.
Date of hearing: 21st January, 2004.
2004 S C M R 690
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Faqir Muhammad Khokhar, JJ
SALEEM ULLAH KHAN---Petitioner
Versus
FEDERATION OF PAKISTAN through Secretary, Establishment Division, Islamabad and others---Respondents
Civil Petition No.41 of 2004, decided on 26th January, 2004.
(On appeal from the judgment dated 8-1-2004 of the Federal Service Tribunal, Islamabad, passed in Appeal No. 1439(R)/CS of 2003).
Civil Servants Act (LXXI of 1973)---
----S. 10---Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985---Constitution of Pakistan (1973), Art. 212(3)---Transfer and posting of civil servant as Officer on Special Duty (O.S.D.)---Service Tribunal dismissed appeal of civil servant---Contention of civil servant was that his transfer as O.S.D. for indefinite period was harmful for his future career; that he wanted to work to justify his drawing of salary and allowances; that many senior officers posted as O.S.D. were awaiting their further posting since long; and he ought to have been posted against a cadre post in terms of R.9(1) of Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985---Validity---Posting of senior officers as O.S.D. for interminable period without assigning to them responsibilities was a pathetic state of affairs---Federal Government must properly address such issue---Supreme Court dismissed petition and refused leave to appeal with directions to Government to forthwith review cases of all such officers in order to consider suitability for their further postings and also to evolve a policy for periodic review of such cases.
Syed Niaz Hussain Shah Bukhari, Technicia (Process) v. Oil and Gas Development Corporation Limited, Islamabad 2003 SCMR 228 and Syed Ajmal Hussain Bokhari v. Commissioner, Rawalpindi 1997 PLC (C.S.) 754 ref.
Petitioner in person.
Makhdoom Ali Khan, Attorney-General for Pakistan with Aslam Sanjrani, Additional Secretary, Establishment Division and Hafiz S.A. Rehman, D.A.-G. for Respondents.
Date of hearing: 26th January, 2004.
2004 S C M R 693
[Supreme Court of Pakistan]
Present: Hamid Ali Mirza, Abdul Hameed Dogar and Faqir Muhammad Khokhar, JJ
HABIB BANK LIMITED and others---Petitioners
Versus
MAHMOOD ALI KHAN and others---Respondents
Civil Petitions for Leave to Appeal Nos. 1583 to 1585, 1956, 1957 and 1990 of 2003, decided on 27th October, 2003.
(On appeal from the judgment dated 17-7-2003 in Appeals Nos.93(R)CE, 103(R)CE and 104(R)CE of ?003 passed by the Federal Service Tribunal, Islamabad).
Removal from Service (Special Powers) Ordinance (XVII of 2000)---
----Ss. 3, 4, 7, 8, 9 & 10---Constitution of Pakistan (1973), Art.212(3)--Charge of misconduct---Dismissal/removal/termination of services of Bank employees after issuing them charge-sheet and holding inquiry--Service Tribunal set aside penalty and ordered reinstatement of employees in service with direction to Bank to hold fresh proceedings against them under Removal from Service (Special Powers) Ordinance, 2000---Supreme Court granted leave to appeal to examine as to whether Service Tribunal had failed to appreciate that there was no requirement under principle of natural justice that person who was given charge-sheet/statement of allegations, full opportunity of hearing in domestic enquiry and thereafter issued show-cause notice, would also be entitled to personal hearing before finally deciding matter under Removal from Service (Special Powers) Ordinance, 2000; whether Service Tribunal had erred in law by ordering reinstatement and holding de novo enquiry proceedings, when commission of acts of misconduct stood proved; whether orders of dismissal/removal/termination and prior to its suspension, charge-sheet, show-cause notice and proceedings before Enquiry Committee had been done and passed by incompetent authority and whether employees had not been given reasonable opportunity of hearing before final order of dismissal/removal/termination---Supreme Court directed the Bank to reinstate employees in the meanwhile in terms of impugned judgment.
Dawood Cotton Mills Ltd. v. Guftar Shah and others PLD 1981 SC 225; Sarfraz v. General Manager (Leaf) Pakistan Tobacco Company Ltd. and others 1988 SCMR 1352; Maqbool Elahi v. Province of Punjab and others 1997 PLC (C.S) 1146; WAPDA through Chairman v. Zulfiqar Ali 2002 PLC (C.S.) 128; Abdul Aziz Khan v. The Postmaster General, Southern Punjab 2000 PSC 1248 and Abdul Hafeez Abbasi and others v. Managing Director; Pakistan International Airlines Corporation and others 2002 SCMR 1034 ref.
Shahid, Anwar Bajwa, Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Petitioners in Civil Petitions Nos. 1583 to 1585 of 2003.
Amir Alam Khan, Senior Advocate Supreme Court for Petitioners in Civil Petitions Nos. 1956 and 1957 of 2003.
Amir Alam Khan, Senior Advocate Supreme Court for Respondent in Civil Petition No. 1583 of 2003.
Ch. Ghulam Qadir, Advocate Supreme Court for Respondents in Civil Petitions Nos.1584 and 1585 of 2003 and for Petitioner in Civil Petition No. 1990 of 2003.
Nemo for Respondents in other Civil Petitions.
Date of hearing: 27th October, 2003.
2004 S C M R 696
[Supreme Court of Pakistan]
Present: Javed Iqbal and Karamat Nazir Bhandari, JJ
MUHAMMAD SHAUKAT HAYAT and 4 others---Petitioners
Versus
Hakeem MUHAMMAD ASHRAF and 2 others---Respondents
Civil Petitions Nos. 1119-L and 1200-L of 2003, decided on 4th June, 2003.
(On appeal from the judgment dated 18-4-2003 of the Lahore High Court, Multan Bench, Multan, passed in Writ Petitions Nos.25-R and 36-R of 1999).
Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)---
----S. 10 & Sched. Para. 1, First Proviso---Constitution of Pakistan (1973), Art. 185(3)---Evacuee property being indivisible---Major portion of property was in possession of claimant, while its minor portion was in possession of non-claimant---Transfer of entire property to its claimant---Plea of non-claimant was that claimant as transferee of other property was not entitled to such transfer---Validity---Such plea could not be considered as same had been raised for the first time and had not been raised in earlier round of litigation---Claimant in possession would be preferred over non-claimant or local in possession in view of First Proviso to Para. 1 of Schedule of Displaced Persons (Compensation and Rehabilitation) Act, 1958---Property being indivisible had been rightly transferred to claimant---Supreme Court dismissed petition and refused leave to appeal.
Mst. Shah Jahan Begum v. Mst. Shabbir Fatima and another PLD 1991 SC 614 ref.
Barkat Ali v. Muhammad Sharif and another PLD 1966 SC 817 rel.
Ghulam Mehmood Qureshi, Advocate Supreme Court with Mehmood-ul-Islam, Advocate-on-Record for Petitioners.
A.R. Shaukat, Senior Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for Respondents.
Date of hearing: 4th June, 2003.
2004 S C M R 699
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
FATEH MUHAMMAD and others---Petitioners
Versus
ADDITIONAL DISTRICT JUDGE and others---Respondents
Civil Petitions for Leave to Appeal Nos. 1524-L, and 1525-L of 2000, decided on 14th May, 2003.
(On appeal from the judgment of the Lahore High Court, Multan Bench, Multan, dated 26-4-2000 passed in Writ Petitions Nos.5113 and 5114 of 1998).
Civil Procedure Code (V of 1908)---
----S. 12(2) & O.IX, R.13---Applications for setting aside two ex parte decrees---Plea of applicants-defendants was that one of them was minor at the time of filing of both suits against them and at the time of passing of ex parte decrees---Trial Court in one suit disbelieved the School Certificate of such applicant and found him not to be minor, while in other suit found him to be minor for his representation in Court and appointed Reader of Court as his guardian for his representation in the Court---Appellate Court and High Court upheld such findings--Validity---Appellate Court and High Court had not properly appreciated such contradictory findings of the Trial Court---Supreme Court accepted
appeals, set aside impugned judgments/decrees and remanded matters to Trial Court for a fresh decision.
Muhammad Hussain v. Muhammad Nawaz PLC 1969 Jour. 111 ref.
S.M. Rashid, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.
Sarfraz Hussain, Advocate Supreme Court with A.H. Masood, Advocate-on-Record for Respondents.
Date of hearing: 14th May, 2003.
2004 S C M R 702
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
MUHAMMAD SADIQ---Petitioner
Versus
MUHAMMAD BOOTA---Respondent
Civil Petition for Leave to Appeal No.786-L of 2002, decided on 19th March, 2003.
(On appeal from the judgment dated 10-1-2002 of the Lahore High Court, Lahore, passed in Civil Revision No.534/D of 1992).
(a) Specific Relief Act (I of 1877)---
----S. 8---West Pakistan Urban Rent Restriction Ordinance (VI of 1959), S.13---Constitution of Pakistan (1973), Art.185(3)---Suit for possession---Plaintiff filed suit, when Appellate Court in appeal against ejectment order found defendant to be unauthorized occupant of property and not tenant under the plaintiff---Courts below concurrently decreed such suit---Defendant claimed to have purchased property through oral agreement---Validity---Defendant had never filed suit for specific performance on the basis of alleged oral agreement---Defendant had paid rent to plaintiff for certain period, but had stopped the same later on--Appellate Court in, such proceedings had found the defendant as unauthorized occupant---Defendant had claimed to be owner of property and had also taken up plea of adverse possession---Both such pleas were contradictory---Courts below had determined such questions of fact after evaluating entire record, which had been maintained by High Court---Supreme Court dismissed petition and refused leave to appeal.
(b) Adverse possession---
----Plea of adverse possession and claiming to be owner of disputed property---Validity---Both such pleas were contradictory.
Agha Taj Muhammad, Advocate Supreme Court for Petitioner.
Nemo for Respondent.
Date of hearing: 19th March, 2003.
2004 S C M R 704
[Supreme Court of Pakistan]
Present: Khalil-ur-Rehman Ramday and Karamat Nazir Bhandari, JJ
MUHAMMAD RAFIQ and others---Petitioners
Versus
MUHAMMAD ALI and others---Respondents
Civil Petition for Leave to Appeal No.1660-L of 2001, decided on 5th May, 2003.
(On appeal from the judgment dated 12-3-2001 passed by the Lahore High Court, Lahore, in Civil Revision No.243 of 2001).
(a) Specific Relief Act (I of 1877)---
----S. 42---Qanun-e-Shahadat (10 of 1984), Arts.31 & 113---Civil Procedure Code (V of 1908), O.XIV, R.1(6) & O.XV, R.1--Constitution of Pakistan (1973), Art.185(3)---Suit for declaration--Plaintiff as daughter of deceased claimed her share of inheritance--Pedigree-table of deceased drawn in plaint showing plaintiff and defendants as his legal heirs was admitted by defendants as correct through written statement---Trial Court dismissed suit on the ground that plaintiff had failed to prove her claim---Appellate Court set aside such decree, which was upheld by High Court in revision---Validity---Trial Court had completely ignored such judicial admission through written statement---No issue was required to be struck in view of such judicial admission---No further proof of such question was required from plaintiff---Defendants' witness had deposed that plaintiff was entitled to share in suit-land---Inheritance of widow of deceased by plaintiff to the extent of her share was a further factor to prove that plaintiff was daughter of deceased and had been wrongly kept out of his inheritance--Plaintiff had become co-sharer in suit-land alongwith defendants, thus, question of limitation running against her would not arise--Supreme Court dismissed petition and refused leave to appeal.
(b) Civil Procedure Code (V of 1908)---
----O. VIII, R.2---Plea not raised in written statement---Effect---Defendant could not be allowed to set up a plea, which had never been pleaded through written statement.
(c) Co-sharer---
----Suit against---Limitation---Plaintiff became co-sharer in suit-land alongwith defendants---Question of limitation running against such plaintiff would not arise. Limitation Act (IX of 1908), S.3.
Tanvir Ahmad, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 5th May, 2003.
2004 S C M R 707
(Supreme Court of Pakistan)
Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
RASHEED AHMAD---Petitioner
Versus
PROVINCE OF PUNJAB through District Collector, Vehari and another---Respondents
Civil Petition for Leave to Appeal No.947-L of 2000, decided on 5th March, 2003.
(On appeal from the judgment dated 21-2-2000 of the Lahore High Court, Multan Bench, Multan, passed in Civil Revision No.585 of 1984).
(a) Civil Procedure Code (V of 1908)---
----O. XLI, R.1---Constitution of Pakistan (1973), Art. 185(3)---Certified copies of judgment and decree of Trial Court not filed alongwith memo. of appeal, but filed subsequently---Dismissal of appeal as being incompetent---High Court in revision remanded case to Appellate Court for its decision on merits---Plea of petitioner was that same should have been filed alongwith memo. of appeal---Validity---Office had not pointed out such deficiency to respondent who had filed certified copy of judgment of Trial Court after obtaining same---Such plea in circumstances was, thus, not apt--High Court had exercised discretion to advance cause of justice---Supreme Court dismissed petition and refused leave to appeal.
(b) Administration of justice----
----Cases should be decided on merits and technical knock-out should sparingly be, resorted to.
Hassan Ahmad Khan Kanwar, Advocate Supreme Court for Petitioner.
Nemo for Respondents.
Date of hearing: 5th March, 2003.
2004 S C M R 709
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, C.J. and Karamat Nazir Bhandari, J
SHAMRAIZ---Petitioner
Versus
THE STATE and another---Respondents
Criminal Petition No. 186-L of 2002, decided on 4th December, 2002.
(On appeal from the judgment dated 12-2-2002 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No.6790/C/B of 2001).
Criminal Procedure Code (V of 1898)---
----S.497(5)---Penal Code (XLV of 1860), Ss.302, 109, 148 & 149--Constitution of Pakistan (1973), Art. l85(3)---Cancellation of bail--Accused, apart from having been charged under Ss.302/109, 148 & 149, P.P.C., was involved in. a number of cases including a case under S.13/20/65 of the West Pakistan Arms Ordinance, 1965---Accused was specifically attributed the firing of shots with Kalashnikov on the vital parts of both the deceased---Discretion exercised by the High Court in cancelling the bail of the accused was in consonance with law and principles governing the matter---Petition for leave to appeal was dismissed.
Aftab Iqbal Chaudhree, Advocate Supreme Court with Muhammad Aslam, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 4th December, 2002.
2004 S C M R 711
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Faqir Muhammad Khokhar, JJ
FAKHAR-UD-DIN---Petitioner
Versus
Mst. MANSAB BIBI and another---Respondents
Civil Petitions Nos.2287 and 2288-L of 2002, decided on 9th July, 2002.
(On appeal from the judgment dated 26-4-2002 passed by the Lahore High Court, Multan Bench, Multan in Second Appeal from Order No.23 of 2001).
West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---
----S. 13---Qanun-e-Shahadat (10 of 1984), Art. 84---Constitution of Pakistan (1973), Art.185(3)---Relationship of landlord and tenant--Proof---Tenant denied such relationship and alleged rent deed to be a forged document---Rent Controller allowed ejectment petition, which judgment was upheld by First and Second Appellate Courts---Validity--Rent deed had been duly proved by producing its scribe and marginal witnesses, whose statements were found to be unimpeachable, coherent and confidence-inspiring-- Landlord had discharged onus of issue regarding relationship of landlord and tenant between the parties---Tenant had not made any request before Rent Controller for comparison of his thumb-impression by an expert---Findings of fact recorded by High .Court did not suffer from any legal infirmity--Supreme Court dismissed petition and refused to grant leave to appeal.
Chaudhry Inayat Ullah, Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 9th July, 2002.
2004 S C M R 713
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui and Muhammad Nawaz Abbasi, JJ
ALI KHAN---Petitioner
Versus
MAGISTRATE SECTION 30, TALAGANG and 12 others--- Respondents
Civil Petition No. 1487 of 2001, decided on 9th April, 2002.
(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, dated 18-4-2001 passed in Writ Petition No.2317 of 2000).
Criminal Procedure Code (V of 1898)---
----Ss. 173, 190(3) & 200---Penal Code (XLV of 1860), S.302--Constitution of Pakistan (1973), Art.185(3)---Cross-version in murder case---Non-availing of the remedy of private complaint---Effect--Respondents already challaned in the light of cross-version in murder case were discharged by Magistrate on the ground that they were found to be innocent by police in fresh investigation---Petitioners instead of availing alternate remedy of filing private complaint challenged discharge order through Constitutional petition---Trial in murder case against petitioners stood concluded during intervening period---High Court refused to interfere in the matter at such belated stage as the same would be a futile exercise---Validity---High Court had rightly declined to interfere in the matter---Such refusal of High Court would not cause any prejudice to petitioners in appeal, which would be decided on basis of its own facts and merits---Supreme Court dismissed petition and refused leave.
Ch. Afrasiyab Khan, Advocate Supreme Court with Anwar H. Mir, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 9th April, 2002.
2004 S C M R 716
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan, Khalil-ur-Rehman Ramday and Falak Sher, JJ
ZAFAR IQBAL alias BABU---Petitioner
Versus
THE STATE---Respondent
Criminal Petition for Leave to Appeal No.217-L of 2002, decided on 9th December, 2002.
(On appeal from the judgment dated 20-2-2002 passed in Criminal Appeal No.201 of 1999 by the Lahore High Court, Lahore).
Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c)---Criminal Procedure Code (V of 1898), S.367(2)--Constitution of Pakistan (1973), Art. 185(3)--Contention of the petitioner was that the Trial Court while convicting the accused had not rendered the judgment in accordance with the provisions of S.367(2), Cr.P.C. and the non-mentioning of the relevant statute under which the conviction was ordered had rendered the whole exercise illegal and void--Validity---Such was purely a technical objection as the accused was aware at the time of trial that charge under S.9(c) of the Control of Narcotic Substances Act, 1997 had been framed against him---Such omission of non-mentioning of the section in the judgment had not at all prejudiced the case of the accused---Petition for leave to appeal was dismissed by the Supreme Court.
M. Asghar Khan Rokhari, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.
Nemo for Respondent.
Date of hearing: 9th December, 2002.
2004 S C M R 718
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan, Khalil-ur-Rehman Ramday and Falak Sher, JJ
MUHAMMAD IQBAL---Petitioner
Versus
THE STATE---Respondent
Criminal Petition for Leave to Appeal No.498-L of 2002, decided on 9th December, 2002.
(On appeal from the judgment dated 8-5-2002 of the Lahore High Court, Lahore, passed in Criminal Revision No. 389 of 2002).
Penal Code (XLV of 1860)---
----Ss.337-A(i)/337-F(i)/337-F(ii)/337-L(2)/34---Constitution of Pakistan (1973), Art. 185(3)---Both the injured witnesses had consistently narrated the occurrence in its material particulars which was fully supported by the medical evidence---First Appellate Court after having again evaluated the entire evidence had maintained the conviction and sentence of accused recorded by the trial Magistrate---Said determination was further upheld by the High Court in the revision petition filed by the accused--No illegality or legal infirmity could be pointed out in the judgments of the Courts below warranting interference by Supreme Court---Leave to appeal was declined accordingly.
Muhammad Akbar Cheema, Advocate Supreme Court with Malik Rehmat Khan Awan, Advocate-on-Record for Petitioner.
Nemo for Respondent.
Date of hearing: 9th December, 2002.
2004 S C M R 720
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ
PATHAN KHAN---Petitioner
Versus
MANZOOR AHMAD and another- --Respondents
Criminal Petition No.553-L of 2001, decided on 13th March, 2002.
(On appeal from the judgment dated 18-7-2001 of the Lahore High Court, Behawalpur Bench, Bahawalpur, passed in Murder Reference No. 17 of 1999 and Criminal Appeal No. 115 of 1999/BWP).
Penal Code (XLV of 1860)---
---S. 302(c)---Constitution of Pakistan (1973), Art. 185(3)---Reduction in sentence----Grave and sudden provocation---Prosecution and defence version viewed to juxtaposition suggested that the defence taken by the accused that his action was under "a grave and sudden provocation" had weight---Eye-witnesses had given inconsistent statements; they were not present at the time of occurrence but had reached the place of incident after receiving the information of the occurrence and F.I.R. was lodged with delay and no plausible explanation for the same could be put forth---High Court, after evaluating the evidence of both the sides had rightly concluded that the offence fell under S.302(c), P.P.C. and accordingly reduced the sentence---Petition for leave to appeal against judgment of the High Court was dismissed.
Zafar Iqbal Awan, Advocate Supreme Court with M.A. Qureshi, Advocate-on-Record for Petitioner.
Nemo for Respondent.
Date of hearing: 13th March, 2002.
2004 S C M R 723
[Supreme Court of Pakistan]
Present: Qazi Muhammad Farooq, Syed Deedar Hussain Shah and Muhammad Nawaz Abbasi, JJ
MUHAMMAD SHARIF---Petitioner
Versus
THE STATE---Respondent
Jail Petition No. 14 of 2002, decided on 15th October, 2002.
(On appeal from the judgment of Lahore High Court, Lahore, dated 5-12-2001 passed in Criminal Appeal No.310 of 1997 and Murder Reference No.151 of 1997).
(a) Penal Code (XLV of 1860)---
---Ss. 302(b), 324 & 337-D---Constitution of Pakistan (1973), Art. 185(3)---Occurrence had taken place in broad-daylight---Presence of the complainant and the injured witness on the spot was free from any doubt---Natural eye-witnesses had deposed in a straightforward manner without any material contradiction, discrepancy or improvement in their statements---Accused was nominated in the promptly lodged F.I.R. with the role of causing fire-arm injuries to the deceased as well as to the injured witness---Parties were closely related to each other with no background of any serious enmity between them to suggest even a remote possibility of false implication or substitution of accused--Medical evidence and motive for the occurrence had sufficiently corroborated the ocular account---No mitigating ground was available in favour of accused for lesser punishment---Conviction and sentence of accused were upheld in circumstances and leave to appeal was refused accordingly.
(b) Penal Code (XLV of 1860)---
---Ss.302(b), 324 & 337-D---Appreciation of evidence---Corroboration--Rule of corroboration is not an inflexible rule which must be applied in all cases and in all circumstances, rather it being a rule of abundant caution is invoked in the cases in which direct evidence is not of the standard to satisfy the mind of the Court.
Sardar Muhammad Siddique Khan, Advocate Supreme Court for Petitioner.
Nemo for Respondent.
Date of hearing: 15th October, 2002.
2004 S C M R 729
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Javed Iqbal and Faqir Muhammad Khokhar, JJ
Mst. SHAHNAZ AKHTAR and others---Petitioners
Versus
ZARINA CHUGHTAI and another---Respondents
Civil Petitions Nos.1627 and 1272-L of 2002, decided on 10th June, 2003.
(On appeal from the judgment dated 20-2-2002 of the Lahore High Court, passed in Regular First Appeals Nos.225 and 282 of 1994)
(a) Constitution of Pakistan (1973)---
----Art.185(2)(d)---Filing petition for leave to appeal instead of direct appeal---Validity---Supreme Court instead of dismissing petition summarily on the ground that appeal should have been filed, decided to proceed to hear petition-on merits.
Sardar Abdur Rauf Khan and others v. The Land Acquisition Collector/Deputy Commissioner, Abbottabad and others 1991 SCMR 2164 ref.
(b) Specific Relief Act (I of 1877)---
-----S.12---Contract Act (IX of 1872), S.11---Civil Procedure Code (V of 1908), O. XXXII, Rr. 3 & 4---Constitution of Pakistan (1973), Art. 185(3)---Suit for specific performance of agreement to sell against legal heirs of vendor---Extension in time for payment of sale price was granted by attorney/wife of vendor during his life time---Trial Court decreed suit, which was upheld by Appellate Court---Plea of defendants was that such extension granted would not be binding on minor children of vendor-- Validity---Defendant-widow was natural guardian of her minor children---Agreement of sale having been executed during life time of vendor by defendant-widow as his attorney would be binding on his heirs and enforceable against them---Defendant-widow had been made guardian ad litem in suit, who had defended same in such capacity upto Supreme Court---Extension of time granted by defendant-widow thus could not be said to be against interest of her minor children--Supreme Court dismissed petition and refused leave to appeal.
Abid Hassan Minto, Advocate Supreme Court and Zafar Iqbal Chaudhry, Advocate Supreme Court for Petitioners.
Ozair Chughtai, Advocate-on-Record for Respondents.
Date of hearing: 10th June, 2003.
2004 S C M R 732
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJ
PROVINCE OF SINDH through Advocate-General High Court of Sindh, Karachi---Petitioners
Versus
MUHAMMAD ISSA and others ---Respondents
Civil Petitions Nos.3-K and 71-K of 2001, decided on 1st October, 2003.
(On appeal from the judgment dated 9-10-2003 of High Court of Sindh passed in Civil Petitions Nos.583, 749 and 583 of 1998).
Sindh Local Government Rules, 1964---
----R.19---Sindh Local Government Ordinance (XII of 1979), S.40 & Sched. II, Part-II---Punjab Agricultural Produce Market Act (V of 1939)---Constitution of Pakistan (1973), Art. 185(3)---Constitutional petition---Recovery of Dalali/Nangani Fee in respect of agricultural produce subject to levy of market fee under Punjab Agricultural Produce Market Act, 1939---High Court in Constitutional petition observed that authority could not recover such fee---Plea of authority was that Notification No.88-D of 1966; dated 10-8-1966 challenged earlier in suit and then in revision before High Court, could not be challenged again before High Court through Constitutional petition; that High Court had not considered R.19(1) of Sindh Local Government Rules, 1964 framed under S.40 of Sindh Local Government Ordinance, 1979, Sched. II, Part-II---Plea of respondent was that High Court had not examined impact of Notification No.SO-II(34)/91, dated 26-7-1991 with reference to his case---Supreme Court granted leave to appeal to examine such pleas.
Suleman Habibullah, Additional A.-G. Sindh and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.
R.A. Qureshi, Advocate-on-Record for Respondent (in Civil Petition No. 71-K of 2001).
Miss Wajahat Niaz, Advocate-on-Record Intervenor.
Date of hearing: 1st October, 2001.
2004 S C M R 734
[Supreme Court of Pakistan]
Present: Falak Sher and Karamat Nazir Bhandari, JJ
RANJHA and others---Petitioners
Versus
Mst. ZAHRAI BEGUM and others---Respondents
Civil Petition No.621-L of 2000, decided on 3rd March, 2003.
(On appeal from the judgment dated 2-2-2000 of the Lahore High Court, Multan Bench, Multan passed in Writ Petition N0.7346 of 1979).
(a) Administration of justice----
----Law changed during pendency of proceedings--Effect---Higher forum can take notice of such changed legal position and decide right of parties.
(b) Land Reforms Regulation (M.L.R. 115)---
----Paras 7 & 12---Land Reforms Act (II of 1977), S.6---Constituion of Pakistan (1973), Art. 185(3)---Validity of gift by declarant in favour of legal heirs was upheld by the Authority---Tenant challenged such order in Constitutional petition before the High Court claiming to be entitled to gifted land---High Court dismissed Constitutional petition for absence of locus standi holding that judgment in Qazalbash Waqf's case PLD 1990 SC 99 had rendered such controversy irrelevant ---Validity---Relevant provisions of M.L.R. 115 and Land Reforms Act, 1977 had been declared against Injunctions of Qur'an and Sunnah during pendency of Constitutional petition---High Court was, thus, entitled to take notice of fresh legal position and give effect to the same---Gifted land or its any part at no stage had ever been surrendered or allotted to tenant under M.L.R. 115 or Land Reforms Act, 1977---Tenant was, thus, not aggrieved person to maintain Constitutional petition against such order of the authority---Supreme Court dismissed petition and refused leave to appeal.
Qazalbash Waqf and others v. Chief Land Commissioner, Punjab, Lahore and others PLD 1990 SC 99 rel.
Shamim Abbas Bokhari, Advocate Supreme Court for Petitioners.
Ch. Khursheed Ahmed, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Respondents.
Date of hearing: 3rd March, 2003.
2004 S C M R 737
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
MUHAMMAD HUSSAIN ---Petitioner
Versus
MANZOOR HUSSAIN and others---Respondents
Civil Petition No.2072-L of 2000, decided on 16th May, 2003.
(On appeal from the judgment of the Lahore High Court, Lahore, dated 6-6-2000 passed in Civil Revision No. 1083 of 1997).
Punjab Pre-emption Act (IX of 1991)---
----S.13---Performance of Talbs---Proof---Evidence to such effect should be unimpeachable and confidence-inspiring---Evidence contrary in nature (contradictory evidence) would not inspire-confidence.
Mian Muhammad Bashir, Advocate Supreme Court for petitioner.
Abdul Majid Khan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Respondents.
Date of hearing: 16th May, 2003.
2004 S C M R 738
[Supreme Court of Pakistan]
Present: Falak Sher and Karamat Nazir Bhandari, JJ
AADIL NADEEM RIZVI ---Petitioner
Versus
GOHAR SIDDIQUE and others---Respondents
Civil Petition No. 3811-L of 2002, decided on 6th March, 2003.
(On appeal from the judgment dated 5-11-2002 of the Lahore High Court, Bhawalpur Bench, Bahawalpur passed in S.A.O. No.7 of 2002).
(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959) ---
----S.13---Question of title---Such question is not to be determined by Rent Controller.
(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959) ---
----S.13---Constitution of Pakistan (1973), Art.185(3)---Denial of relationship of landlord and tenant between the parties---Such relationship was found to exist on basis of "Iqrarnama" and money order receipts---Courts below had not accepted tenant's contention that such documents were forged---Supreme Court dismissed petition and refused leave to appeal.
Ch. Naseer Ahmed Bhutta, Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-Record for Petitioner.
Ch. Muhammad Ashraf, Advocate Supreme Court and Muhammad Uzair Chughtai, Advocate-on-Record for Respondents.
Date of hearing: 6th March, 2003.
2004 S C M R 740
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Hamid Ali Mirza, JJ
NASREEN YOUSUF---Petitioner
Versus
Mst. MARYAM and others---Respondents
Civil Petition for Leave to Appeal No. 138-K of 2003, decided on 17th March, 2003.
(On appeal from the order of High Court of Sindh, Karachi Sated 27-2-2003 passed in H.C. Appeal No.314 of 2002).
Specific Relief Act (I of 1877)---
-----Ss.39, 42 & 54---Civil Procedure Code (V of 1908), S.12(2)--Constitution of Pakistan (1973), Art.185(3)---Suit for declaration, cancellation of sale-deed and injunction---Ex parte decree obtained by plaintiff against original owner of suit-land---Applicant (non-party to suit) made application under S.12(2), C.P.C., for setting aside of decree claiming to be owner of suit-land on basis of registered sale-deed executed in his favour by original owner long before institution of suit and alleged deliberate suppression of such fact by plaintiff---Courts below concurrently accepted such application---Validity---Plaintiff would have adequate opportunity to establish her case at trial of suit, which would be decided on its own merits---Impugned judgment did not suffer from illegality or material irregularity warranting interference---No question of-law of public importance had been raised---Supreme Court dismissed petition and refused leave to appeal.
Mir Muhammad Sheikh, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 17th March, 2003.
2004 S C M R 742
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Khan, JJ
SULTAN ALI through Abdul Ghafoor and others---Petitioners
Versus
KHUDA BAKHSH and others---Respondents
Civil Petition for Leave to Appeal No. 1708-L of 2000, decided on 15th April, 2003.
(On appeal from the judgment dated 11-4-2000 of the Lahore High Court, Multan Bench, Multan, passed in Regular Second Appeal No. 189 of 1983).
Punjab Pre-emption Act (IX of 1991)---
---S.5---Court Fees Act (VII of 1870), S.7(v)(vi)---Civil Procedure Code (V of 1908), S.149 & O. VII, R.11(b)(c)---Constitution of Pakistan (1973), Art.185(3)---Pre-emption suit---Court passing no order to make up deficiency in court-fee---Effect---Court-fee of Rs.6 was affixed on the plaint---Plaintiff on being required by Court to file Schedule of Annual Net Profit again affixed court-fee of Rs.1,800, which though being deficient, was accepted without any objection---Trial Court later on rejected plaint under O.VII, R.11, C.P.C., for non-payment of proper court-fee---First Appellate Court allowed plaintiff to pay deficient court-fee of Rs.59 within specified time, which he had complied with--High Court in second appeal upheld order of First Appellate Court--Validity ---Trial Court had not passed order directing plaintiff to make up deficiency of court-fee---Plaintiff in such circumstances could not be made to suffer due to inaction on the part of Trial Court---Impugned judgment not suffering from any illegality or legal infirmity, Supreme Court dismissed petition and refused leave to appeal.
Ch. Muhammad Aslam Sandhu, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 15th April, 2003.
2004 S C M R 744
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Khalil-ur-Rehman Ramday and Falak Sher, JJ
SHAUKAT ALI ---Petitioner
Versus
MANZOOR AHMED and others---Respondents
Criminal Petition No.73-L of 2004, decided on 11th February, 2004.
(On appeal from the judgment/order dated 16-12-2003 passed by Lahore High Court, Lahore in Criminal Appeal No.810 of 1995).
Penal Code (XLV of 1860)---
----S.302/148/149---Constitution of Pakistan (1973), Art. 185(3)---High Court through the impugned judgment had set aside the judgment of Trial Court acquitting the accused and remanded the case to Trial Court for re-writing the judgment---Trial Court had disregarded and disbelieved without any justification material incriminating evidence on record and proceeded to dispose of the case on the basis of surmises and conjectures---Impugned judgment was strictly in accordance with the principles of law---Trial Court's judgment of acquittal being perverse, interference by High Court was warranted in the same---Leave to appeal was declined to accused in circumstances.
Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 ref.
M. A. Zafar, Advocate Supreme Court for Petitioner.
Nemo for Respondents.
Date of hearing: 11th February, 2004.
2004 S C M R 747
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal, Sardar Muhammad Raza Khan and Karamat Nazir Bhandari, JJ
MUHAMMAD ASGHAR---Appellant
Versus
MUZAMMAL KHAN and 2 others---Respondents
Criminal Appeal No.65 of 1997, decided on 4th December, 2003.
(On appeal from the judgment dated 20-8-1996 passed by the Lahore High Court, Lahore in Criminal Appeal No.987 of 1991 and Murder Reference No.550 of 1991).
Penal Code (XLV of 1860)---
----Ss.302 & 304---Constitution of Pakistan (1973), Art.185---Appeal against acquittal by High Court---Deceased himself appeared to have gone to settle the account of his insult in front of the house of the accused whereupon the trouble ensued resulting into his death---Both the parties who were equally armed had entered into a fight---Injuries sustained by the accused party were so superficial as could hardly provide them with any reason to retaliate in such a manner so as to cause the death of -the deceased---Recovery of pistol on the spot from the deceased was not proved---Accused, thus, had exceeded the, right of self-defence---Impugned judgment of High Court acquitting the accused of the charge under S.302, P.P.C. was consequently set aside and accused was convicted according to the then prevailing law under S.304, P.P.C. and sentenced to 10 years' R.I. with fine of Rs.10,000--Accused was further directed to pay a compensation of Rs. 30,000 to the legal heirs of the deceased---Benefit of S. 382-B, Cr.P.C. was, however, given to accused---Appeal was accepted accordingly.
M. A. Zafar, Advocate Supreme Court for Appellant.
Malik Muhammad Imtiaz Mahl, Advocate Supreme Court for Respondent No. 1.
Malik Ainul Haq Awan, Advocate Supreme Court for the State.
Date of hearing: 4th December, 2003.
2004 S C M R 750
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmed, C. J., Munir A. Sheikh and Muhammad Nawaz Abbasi, JJ
MUHAMMAD USMAN ---Appellant
Versus
THE STATE through A.-G., Balochistan---Respondent
Criminal Appeal No. 188 of 1997, decided on 23rd October, 2002.
(On appeal from the judgment of the High Court of Balochistan, Quetta, dated 17-4-1995 passed in Criminal Acquittal Appeal No.84 of 1993).
(a) Penal Code (XLV of 1860)--
-----S.302(c)---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by the Supreme Court to consider inter alia the contentions, that High Court while appreciating the plea of self-defence raised by the accused had erred in holding that the onus of proof on the accused in establishing his plea of self-defence was as heavy as on the prosecution to prove its case against the accused; that High Court had wrongly held that the accused had exceeded his right of self-defence by firing a second shot at the deceased in that the accused could not weigh in golden scales the danger apprehended who fired three shots at him, and that High Court while allowing the acquittal appeal had ignored the principles for interference in such appeal as laid down in the case reported as PLD 1985 SC 11.
Safdar Ali v. The Crown PLD 1953 F.C. 93 and Ghulam Sikandar v. Mamaraiz Khan PLD 1985 SC 11 ref.
(b) Penal Code (XLV of 1860)---
-----S.302(c)---Appraisal of evidence---Deceased, a teenager and a student of Ist year, while carrying friendship with the accused had accompanied him to his residential room without foreseeing the bad intention of the accused and as such there was no occasion for the deceased who was empty-handed to act, in such a manner and make an attempt on the life of the accused in the normal circumstances---Accused in his statement had also not disclosed that why the deceased without a very strong reason and promptitude had suddenly flared up and taken such an extreme step of making an attempt on his life---Deceased in the absence of an abnormal situation would not dare to act in such a manner in the premises of the police station and the attending circumstances had suggested that the deceased while facing an extraordinary situation had fired in his protection at the accused with his service revolver to undo his evil design---Defence version that the accused in retaliation to the act of firing of the deceased at him had snatched the revolver from the deceased and had fired at him, had itself suggested that after the deceased was disarmed, no apprehension of threat to the life of accused at the hands of the deceased had existed and the act of accused of firing at the deceased was not in self-protection---Occurrence no doubt was a sudden one and was not an intentional murder, but the plea of self-defence was not available to the accused---Appeal of accused was dismissed in circumstances and the conviction and sentence awarded to him by High Court were upheld accordingly.
Safdar Ali v. The Crown PLD 1953 F.C. 93 and Ghulam Sikandar v. Mamaraiz Khan PLD 1985 SC 11 ref.
(c) Criminal trial ---
----Self-defence---Right of self-defence is available to a person to prevent an aggression against him and not to an offender who during the course of commission of an offence suffered some damage at the hands of the victim.
Basharatullah, Senior Advocate Supreme Court and Riaz Ahmed, Advocate-on-Record for Appellant.
Salahuddin Mangal, Advocate-General, Balochistan for Respondent.
Raja Muhammad Afsar, Advocate-on-Record for the Complainant.
Date of hearing: 23rd October, 2002.
2004 S C M R 755
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan, Khalil-ur-Rehman Ramday and Falak Sher, JJ
MUHAMMAD RAFIQUE ---Petitioner
Versus
THE STATE and another---Respondents
Criminal Petition No.527-L of 2002, decided on 9th December, 2002.
(On appeal from the judgment dated 9-5-2002 in Criminal Appeal No. 1735 of 2000 passed by Lahore High Court, Lahore.).
Penal Code (XLV of 1860)---
----S.302(b)---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal-- Occurrence had taken place on the first night of the lunar month at 2-00 a.m. near the "Nala" about 24 acres away from the residence of the complainant, as the deceased was taken out in an. injured condition from the same---Eye-witnesses could not advance any plausible reason for their presence at the said place at that time of the night--Record did not show any source of light in which the eye-witnesses could have identified the accused---Eye-witnesses were merely chance witnesses and the account stated by them did not inspire confidence--Prosecution had failed to substantiate the motive---Recovery of "Chhuri" was of no consequence as the same was not stained with human blood--Medical evidence was not in line with the ocular account---Cogent reasons had been given by the High Court for acquitting the accused---Leave to appeal was refused to the complainant in circumstances.
Mian Muhammad Bashir, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 9th December, 2002.
2004 S C M R 757
[Supreme Court of Pakistan]
Present: Rana Bhagwandas, Sardar Muhammad Raza Khan and Khalil-ur-Rehman Ramday , JJ
MUHAMMAD ZAMAN MANGAT---Petitioner
Versus
MUHAMMAD AKHTAR and others---Respondents
Criminal Petition for Leave to Appeal No.67-L of 2002, decided on 11th July, 2002.
(On appeal from the judgment dated 21-11-2001 of the Lahore High Court, Lahore, passed in Criminal Appeal No.1032 of 2000).
Penal Code (XLV of 1860)---
----Ss.302/34 & 324/34---Constitution of Pakistan (1973), Art. 185(3)--Appeal against acquittal---Details of occurrence and even the names of the accused were not available to the Investigating Agency till the writing of the initial case diaries---F.I.R., therefore, seemed to be much more belated than the time mentioned therein which was only to concoct the story after deliberations and procurement of the complainant from his village---Had the eye-witnesses been present on the spot, they, according to the motive, would have been the first target of the assailants and their absence before the Medical Officer also had seriously pointed to their absence from the spot---Defence had been denied the right to confront the prosecution witness with his previous statement under S.161, Cr.P.C. available on record and had it been done so, it would have shattered the veracity of the said witness who according to his own statement had failed to identify the assailants who were only two or three in number---Findings arrived at by High Court regarding acquittal of accused did not call for any interference in circumstances---Leave to appeal was declined to complainant accordingly.
Akram Qureshi, Advocate Supreme Court for Petitioner.
Nemo for Respondents.
Date of hearing: 11th July, 2002.
2004 S C M R 761
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan, Khalil-ur-Rehman Ramday and Falak Sher, JJ
MUHAMMAD ASGHAR NADEEM---Petitioner
Versus
THE STATE ---Respondent
Criminal Petition for Leave to Appeal No.567-L of 2002, decided on 12th December, 2002.
(On appeal from the judgment dated 14-6-2002 of the Lahore High Court, Lahore, passed in Criminal Appeal No.906 of 1998).
Prevention of Corruption Act (II of 1947)---
----S.5(2)---Penal Code (XLV of 1860), S.161---Constitution of Pakistan (1973), Art. 185(3)---Payment of Rs.2,600 by the complainant to the accused prior to the raid and recovery of tainted money amounting to Rs.1,400 from him during the raid was fully established on record by the prosecution witnesses who had no malice or ill-will whatsoever for false implication of accused in the case---Explanation offered by the accused did not inspire any confidence---Accused had already been dealt with leniently by the Courts below---Impugned judgment had no illegality or legal infirmity---Leave to appeal was refused to accused in circumstances.
Zahid Hussain Bokhari, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.
Nemo for Respondent.
Date of hearing: 12th December, 2002.
2004 S C M R 763
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan, Khalil-ur-Rehman Ramday and Falak Sher, JJ
MUHAMMAD JAVED---Petitioner
Versus
THE STATE---Respondent
Criminal Petition for Leave to Appeal No.659-L of 2002, decided on 10th December, 2002.
(On appeal from the judgment dated 9-7-2002 of the Lahore High Court, Lahore, passed in Criminal Appeal No. 155 of 2001).
Penal Code (XLV of 1860)---
----S.302(b)---Constitution of Pakistan (1973), Art. 185(3)---Complainant who had narrated the occurrence in material particulars was fully corroborated by eye-witnesses including a totally independent person who had got no animus whatsoever for false implication of accused in an offence entailing capital punishment---Ocular account was also in line with medical evidence---Impugned judgment was supported by cogent reasons and did not suffer from any illegality or legal infirmity---Leave to appeal was declined to accused in circumstances.
N. A. Butt, Advocate Supreme Court for Petitioner.
Nemo for Respondent.
Date of hearing: 10th December, 2002.
2004 S C M R 766
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
HABIBAN and others---Petitioners
Versus
MUHAMMAD UMAR and another---Respondents
Civil Petition No. 1369-L of 1999, decided on 30th May, 2002.
(On appeal from the judgment/order dated 6-7-1999 passed by Lahore High Court, Lahore in C. R. No. 182 of 1991).
(a) Civil Procedure Code (V of 1908)---
----O. XXXII, R.7---Plaintiff's claim admitted by minor defendants through their father, who was not in their adverse interest in any manner, held, to be valid.
(b) Constitution of Pakistan (1973)---
----Art. 185(3)---Substantial justice done by High Court---Supreme Court would not interfere in such judgment in exercise of jurisdiction under Art. 185(3) of the Constitution.
Hasnat Ahmed, Advocate Supreme Court and C.M Latif, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 30th May, 2002.
2004 S C M R 768
[Supreme Court of Pakistan]
Present: Justice Nazim Hussain Siddiqui, Chairman, Justices Javed Iqbal, Tanvir Ahmed Khan, Dr. Allama Khalid Mehmud and Dr. Rashid Ahmad Jullundhari, Members
MAQBOOL AHMED ‑‑‑Appellant
Versus
THE STATE‑‑‑Respondent
Criminal Petition No.19(S) of 2003 out of Jail Petition No.17(S) of 2002, decided on 10th December, 2003.
(On appeal from the judgment dated 28‑5‑2002 of the Federal Shariat Court passed in Criminal Appeal No.88‑L of 2002).
Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑
‑‑‑‑S. 10(2)‑‑‑Penal Code (XLV of 1860), Ss.468 & 471‑‑‑Appraisal of evidence‑‑‑Accused had committed a very serious crime of enticing a married woman and then claiming to have married her‑‑‑Marriage‑deed produced by the accused before the Federal Shariat Court was not found to be genuine‑‑‑Unfortunate woman was not available and was considered to have been killed‑‑‑Case against accused was well proved‑‑Federal Shariat Court had already taken a lenient view in the matter of sentence‑‑‑Appeal filed by accused was dismissed accordingly.
M. Zaman Bhatti, Advocate Supreme Court for Appellant.
Malik Ainul Haq, Senior Advocate Supreme Court for the State.
Date of hearing: 10th December, 2003.
2004 S C M R 770
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Faqir Muhammad Khokhar, JJ
AAS MUHAMMAD and others‑‑‑Petitioners
Versus
CHAHAT KHAN and others‑‑‑Respondents
Civil Petition No.2136‑L of 1999, decided on 9th July, 2002.
(On appeal from the judgment dated 5‑11‑1999 passed by the Lahore High Court; Lahore in Civil Revision No. 1970‑D of 1986).
Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S. 42‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 59 & 78‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Suit for declaration‑‑‑Provisional Transfer Order was issued in favour of all brothers, but Permanent Transfer Deed was issued exclusively in favour of one brother on basis of surrender deed purportedly executed by other brothers ‑‑‑Plaintiffs brothers challenged PTD and surrender deed in a suit on ground of fraud and forgery which was dismissed by Trial Court and Appellate Court, but was decreed by High Court in revision filed by plaintiffs‑‑‑Validity‑‑Two of the plaintiffs had appeared before Trial Court and denied execution of surrender deed‑‑‑Defendants thereafter were bound to have produced positive evidence to prove due execution of such document‑‑Neither scribe of such document had been produced nor expert opinion had been obtained to prove thumb‑impressions of plaintiffs‑‑‑High Court had rightly reversed judgments and decrees of subordinate Courts‑‑Supreme Court dismissed petition and refused to grant leave to appeal.
S.M. Rashid, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Petitioners.
Jehangir A. Jhoja, Advocate Supreme Court and Syed Abul Aasim Jafri, Advocate‑on‑Record (absent) for Respondents.
Date of hearing: 9th July, 2002.
2004 S C M R 772
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, C.J. and Qazi Muhammad Farooq, J
MUHAMMAD NAWAZ‑‑‑Petitioner
Versus
THE STATE‑‑‑Respondent
Criminal Petition No.699‑L of 2003, decided on 30th October, 2003.
(On appeal from the order dated 17‑9‑2003 of the Lahore High Court in Cr. M. No.4163‑B of 2003).
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.337‑F(i)/337‑A(ii)/337H(ii)/452/148/149‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Bail‑‑Accused was armed with a fire‑arm weapon and he had caused injury to the victim and then kept on firing‑‑‑Neither the evidence at such stage could be appreciated, nor it could be determined as to who was the aggressor‑‑‑Accused was at liberty to move afresh for grant of bail after some evidence was recorded in the case‑‑‑Leave to appeal was refused to accused accordingly.
Malik Saeed Hasan, Senior Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.
Nemo for the State.
Date of hearing: 30th October, 2003.
2004 S C M R 773
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Rana Bhagwandas and Khalil‑ur‑Rehman Ramday, JJ
ABDUL NASIR‑‑‑Petitioner
Versus
ADDITIONAL DISTRICT JUDGE, KHANEWAL and others‑‑‑Respondents
Civil Petition for Leave to Appeal No.3075‑L of 2001, decided on 27th June, 2002.
(On appeal from order of the Lahore High Court Multan Bench Multan dated 9-7-2001 passed in writ Petition No.11593-F of 2000)
(a) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 185(3)‑‑‑Supreme Court Rules, 1980, O.XIII, R.1‑‑‑Petition for leave to appeal was barred by four days ‑‑‑Condonation of delay‑‑‑Reason for delay was that petitioner did not receive letter of his counsel informing him about passing of impugned order‑‑‑Validity‑‑‑Such reason would not constitute sufficient cause for condonation of delay‑‑Petitioner in application for condonation of delay had admitted that his counsel had applied for supply of certified copies of impugned order and other documents for him, but he had approached him late, due to which the delay had been caused‑‑‑Petitioner having admitted his negligence could not be given any benefit‑‑‑Supreme Court dismissed petition as barred by time.
(b) Administration of justice‑‑‑
‑‑‑‑ Party admitting his negligence could not be given any benefit.
Mian Ataur Rehman, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing: 27th June, 2002.
2004 S C M R 775
[Supreme Court of Pakistan]
Present: Javed Iqbal, Tanvir Ahmed Khan and Muhammad Nawaz Abbasi, JJ
AZAD KHAN‑‑‑Petitioner
Versus
YAQOOB and 44 others‑‑‑Respondents
Civil Petition No.3232 of 2001, decided on 8th July, 2002.
(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, dated 10‑9‑2001 passed in C.R. 44‑F of 1991).
West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)‑‑‑
‑‑‑‑S. 10‑‑‑Limitation Act (IX of 1908), Art.148‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Redemption of usufructuary mortgage‑‑Limitation‑‑‑Plaintiff‑mortgagor sought a declaration that mortgage stood redeemed and he was owner in possession of suit‑land‑‑‑Trial Court finding plaintiff not in possession of land dismissed the suit as barred by time‑‑‑Such judgment was upheld by Appellate Court and High Court‑‑Validity‑‑‑Plaintiff explaining about his admission made before Collector to the effect that he was not in possession of land, had contended that in the intervening period, he had obtained possession of land‑‑‑Plaintiff could not satisfy from record that before filing of suit, he was in possession of land and if so what was the nature of his possession‑‑‑High Court, after discussing evidence in detail, had affirmed findings of fact arrived at by two Courts on question of limitation and plaintiff's possession‑‑‑Such findings would not call for any interference‑‑‑Supreme Court dismissed petition and refused leave.
Muhammad Aslam Uns, Advocate Supreme Court and M. Z. Zaidi, Advocate‑on‑Record for Petitioner.
Nemo for Respondents:
Date of hearing: 8th July, 2002.
2004 S C M R 777
[Supreme Court of Pakistan]
Present: Khalil‑ur‑Rehman Ramday, Falak Sher and Karamat Nazir Bhandari, JJ
MUHAMMAD SHAFI‑‑‑Petitioner
Versus
AMANULLAH and 2 others‑‑‑Respondents
Criminal Petition for Leave to Appeal No.245‑L of 2002 decided on 20th May, 2005.
(On appeal from the judgment dated 22‑1‑2002 of the Lahore High Court, Lahore passed in Crl. Appeal No.2069 of 2001).
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 302/34‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Appeal against acquittal of accused‑ ‑‑Concurrent finding of innocence recorded in favour of accused by the Courts below could not be shown to be either perverse or arbitrary‑‑‑Leave to appeal was refused to the complainant by the Supreme Court accordingly.
Muhammad Sharif Butt, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing: 20th May, 2003.
2004 S C M R 779
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Mian Muhammad Ajmal, JJ
AHMED DIN and another‑‑‑Petitioners
Versus
PROVINCE OF PUNJAB and others‑‑‑Respondents
Civil Petition No.2147‑L of 1999, decided on 5th July, 2002.
(On appeal from the judgment of the Lahore High Court, Multan Bench, Multan, dated 18‑10‑1999 passed in Writ Petition No.2777 of 1996).
(a) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑--
‑‑‑‑S. 10‑‑‑Constitution of Pakistan (1973), Arts.185(3) & 199‑‑Islamabad Oustees Scheme‑‑‑Allotment of land to Islamabad affectees‑‑Petitioners though not allottees of any portion of disputed land under any scheme filed Constitutional petition, which was dismissed by High Court‑‑‑Contention of petitioners was that they as trespassers were in possession of land, which they were entitled to retain as Government was legally bound to provide them shelter‑‑‑Validity‑‑‑Same could not be a ground available in law to contest claim of allottees under Islamabad Oustees Scheme‑‑‑Trespasser could not claim any right to maintain Constitutional petition‑‑‑Petitioners should have independently approached Government for providing them shelter and not to challenge allotment made lawfully in favour of respondents as Islamabad affectees under a scheme framed for them‑‑‑Impugned order not suffering from any infirmity, Supreme Court dismissed petition and refused leave.
(b) Colonization of Government Lands (Punjab) Act (V of 1912)‑‑‑
‑‑‑‑S. 10‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Trespasser could not claim any right to maintain Constitutional petition.
Hamid Ali Mirza, Advocate Supreme Court with Muhammad Aslam Chaudhry, Advocate‑on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing: 5th July, 2002.
2004 S C M R 781
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Iftikhar Muhammad Chaudhry and Abdul Hameed Dogar, JJ
ALI BROTHERS and others‑‑‑Petitioners
Versus
Miss NAUSHABA JABEEN‑‑‑Respondent
Civil Miscellaneous Applications Nos. 1261 to 1265 of 2002 in Civil Appeals Nos.634 to 638 of 2000, decided on 24th July, 2002.
Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑S. 12(2)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Decision of appeal on basis of compromise‑‑‑Application under S.12(2), C.P.C., on the ground that other counsel who appeared on behalf of petitioner had no authority from his Advocate‑on‑Record to enter into compromise‑‑Validity‑‑‑Advocate‑on‑Record engaged by petitioner was not present on the date of hearing‑‑‑No affidavit or other statement of Advocate‑on Record was appended with such application to the effect that he never gave authority to other counsel to settle matter through compromise‑‑‑No affidavit of other counsel was filed to the effect that he was expressly debarred by Advocate‑on‑Record from entering into any compromise‑‑Such application had been filed after a period of more than one year, when time granted to petitioner to vacate premises was about to expire‑‑‑One of the tenants/appellants on Court question admitted that other counsel was given traveling expenses for appearance before Supreme Court on the date, when appeal was decided‑‑‑No case was made out for interference in judgment based on compromise‑‑Application under S.12(2), C.P.C., was dismissed as having no merits.
Muhammad Zaman Bhatti, Advocate Supreme Court with Ch. Muhammad Akram, Advocate‑on‑Record for Petitioners (in .C.M.As. Nos. 1261 to 1265 of 2002).
Nemo for Respondent.
Date of hearing: 24th July, 2002.
2004 S C M R 783
[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 & 324‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Leave to appeal was granted to accused to consider the contentions that ocular testimony was in material conflict with medical evidence; that two co accused had been acquitted by High Court by discarding the ocular account on which the accused had been convicted and that the recovery of the gun after the delay of five days, was of no avail to the case of prosecution.
(b) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss. 302 & 324‑‑‑Appraisal of evidence‑‑‑Sentence, reduction in‑‑Deceased and the injured prosecution witness, according to the eyewitnesses, had received injuries by separate shots fired by the accused‑‑Medical evidence had supported the ocular testimony‑‑‑No exception could be taken to the finding of guilt of the accused arrived at by the Trial Court and upheld by the High Court‑‑‑" Ahata" in dispute was in possession of the complainant and no unpleasant incident had taken place before the occurrence and the immediate cause of the incident having remained shrouded in mystery, sentence of death of accused under S.302, P.P.C, was reduced to imprisonment for life‑‑‑Conviction and sentence of accused under S.324, P.P.C. were maintained and both the sentences were directed‑to run concurrently with the benefit of S.382‑B, Cr.P.C.
Sh. Khizar Hayat, Advocate Supreme Court and Abul 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: 21st May, 2002.
2004 S C M R 790
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Tanvir Ahmed Khan, JJ
ABDUL HAMEED and others‑‑‑Petitioners
Versus
SETTLEMENT AUTHORITY and others‑‑‑Respondents
Civil Petition for Leave to Appeal No. 1694‑L of 2002, decided on 3rd July, 2002.
(On appeal from the order of Lahore High Court, Lahore passed on 1‑4‑2002 in Writ Petition No.266‑R of 1995).
Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)‑‑‑--
‑‑‑‑S. 10‑‑‑Non‑submission of forms for allotment of property as refugee from Jammu and Kashmir‑‑‑Effect‑‑‑Petitioner claimed to be in possession of disputed property alongwith respondent since long as refugees‑‑‑Settlement Commissioner allotted property to respondent after finding that he had submitted form for its allotment‑‑‑Petitioner having not submitted any form could not lay claim on such property on any score.
Noor Alain Qureshi, Advocate Supreme Court and M.A. Qureshi, Advocate‑on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing: 3rd July, 2002.
2004 S C M R 791
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry and Faqir Muhammad Khokhar, JJ
AYYUB and others‑‑‑Petitioners
Versus
NOOR AHMED ‑‑‑Respondent
Civil Petition No.910‑L of 1999, decided on 14th May, 2002.
(On appeal from the judgment dated 16‑6‑1999 passed by the Lahore High Court, Multan Bench, Multan in Civil Revision No. 1181‑D of 1996).
Specific Relief Act (I of 1877)‑‑‑--
‑‑‑‑S. 8‑‑‑Civil Procedure Code (V of 1908), O.I, R.9‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Suit for possession‑‑‑Dismissal of suit for non‑joinder of necessary parties‑‑‑Appellate Court set aside such decree‑‑‑Revision filed, by defendants was dismissed by High Court‑‑Validity‑‑‑Dispute rested between plaintiff and one defendant‑‑‑Legal heirs of other defendant had no interest in property in dispute, thus, their non‑joining as party was not fatal to suit filed by plaintiff‑‑‑High Court had not only decided question relating to non‑joinder of necessary parties, but had also decided case on merits after considering evidence on record‑‑‑Impugned judgment being unexceptionable called for no interference‑‑‑Supreme Court dismissed petition and declined leave.
Raja Muhammad Younas, Advocate Supreme Court with Syed Abul Aasim Jafri, Advocate‑on‑Record for Petitioners.
Muhammad Ashraf Wahla, Advocate Supreme Court with M.A. Qureshi, Advocate‑on‑Record for Respondent.
Date of hearing: 14th May, 2002.
2004 S C M R 794
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, CJ. and Qazi Muhammad Farooq, J
SADIQ HUSSAIN ‑‑‑Petitioner
Versus
THE STATE‑‑‑Respondent
Criminal Petition No.604‑L of 2003, decided on 30th October, 2003.
(On appeal from the order dated 11‑7‑2003 of the Lahore High Court in Criminal Appeal No.23 of 2003).
Emigration Ordinance (XVIII of 1979)‑‑‑
‑‑‑‑S. 22(b)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Plea of animosity having not been substantiated at the trial, could not be gone into at such stage‑‑‑Nothing was brought on the record to show that the witnesses appearing against the accused had the motive to falsely implicate him in the case‑‑‑Impugned judgment did not disclose any illegality or irregularity warranting interference by Supreme Court‑‑Leave to appeal was declined to accused accordingly.
Muhammad Sharif Chohan, Advocate Supreme Court for Petitioner.
Nemo for the State.
Date of hearing: 30th October, 2003.
2004 S C M R 795
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, C.J., Sardar Muhammad Raza Khan and Faqir Muhammad Khokhar, JJ
ABDULLAH‑‑‑Petitioner
Versus
NAWAB KHAN‑‑‑Respondent
Civil Petition No. 1595‑L of 1999, decided on 3rd July, 2002.
(On appeal from the judgment dated 23‑6‑1999 of the Lahore High Court in Civil Revision No.2426 of 1985).
Land Reforms Regulation, 1972 (M.L.R. 115)‑‑‑
‑‑‑‑Para.4‑‑‑Civil Procedure Code (V of 1908), S.9‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Dispute as to title‑‑‑Leave to appeal was granted by Supreme Court to consider, whether on question of determination of title, Land Reforms Authorities had jurisdiction to deal with the matter.
Nawab Muhammad Farid Khan v. Muhammad Afzal Khan 1968 SCMR 262 rel.
Malik Noor Muhammad Awan, Advocate Supreme Court and Syed Abul Aasim Jafri, Advocate‑on‑Record for Petitioner.
Nemo for Respondent.
Date of hearing: 3rd July, 2002.
2004 S C M R 796
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Khalil‑ur‑Rehman Ramday and Faqir Muhammad Khokhar, JJ
NOOR AHMED ‑‑‑Petitioner
Versus
THE STATE and another‑‑‑Respondents
Criminal Petition No.724‑L of 2001, decided on 23rd May, 2002.
(On appeal from the judgment/order dated 10‑10‑2001 passed by Lahore High Court, Bahawalpur Bench in Cr. A. 36 of 1997).
(a) Penal Code (XLV of 1860)‑‑‑--
‑‑‑‑S. 302/34‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑High Court had believed the case against the accused on the basis of confessional statement which the accused .had made after the commission of the offence and was duly corroborated from the shot gun recovered at his pointation which matched with the crime empties taken into possession from the place of occurrence‑‑‑Accused, in circumstances, had rightly been convicted by the High Court.
Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97 and Bahadur Khan v. The State PLD 1995 SC 336 rel.
(b) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 302/34‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Appeal against acquittal‑‑‑Allegation against the acquitted accused was that he was also present at the time of occurrence but there was nothing on the record to prove that he had done anything to cause death of the deceased except that he made uncorroborated extra‑judicial confessional statement regarding the occurrence‑‑‑' Trial Court in circumstances, following the principles of the safe administration of justice, had rightly acquitted the accused, which had been upheld by the High Court‑‑‑No case having been made out against the judgment, of the High Court, Supreme Court declined to interfere.
M. Anwar Bhaur, Advocate Supreme Court for Petitioner.
Nemo for Respondents.
Date of hearing: 23rd May, 2002.
2004 S C M R 799
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ
AMIR and others‑‑‑Petitioners
Versus
MEMBER (CONSOLIDATION), BOARD OF REVENUE and others‑‑‑Respondents
Civil Petition No.453‑L of 1999, decided on 29th April, 2002.
(On appeal from the judgment dated 1‑2‑1999 passed by the Lahore High Court, Lahore in Writ Petition No.84‑R of 1996).
Evacuee Property and Displaced Persons (Laws) Repeal Act (XIV of 1975)‑‑‑
‑‑‑‑S. 3‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Sale of resumed land to respondents‑occupants at market price‑‑‑Validity‑‑-Land was resumed from petitioners‑allottees in year 1965‑‑‑Mutation of resumption in favour of State was sanctioned in year 1981‑‑‑Petitioners could not produce documentary evidence to prove their continuous possession over such land for four harvests preceding Kharif, 1973 and thereafter‑‑Petitioners had voluntarily surrendered and abdicated their rights, if any, in such land by executing agreement to sell in favour of respondents‑‑Petitioners had failed to make application within reasonable time for purchase of resumed land‑‑‑Respondents being in possession of such land had rightly been allowed to purchase the same on equitable grounds as well‑‑‑Impugned judgment was fair and just not calling for any interference by Supreme Court‑‑‑Petition for leave to appeal was dismissed.
Qureshi Muhammad Hafeez, Advocate Supreme Court with Syed Abul Aasim Jafri, Advocate‑on‑Record for Petitioners.
Ch. Muhammad Asadullah, Advocate Supreme Court for Respondents Nos.4 and 5.
Date of hearing: 29th April, 2002.
2004 S C M R 802
[Supreme Court of Pakistan]
Present: Javed Iqbal and Tanvir Ahmed Khan, JJ
Mst. AKHTARI BEGUM through Shahid Hussain and others‑‑‑Petitioners
versus
JAVAID SADIQ and others‑‑‑Respondents
Civil Petitions for Leave to Appeal Nos.3309/L, 3310/L and 3311/L of 2001, decided on 23rd May, 2002.
(On appeal from the judgments dated 8‑8‑2001 of the Lahore High Court, Lahore, passed in R.S.A. No.161 of 1987, Civil Revisions Nos. 1556 and 1557 of 1987).
Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑Ss. 8 & 42‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑Suits for possession, declaration and partition‑‑‑Dispute as to extent of area in possession of respective parties on basis of their CH Forms‑‑‑Trial Court decreed suits for possession and declaration, but dismissed suit for partition‑‑‑High Court in appeal and revisions filed by parties dismissed all the three suits‑Validity‑‑Parties in year 1960 had obtained allotment orders of respective portions in their possession ‑‑‑Disputed property had been partitioned with consent of all occupants, who thereafter had raised walls around their units and eversince were living therein‑‑‑Such possession effected through consent of all occupants could not be disturbed after more than four decades‑Such uncalled for litigation going on between parties for forty years must come to an end‑‑‑Supreme Court dismissed petition and refused leave.
M. Ahmad Hasan Khan, Advocate Supreme Court with Faiz‑ur-Rabman, Advocate‑on‑Record for Petitioners.
Amir Alam Khan, Advocate Supreme Court with M.A. Qureshi, Advocate‑on‑Record for Respondents.
Date of hearing: 23rd May, 2002.
2004 S C M R 805
[Supreme Court of Pakistan]
Present: Sardar Muhammad Raza Khan and Faqir Muhammad Khokhar, JJ
Mst. NAUSHABA‑‑‑Petitioner
versus
KHALIL AHMAD RABBANI and another‑‑‑Respondents
Criminal Petition for Leave to Appeal No.229‑L of 1999, decided on 24th June, 2002.
(On appeal from the judgment dated 27‑1‑1999 of the Lahore High Court, Lahore in Criminal Miscellaneous No.760‑M of 1998).
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 476‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑High Court had refused to initiate proceedings against the respondent under S.476, Cr.P.C.‑‑‑Validity‑‑‑Petition against the order of the High Court was barred by 76 days for which no plausible explanation was forthcoming‑‑ Parties some time tend to use the Court in order to satisfy their personal vendetta, which attitude was discouraged by the High Court, in the present case, by refusing to initiate proceedings against the respondent under S.476, Cr.P.C.‑‑‑Once the High Court had exercised its discretion and had refused to take cognizance, it was not befitting, in the circumstances, that the Court be forced to do so as there were other remedies available for the petitioner in law as well.
Parvez I. Mir, Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record for Petitioner.
M.A. Qureshi, Advocate‑on‑Record for Respondent No. l/Caveator.
Date of hearing: 24th June, 2002.
2004 S C M R 807
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ
ABDUL MAJEED through L.Rs.‑‑‑Petitioner
versus
MUHAMMAD BOOTA‑‑‑Respondent
Civil Petition for Leave to Appeal No.677‑L of 1999, decided on 3rd May, 2002.
(On appeal from judgment of Lahore High Court, Lahore dated 26‑2‑1999 passed in Civil Revision No. 1155 of 1998).
Punjab Tenancy Act (XVI of 1887)‑----
‑‑‑‑S. 39‑‑‑Civil Procedure Code (V of 1908), 0.1, Rr.9 & 10(2)‑‑Constitution of Pakistan (1973). Art.185(3)‑‑‑Ejectment of occupancy tenant ‑‑‑Decree_ of Trial Court upheld by Appellate Court was set aside by High Court in revision‑‑‑Contention of plaintiffs was that status of defendant was not better than a trespasser over the land‑‑‑Validity‑‑Major share in property (i.e. 11/12th share) vested in Central Government, which had ‑not been impleaded in the suit‑‑‑Plaintiffs being co‑owners to extent of 11 / 12th share in property might be entitled to protect their right and interest in property, but lacked locus standi to ask for ejectment of defendant, whose possession over the land had been. found to be permissive by competent Court in earlier suit filed by defendant‑‑‑Central Government had not revoked such permission‑‑Central Government or its transferee might lawfully ask for eviction of defendant, but not the plaintiffs‑‑‑Central Government being co‑owner to the extent of 11/12th share was necessary party to suit without which no effectual adjudication of lis between parties was possible‑‑‑No substantial question of law of general importance having been raised in the petition, Supreme Court dismissed petition and declined leave to appeal.
Rasab Khan v. Abdul Ghani PLD 1985 SC (AJ&K) 69 distinguished.
Malik Abdul Wahid, Advocate Supreme Court for Petitioners.
Rana Muhammad Anwar, Advocate Supreme Court for Respondent.
Date of hearing: 3rd May, 2002.
2004 S C M R 810
Present: Iftikhar Muhammad Chaudhry and Khalil-ur‑Rehman Ramday, JJ
ABDUL HAQ‑‑‑Petitioner
versus
MUHAMMAD AMIN alias MANNA and others‑‑‑Respondents
Civil Petition No.704‑L of 1999, decided on 27th May, 2002.
(On appeal from the judgment/order dated 2‑3‑1999 passed by Lahore High Court in Writ Petition No.415 of 1995).
(a) Penal Code (XLV of 1860)‑
‑‑‑‑Ss. 302/452‑‑‑Criminal Procedure Code (V of 1898), S.403‑‑Constitution of Pakistan (1973), Arts‑13 & 185(3)‑‑‑Death sentence altered to life imprisonment by High Court‑‑‑Accused after serving entire period of sentence had been released from custody‑‑‑If now accused was vexed with another sentence for same offence, then same would be unfair, unjust and violative of Art.13 of the Constitution read with S.403, Cr.P.C.‑‑‑Supreme Court dismissed petition and declined leave.
Mst. Razia Begum v. Jehangir and others PLD 1982 SC 302; Mst. Promilla and others v. Safeer Alam and others 2000 SCMR 1166 and Amir Khan and others v. The State and others 2002 SCMR 403 rel.
(b) Constitution of Pakistan (1973)‑---
‑‑‑‑Art. 13‑‑‑Accused once‑having served out substantial legal sentence for an offence could not be awarded another sentence for same offence.
Mst. Razia Begum v. Jehangir and others PLD 1982 SC 302; Mst. Promilla and others v. .Safeer Alam and others 2000 SCMR 1166 and Amir Khan and others v. The State and others 2002 SCMR 403 rel.
S. Zahid Hussain Bokhari, Advocate Supreme Court for Petitioner.
Salma Malik, A.A.‑G. with M.A. Qureshi, Advocate‑on‑Record for the State.
Date of hearing: 27th May, 2002.
2004 S C M R 812
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ
MUHAMMAD ASLAM‑‑‑Petitioner
Versus
FARHAN MEHMOOD and others‑‑‑Respondents
Civil Petition for Leave to Appeal No.307‑L of 2001, decided on 21st April, 2003.
(On appeal from the judgment dated 10‑4‑2001 of the Lahore High Court, Lahore, passed in Criminal Appeal No.169 of 1996 and Murder Reference No. 121 of 1996).
Penal Code (XLV of 1860)‑‑‑--
‑‑‑‑Ss.302/34‑‑‑Conversion of death sentence into life imprisonment‑‑Leave to appeal was granted by Supreme Court to consider as to whether such modification in the sentence was in accord with settled principles governing safe administration of justice as pronounced by Supreme Court.
Asghar Ali, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.
Dr. Shaukat Hussain, Advocate Supreme Court for Respondent No.2.
Najamul Hassan, Advocate Supreme Court for Respondent No. 1.
Mian Abdul Qayyum Anjum, Advocate Supreme Court with Sohail Dar, A.A.‑G., Punjab for the State.
Date of hearing: 21st April, 2003.
2004 S C M R 813
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, C.J. and Qazi Muhammad Farooq, J
MUHAMMAD SHARIF and others‑‑‑Petitioners
Versus
Mst. FATEH BAND and others‑‑‑Respondents
Civil Petition No.2574‑L of 2003, decided on 28th October, 2003.
(On appeal from the judgment dated 16‑9‑2003 passed by Lahore High Court, Multan Bench, Multan in Civil Revision No. 166‑D of 1992).
(a) Transfer of Property Act (IV of 1882)‑‑
‑‑‑‑‑S.52‑‑‑Sale mutation attested during pendency of suit ‑‑‑Validity‑‑Such sale would be hit by doctrine of lis pendens.
(b) Transfer of Property Act (IV of 1882)‑‑
‑‑‑‑‑S.52‑‑‑Sale of property by defendant during pendency of suit‑‑Purchaser pendente lite sought dismissal of suit as being time barred‑‑Validity‑‑‑Such purchaser would have no locus standi to take up cudgels for defendant‑vendor and seek dismissal of suit on ground of limitation.
Ch. Naseer Ahmed Bhutta, Advocate Supreme Court with Mehmood‑ul‑Islam, Advocate‑on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing: 28th October, 2003.
2004 S C M R 816
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ
Ch. NASRULLAH KHAN‑‑‑Petitioner
versus
MEMBER CONSOLIDATION (JUDICIAL‑II), BOARD OF REVENUE and others‑‑‑Respondents
Civil Petition for Leave to Appeal No.3101‑L of 2001, decided on 30th April, 2003.
(On appeal from the order dated 16‑7‑2001 of the Lahore High Court, Lahore, passed in Writ Petition No. 11686 of 2001).
West Pakistan Consolidation of Holdings Ordinance (VI of 1960)‑‑‑
‑‑‑‑S.10‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Consolidation scheme confirmed in revenue hierarchy‑‑‑Validity‑‑‑Determination of revenue authorities in such matters could not be interfered by Supreme Court, unless and until same was perverse.
Falak Sher and others v. Sharif and others 1989 SCMR 1096; Muhammad Khan and 2 others v. Muhammad and 6 others 1989 SCMR 1714 and Allah Rehman and others v. Amtul Qayyum and another 1989 SCMR 1817 rel.
Sh. Naveed Shahryar, Advocate Supreme Court for Petitioner.
A.G. Tariq Ch., Advocate Supreme Court with M.A. Qureshi, Advocate‑on‑Record for Respondent No.6.
Date of hearing: 30th April, 2003.
2004 S C M R 817
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Faqir Muhammad Khokhar, JJ
MUHAMMAD YOUNIS and others‑‑‑Petitioners
versus
ABDUL GHAFFAR and others‑‑‑Respondents
Civil Petition No.3197‑L of 2001, decided on 25th March , 2003.
(On appeal from the judgment dated 11‑9‑2001 of ‑the Lahore High Court, Multan Bench passed in R.S.A. No.6 of 2000).
Displaced Persons (Compensation and Rehabilitation) Act (XXVIB of 1958)‑‑‑
‑‑‑‑Ss.10 & 25‑‑‑Civil Procedure Code (V of 1908), S.9‑‑‑Permanent Transfer Deed, amendment of ‑‑‑Jurisdiction of Civil Court‑‑‑Sister alleged that P.T.D. issued in favour of her brother was in fact in lieu of property left by her father, thus, she claimed share therein through inheritance‑‑‑Sister failed to get P. T. D. amended under Settlement Laws in appeal and revision‑‑‑Suit for declaration seeking same relief was dismissed by Civil Court, which judgment was upheld upto High Court‑‑‑Held, Such orders passed in appeal and revision for not having been challenged further had become final and could not be challenged before Civil Court‑‑‑Sister could not reopen case before Civil Court, jurisdiction of which was barred under Displaced Persons (Compensation and Rehabilitation) Act, 1958‑‑‑Judgments of Courts below did not suffer from any illegality‑‑‑Supreme Court dismissed petition and refused leave to appeal.
Syed Shamim Abbas Bokhari, Advocate Supreme Court for Petitioners.
Nemo for Respondents
Date of hearing: 25th. March, 2003.
2004 S C M R 819
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Faqir Muhammad Khokhar, JJ
AHMED ‑‑‑ Petitioner
versus.
Rana MAHMOOD AHMAD and another‑‑‑Respondents
Civil Petition No.2104‑L of 2001, decided on ‑8th May, 2003.
(On appeal from the judgment of the Lahore High Court, Lahore, dated 14‑2‑2001 passed in C.R. No.331 of 2001).
Constitution of Pakistan (1973)‑‑‑
‑‑‑‑‑Art.185(3)‑‑‑Supreme Court Rules, 1980, O.XIII, R.1‑‑‑Petition for leave to appeal ‑‑‑Condonation of delay‑‑‑Petitioner's plea was that due to serious illness, he could not collect certified copy of impugned order‑‑Validity‑‑‑Not stated in application as to on which date, petitioner fell ill and was advised bed rest‑‑‑Petitioner had collected certified copy three days before the date fixed for its delivery‑‑‑No explanation had been given for filing petition after lapse of one month after obtaining certified copy‑‑‑Reasons given in application were no reasons in the eye of law‑‑Supreme Court dismissed petition as barred by time and refused leave to appeal.
Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing: 8th May; 2003.
2004 S C M R 821
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ
Mst. RAZIA BIBI‑‑‑Petitioner
versus
RIAZ AHMAD and another‑‑‑Respondents
Civil Petition for Leave to Appeal No.733‑L of 1000 converted into appeal and appeal allowed on 8th April, 2002.
(On appeal from the judgment dated 21‑3‑2000 of the Lahore High Court, Bahawalpur Bench, Bahawalpur, passed in Writ Petition No. 1965 of 1999).
Guardians and Wards Act (VIII of 1890)‑‑‑
‑‑‑‑S.25‑‑‑CRnstitution of Pakistan (1973), Art.185(3)‑‑‑Custody of minor‑‑‑Poverty on the part of mother‑‑‑Welfare of minor‑‑‑Failure to provide maintenance by father‑‑‑Relationship between the parents of the minor ended in divorce‑‑‑Father was living in urban area while the mother being illiterate lady was living in a village‑‑‑Guardian Judge handed over custody of minor to the father but Appellate Court reversed the finding of Guardian Judge and handed over the minor to the mother‑‑High Court in exercise of Constitutional jurisdiction restored the order passed by the Guardian Judge for the reason that the father had better facilities‑‑‑Validity‑‑‑Poverty on the part of mother was no ground to disentitle her from the custody of minor‑‑‑Mother had been looking after her minor son since his birth and maintaining him in a good environment thus welfare of the minor was with the mother‑‑‑Father who was obliged under the law to maintain his child, had not provided any maintenance till date‑‑‑Non‑maintenance on the part of father would not automatically disentitle him from the custody of the child but the same would be one of the circumstances for determining the welfare of the minor‑‑‑Father had contracted second marriage and the mother on the contrary had not married again, she was devoting her complete attention towards the upbringing of her minor son‑‑‑Held, it Would be harsh to hand over the custody of the minor to the father leaving him at the mercy of step‑mother in presence of his real mother who was properly maintaining the child‑‑‑Petition for leave to appeal was converted into appeal and the judgment passed by High Court was set aside‑‑‑Appeal was allowed.
Zahid Hussain Khan, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing: 8th April, 2003.
2004 S C M R 824
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJ
AHMED AZEEM‑‑‑Petitioner
versus
PROVINCE OF SINDH through Chief Secretary, Karachi and another‑‑‑ Respondents
Civil Petition No.57‑K of 2002, decided on 28th February, 2002.
(On appeal from the order dated 27‑9‑2001 of the High Court of Sindh at Karachi passed in C.P. No.D‑615 of 2001).
Prospectus of the Medical Colleges in Sindh (1991‑92)‑‑‑
‑‑‑‑Rule, 8‑‑‑Constitution of Pakistan (1973), Arts.185(3) & 199‑‑Admission in medical college‑‑‑Medical college in which the petitioner was admitted was closed down by the Government‑‑‑Students of the defunct medical college were given admissions in other medical colleges in their city of residence on self‑finance basis‑‑‑Similar offer was made to the petitioner but he could not avail the same due to lack of finances‑‑Grievance of the petitioner was that the authorities had given him admission in a medical college away from his home town ‑‑‑Validity‑‑Right of admission was a discretionary right of the Government and it could not be claimed as a vested right‑‑‑Prospectus of Medical Colleges in Sindh (1991‑92) pertained to entire medical colleges of the Province wherein rules and policies for submitting applications/forms and seeking admission in various colleges was prescribed‑‑‑Condition of domicile in a particular district claiming admission in a medical college situated in. that district could not confer the right to get admission in that particular district‑‑‑Admission in medical colleges was open on merits as provided by Rules‑‑‑Petitioner failed to point out any illegality or infirmity in the order passed by the authorities‑‑‑Leave to appeal was refused.
Muzaffarul Haque, Advocate Supreme Court and Faizanul Haq, Advocate‑on‑Record for Petitioner.
Nemo. for Respondents.
Date of hearing: 28th February, 2002.
2004 S C M R 826
[ Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ
SHER MUHAMMAD and others‑‑‑Petitioners
versus
MUHAMMAD KHALID and others‑‑‑Respondents
Civil Petition No. 1290‑L of 1999, decided on 20th June, 2002.
(On appeal from the judgment dated 6‑7‑1999 passed by the Lahore High Court, Lahore in Civil Revision No. 1100 of 1983).
Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S.42‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Declaration of title‑‑‑ Proof ‑‑‑Oral evidence, preferring over documentary evidence‑‑‑ Concurrent findings of facts by the Courts below‑‑‑Plaintiff claimed to be owner in possession of the suit‑land on the basis of adverse possession and disputed the entries in Revenue Record being contrary and incorrect‑‑‑Suit was decreed by the Trial Court but Appellate Court allowed the appeal and the suit was dismissed‑‑‑Judgment and decree passed by the Appellate Court was maintained by High Court in exercise of revisional jurisdiction‑‑‑ Validity‑‑‑Concurrent findings of the two Courts below were based on the documentary evidence available on record‑‑‑Both the Courts had rightly held that oral evidence which was contrary to the documentary evidence could not be given preference over the documentary evidence‑‑‑Only two entries in Revenue Record which were in favour of the plaintiff were removed by the Revenue Authorities‑‑‑Concurrent conclusion reached and the reasons offered by High Court and Lower Appellate Court were neither based on misreading nor non‑reading of evidence‑‑‑Leave to appeal was refused.
Zahid Hussain Khan, Advocate Supreme Court and Syed Abul Aasim Jafari Advocate‑on‑Record for Petitioners.
Abdul Aziz Qureshi, Advocate Supreme Court and Tanvir Ahmed Khan, Advocate‑on‑Record for Respondents.
Date of hearing: 20th June, 2002.
2004 S C M R 828
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ
DEPUTY COLLECTOR, SALES TAX, LAHORE‑‑‑Petitioner
versus
Messrs FLYING BOARD AND PAPER PRODUCTS and others‑‑‑Respondents
Civil Petitions for Leave to Appeal Nos.3786‑L to 3789‑L of 2001, decided on 25th February, 2063.
(On appeal from the judgment 'dated 28‑9‑2001 of the Lahore High Court, Lahore, passed in Writ Petitions Nos.5203, 5204, 5205 and 5206 of 1999).
Sales Tax Ac! (VII of 1990)‑‑‑
‑‑‑‑S.45‑A‑‑‑Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑Central Board of Revenue‑‑‑Jurisdiction‑‑‑Matter pertaining to recovery of sales tax was decided against the respondent and such order was set aside by the Collector (Appeals)‑‑‑Order passed by Collector (Appeals) was set aside by Central Board of Revenue‑‑‑High Court in exercise of Constitutional jurisdiction set aside the order passed by the Board of Revenue‑‑‑Validity‑‑‑Leave to appeal was granted by Supreme Court to consider; whether in the circumstances of the case the Central Board of Revenue was clothed with any authority/power under S.45‑A of Sales Tax Act, 1990, to interfere with the order of Collector (Appeals).
A. Karim Malik, Senior Advocate Supreme Court with Ch. Muhammad Aslam, Advocate‑on‑Record for Petitioner.
Irfan Qadir, Advocate Supreme Court for Respondents.
Date of hearing: 25th February, 2003.
2004SCMR830
[Supreme Court of Pakistan]
Present: Khalil‑ur‑Rehman Ramday and Karamat Nazir Bhandari, JJ
ATTAULLAH alias BILLA and others‑‑‑Petitioners
versus.
MUHAMMAD ILYAS and others‑‑‑Respondents
C.P.L.A. No.3895‑L. of 2002, decided on 7th May, 2003.
(On appeal from the order dated 21‑10‑2002 passed by the Lahore High Court, Lahore in Civil Revision No‑772 of 2002).
Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑S.115‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Revisional jurisdiction‑‑‑ Discretionary relief‑‑‑Abuse of process of law‑‑‑High Court granted status quo order in favour of the petitioner and the same was violated by the petitioner himself‑‑‑High Court set aside the status quo order and the revision was dismissed‑‑‑Validity‑‑‑Relief under S.115 C.P.C. was a discretionary relief in equity‑‑‑Person who misconducted himself vis‑a‑vis the proceedings of a Court or process of law, such person disentitled himself to any assistance from Courts of law‑‑‑When petitioner had abused the status quo order .secured from High Court, no exception could be taken to the order of High Court refusing assistance to the petitioner in exercise of revisional jurisdiction‑‑‑Leave to appeal was refused.
C.M. Latif Rawn, Senior Advocate Supreme‑ Court for Petitioners.
Zahid Hussain Khan, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Respondent. No. 1.
Muhammad Afzal Sindhu, Advocate Supreme Court with M.A. Qureshi, Advocate‑ on‑Record for official Respondents (WAPDA).
Date of hearing: 7th May, 2003.
2004 S C M R 832
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Faqir Muhammad Khokhar JJ
AMIR and others‑‑‑Petitioners
versus
BASHIRAN BIBI and others‑‑‑Respondents
Civil Petition No.719‑L of 2003, decided on 31st March , 2003.
(On appeal from the judgment of the Lahore High Court, Lahore, dated 30‑1‑2003 passed in C. R. No. 1669 of 1994).
Specific Relief Act (I of 1877)
‑‑‑‑S.42‑‑‑Suit for declaration of title‑‑‑Inheritance‑‑‑Plaintiffs as widow and daughter of deceased claimed right of inheritance in his legacy‑‑‑ Defendant denied Nikah of widow with deceased‑‑‑Trial Court dismissed suit‑‑‑Appellate Court accepted appeal by holding that widow having been divorced before death of deceased was not entitled to inherit his property, while his daughter was entitled to inherit to the extent of ½ share‑‑Such findings of fact as affirmed by High Court did not suffer from misreading or non‑reading of any material piece of evidence‑‑‑Supreme Court dismissed petition and refused leave to appeal.
Kh. Ijaz Feroze, Advocate Supreme Court with Ghulam Sabir, Advocate Supreme Court and Muhammad Islam, Advocate‑on‑Record for Petitioners.
Nemo for Respondents. .
2004 S C M R 834
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Falak Sher, JJ
ALLAH DITTA ‑‑‑Petitioner
versus
Haji MURAD ALI‑‑‑Respondent, Civil Petition No.805‑L of 2003, decided on 24th April, 2003.
(On appeal from the judgment dated 17‑2‑2003 passed by the Honourable Lahore High Court, Lahore in Civil. Revision No.1067 of 1999).
Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S.12‑‑‑Suit for specific performance of agreement to sell‑‑‑Dispute as to side from which land had been sold‑‑‑Agreement to sell stood revoked in pursuance of decision of Punchayat‑‑‑Effect‑‑‑If such agreement stood revoked, then there remained no question of any such dispute.
Sh. Naveed Shahryar, Advocate Supreme Court for Petitioner, Nemo for Respondent.
Date of hearing: 24th April, 2003.
2004 S C M R 836
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ
Mian MUHAMMAD AMJAD AMIN ‑‑‑Petitioner
versus
Rana BASHIR AHMAD ‑‑‑Respondent'
Civil Petition for Leave to Appeal No.780‑L of 2003, decided on 3rd April, 2003.
(On appeal from the order dated 7‑1‑2003 of the Lahore High Court, Lahore, passed in R.F.A. No.794 of 2002).
Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O.XXXVII, Rr.2 & 3‑‑‑Limitation Act (IX of 1908), S.5 & Art. 159‑‑‑Suit for recovery of money‑‑‑Leave to defend Suit ‑‑Condonation of delay‑‑‑Defendant was personally served on 20‑3‑2002‑‑Application for leave was filed on 16‑4‑2002‑‑‑Trial Court dismissed application being barred by time and decreed suit after recording ex parte evidence‑‑‑Appellate Court upheld such decree ‑‑‑Validity‑‑Defendant had taken up wavering stances to cover up his belated approach before trial Court‑‑‑Defendant could not substantiate his alleged illness‑‑‑Plea before High Court as to non‑supply of copy of plaint at the time of service of summons had not been agitated earlier‑‑Medical certificate filed for the first time did not support defendant's case as taken up in leave application‑‑‑Defendant had failed to explain his belated approach‑‑‑Supreme Court dismissed petition and refused leave to appeal.
Hakam Qureshi, Advocate Supreme Court with Mahmood A. Qureshi, Advocate‑ on‑Record for Petitioner.
Nemo for Respondent.
Date of hearing: 3rd April, 2003.
2004 S C M R 838
[Supreme Court of Pakistan]
Present: Javed Iqbal, Falak Sher and Karamat Nazir Bhandari, JJ
Syed KHALIL‑UR‑REHMAN CHISHTI‑‑‑Petitioner
versus
ABDUL HAMID KHAN‑‑‑Respondent
Civil Petition No.348.L of 2003, decided on 3rd April, 2003.
(On appeal from the order dated 12‑11‑2002 of the Lahore High Court, Lahore, passed in Civil Revision No.2413 of 2002).
Punjab Pre‑emption Act (IX of 1991)‑‑‑
‑‑‑‑S.5‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art,129 ‑‑‑ Constitution of Pakistan (1973), Art.185(3)‑‑‑Pre‑emption suit‑‑‑Exchange of 79 Kanals of land with that of 16 Kanals‑‑‑ Pre‑emptor alleged such exchange to be a sale‑‑‑Trial Court found such transaction to be exchange and not sale‑‑Such findings were upheld by Appellate Court and affirmed by High Court‑‑‑Validity‑‑‑Evidence led by pre‑emptor in support of such plea was vague and sketchy‑‑‑Authenticity of exchange could neither be doubted nor treated as sale merely on conjectural presumptions that 79 Kanals of land could' not have been exchanged with 16 Kanals of land‑‑Concurrent findings of fact could not be interrupted in absence of any justification‑‑‑Supreme Court dismissed petition and refused leave to appeal.
Iqbal Mahmood Awan, Advocate Supreme Court and Malik Rehman Khan Awan, Advocate‑on‑Record for Petitioner.
Ch. Farrukh Mehmood Sulehri, Advocate Supreme Court and C.M. Latif, Advocate‑on‑Record for Respondent:
Date of hearing: 3rd April, 2003.
2004 S C M R 841
[Supreme Court of Pakistan]
Present: Javed Iqual and Faqir Muhammad Khokhar, JJ
IHSAN BUTT‑‑‑Petitioner
versus
THE STATE‑‑‑Respondent
Criminal Petition No.922‑L of 2002, decided on 8th January, 2003.
(On appeal from the order dated 18‑11‑2002 of the Lahore High Court, Lahore, passed in Criminal Miscellaneous No.7049/B of 2002).
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.324, 148 & 149‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Principle of consistency‑‑‑Record revealed that the accused was armed with "Sota" and no specific injury had been attributed to him‑‑Co‑accused to whom a serious role of infliction of Chhuri blows was assigned had been discharged due to want of incriminating material‑‑Bail had already been granted to the co‑accused who was armed with a pistol‑‑‑Other co ‑accused was also injured during the scuffle and as such being a case of counter‑version the concession of bail could be extended in favour of the accused on the ground of further inquiry under S.497(2), Cr.P.C.‑‑‑Principle of consistency could also be pressed into service as bail had been granted to the co‑accused who was armed with pistol‑‑Besides that it was yet to be determined as to who was the aggressor and thus matter squarely fell within the ambit of further inquiry‑‑‑Supreme Court, in circumstances, converted the petition for leave to appeal into appeal and granted bail to the accused.
Shoaib Mehmood Butt v. Iftikharul Haq 1996 SCMR 1845 and Fazal Hussain v. The State 1976 SCMR 124 ref.
Muhammad Kazim Khan, Advocate Supreme Court with C.M. Latif, Advocate‑ on‑Record for Petitioner.
Aziz Ahmad Chughtai, Advocate Supreme Court for the State. .
Date of hearing: 8th January, 2003.
2004 S C M R 843
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Mian Muhammad Ajmal, JJ
MUHAMMAD ASLAM and others‑‑‑Petitioners
versus
Mst. KUNDAN MAI and others‑‑‑Respondents
Civil Petition No.944‑L of 2002, decided on 4th July, 2002.
(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench, Bahawalpur dated 13‑2‑2002 passed in Writ Petition No. 1600 of 1993/Bwp.).
Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑S. 12(2)‑‑‑Constitution of Pakistan (1973), Art.r85(3)‑‑‑Decree, setting aside of‑‑‑Plea of fraud‑‑‑Scope‑‑‑Decree was sought to be set aside on the ground that no fraud was played on the .Court which passed the decree‑‑‑Validity‑‑‑Not necessary that fraud iri obtaining decree should have been played on the Court which passed the decree but if a decree had been obtained through fraud between the parties inter se by concealment of true facts, the same could also be set aside‑‑‑Appellate Court while passing the order in revision petition ignored the fact that the filing of suit by the respondents would have served no purpose, for., consequence of setting aside of the decree was that the suit in which the same was passed would be deemed to be pending and the question of validity, existence or otherwise of Tamleek Nama was to be decided on merits inter se the parties‑‑‑Order passed by Trial Court in setting aside the decree was unexceptional in law and it had been rightly so held by High Court in its judgment‑‑‑Judgment by Appellate Court was rightly set aside by High Court in exercise of Constitutional jurisdiction‑‑‑Leave to appeal was refused.
Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court for the Petitioners. , Nemo for Respondents
Date of hearing: 4th July, 2002.
2004 S C M R 845
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, Syed Deedar Hussain Shah and Tanvir Ahmed Khan, JJ
KHIZAR HAYAT‑‑‑Appellant
versus
IMTIAZ ALI KHAN and 21others ‑‑‑ Respondents
Criminal Appeal No.81 of 2001, decided on 29th October, 2001
(On appeal from. the judgment dated. 18‑11‑1999 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi, in Criminal Appeal No. 122 of 1996 and Criminal Miscellaneous No.847‑M of 1996).
(a) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 302/34‑‑‑Reappraisal of evidence‑‑‑First Information Report was promptly lodged with specific role attributed therein to the accused persons‑‑‑Occurrence was stated to have taken place at 9‑30 a.m. while the F.I.R. was recorded at 10‑30 a.m. in spite of the fact that distance of Police Station was 18 k.m. from the place of incident‑‑‑High Court had fallen into error in holding that the F.I.R. was recorded after deliberations on the ground that in the inquest report the name of exact weapons were not mentioned although the same were described as firearm weapons and the names of the accused were also not given therein and they were simply termed as Mulzaman‑‑‑Simply because of such omission on the part of investigating agency, it could not be said that the complainant's side got the F.I.R. recorded after complete deliberations.
(b) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 302/34‑‑‑Reappraisal of evidence‑‑‑High Court had discarded the ocular account merely on the ground that the same had been brought on record through inimical witnesses‑‑‑Validity‑‑‑Solitary aspect that longstanding enmity existed between the parties would not be sufficient to discredit the testimony of the eye‑witnesses who were natural witnesses and their presence at the spot could not be doubted in any manner when the defence side, in spite of lengthy cross‑examination, had, failed to shatter their testimony.
(c) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 302/34-‑‑Reappraisal of evidence‑‑‑Prosecution had successfully established the ocular version and recovery of 16 empties of Kalashnikov from the spot‑‑‑Contention that had witnesses been present over there, they too would have been attacked, did not fit in the circumstances of the case in which the accused had jumped down from the car and after committing the murder of the deceased, immediately boarded the same and fled away from the scene of occurrence.
(d) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 302/34,‑‑Reappraisal of evidence‑‑‑Recording of F.I.R. with promptitude, ocular account, motive, medical evidence, recovery of empties of weapon used; the number of injuries suffered by the deceased and failure of the defence to prove the plea of alibi, all being established on record, basing the decision by the High Court on conjectures and surmises was a grave error‑‑‑Supreme Court, in circumstances, set aside the judgment of the High Court.
Sardar MuhamUnad Ishaque, Advocate Supreme Court for Appellant.
Malik Rab Nawaz Noon, Advocate Supreme Court with M.S. Khattak, Advocate‑on‑Record for Respondents Nos. l and 2.
Arshad Ali, Advocate Supreme Court for the State.
Date of hearing: 29th October, 2001.
2004 S C M R 852
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Khalil‑ur‑Rehman Ramday and Faqir Muhammad Khokhar, JJ
NAVEED SADIQ KHAN and another‑‑‑Petitioners
Versus
ELECTION TRIBUNAL and others‑‑‑Respondents
Civil Petition No. 1035‑L of 2002 decided on 5th April, 2002.
(On appeal from the judgment of the Lahore High Court Lahore dated 27‑3‑2002 passed in Writ Petition No.4945 of 2002).
(a) North‑West Frontier Province Local Government Elections Rules, 2000‑‑‑
‑‑‑‑R. 39(4)‑‑‑Recounting of ballot papers‑‑‑Jurisdiction of Returning Officer under R.39(4) of North‑West Frontier Province Local Government Elections Rules, 2000‑‑‑Scope‑‑‑Provision of Rules relates to the duties of Presiding Officer in relation to preparation of results after conclusion of the election and does not relate to Returning Officer.
(b) North‑West Frontier Province Local Government Elections Rules, 2000‑‑
‑‑‑‑R. 40(3)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Valid votes, recounting of‑‑‑Parties contested elections for the seats of Nazim and Naib‑Nazim‑‑‑ Grievance of unsuccessful candidates was that invalid votes were not counted in favour of any of the contesting panels‑‑Election Tribunal accepted plea of recounting of ballot papers and directed recounting of all ballot papers‑‑‑Order passed by Election Tribunal was maintained by High Court in exercise of Constitutional jurisdiction‑‑‑Plea raised by returned candidates was that the valid votes could not be recounted without any evidence in that regard ‑‑‑Validity‑‑No ground was raised in the election petition against count of the valid votes of the parties apart from the fact that no evidence was brought on the record to justify the recounting of the valid votes‑‑‑Both the Election Tribunal and High Court committed illegality in ordering recounting of those ballot paper's which were counted as valid votes in favour of both the parties obligatory under Rule 40(3) of North‑West Frontier Province Local Government Elections Rules, 2000, on the part of Returning Officer, before consolidation and declaration of result, to have examined such votes which were declared invalid by Presiding Officer and were excluded from count to determine whether the decision of the Presiding Officer was legally correct‑‑‑Returning Officer had consolidated result on the basis of entries made by Presiding Officer in the proforma prescribed under the law on which the results of count had been recorded as such the Returning Officer followed whatever had been done by the Presiding Officer thus failed to perform his legal duties‑‑‑Supreme Court set aside the orders of Election Tribunal and High Court to the extent of recount of valid votes and directed the Election Tribunal to re‑examine the ballot papers which were excluded from count on the ground that those were invalid‑‑‑Petition for leave to appeal was converted into appeal and the same was decided accordingly.
Ihsanul Haq Ch. Advocate Supreme Court with Ch. Talib Hussain, Advocate‑on‑Record for Petitioners.
Ch. Muhammad Yaqub Sidhu, Advocate Supreme Court with Syed Abul Aasim Jafri, Advocate‑on‑Record for Respondents Nos. 2 and 3.
Date of hearing: 5th April, 2002.
2004 S C M R 855
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Faqir Muhammad Khokhar, JJ
ZAHID MUNIR‑‑‑Petitioner
Versus
Malik MUHAMMAD ASLAM and another‑‑‑Respondents
Criminal Petition No. 186‑L of 2003, decided on 2nd April, 2003.
(On appeal from the judgment dated 19‑3‑2003 of the Lahore High Court passed in Criminal Miscellaneous Petition No.203/H of 2003).
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 491‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Habeas corpus petition before High Court‑‑‑Accused, who was convicted by the Federal Shariat Court, was on bail during the pendency of the appeal before Federal Shariat Court‑‑‑Accused moved petition for leave to appeal in the Supreme Court against the judgment of the Federal Shariat Court but the Supreme Court office declined to entertain the said petition on the ground that accused should first surrender to the Police Authorities‑‑Supreme Court, however, passed an order for the entertainment of the petition of the accused by relaxing the rules regarding attestation of Wakalatnama by the Jail Authorities of a convict for at that time, he had not been arrested in pursuance of the judgment of the Federal Shariat Court and further observed in the order that the accused may apply for bail after entertainment of the said petition for leave to appeal‑‑‑Petition for leave to appeal by the accused was entertained, registered and had not yet been fixed before the Shariat Appellate Bench of the Supreme Court alongwith the application for suspension of sentence or grant of bail‑‑‑Police had arrested the accused in implementation of the judgment of the Federal Shariat Court against which the accused had moved habeas corpus petition under S.491, Cr.P.C. before the High Court alleging that in view of the order of the Supreme Court dispensing with the rules of attestation of Wakalatnama by the Jail Authorities, his arrest and detention in jail was unlawful and improper‑‑‑High Court dismissed the petition for habeas corpus by the accused‑‑‑Validity‑‑‑High Court had taken a correct view of law‑‑‑Suspension of rule of Supreme Court as regards attestation of Wakalatnama of a convict who at that stage had not been arrested did not operate on its own as prohibition against arrest by law enforcing agency in implementation of the judgment of the Federal Shariat Court, as such, his detention in jail was neither unlawful nor improper‑‑‑Petition for leave to appeal against order of the High Court was dismissed.
Dr. A. Basit, Advocate Supreme Court for Petitioner.
Date of hearing: 2nd April, 2003.
2004 S C M R 858
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Faqir Muhammad Khokhar, JJ
MUHAMMAD WASEEM alias KHUSHI MUHAMMAD ‑‑‑Petitioner
Versus
ALI AHMAD and others‑‑‑Respondents
Civil Petition No.3990‑L of 2001, decided on 12th July, 2002.
(On appeal from the order dated 27‑9‑2001 passed by the Lahore High Court, Lahore in Writ Petition No.21951 of 2000).
West Pakistan Family Courts Act (XXXV of 1964)‑‑‑
‑‑‑‑S.5 & Sched.‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑Maintenance allowance‑‑‑Concurrent findings of fact by the Courts below‑‑‑Source of income‑‑‑Determination‑‑‑Family Court fixed monthly maintenance allowance for two minor children at the rate of Rs.2000 per child‑‑‑Father assailed the allowance but Appellate Court as well as High Court declined to interfere with the judgment and decree passed by Family Court‑‑‑Plea raised by the father of the minors was that the maintenance was fixed without determining his source of income‑‑Validity‑‑‑All the Courts recorded concurrent findings of fact that the father had sufficient means of income and was under obligation to make the payment of maintenance to each of his children at the rate of Rs.2000 per month‑‑‑No substantial question of law of public importance was involved in the case‑‑‑Judgment passed by High Court did not suffer from any infirmity so as to call for interference by Supreme Court‑‑Leave to appeal was refused.
Muhammad Aslam Chaudhry, Advocate‑on‑Record for Petitioner.
Mst. Rukhsana Bibi (mother of respondents Nos.1 to 3) for Respondents.
Date of hearing: 12th July, 2002.
2004 S C M R 860
[Supreme Court of Pakistan]
Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ
WASEEM ULLAH‑‑‑Petitioner
Versus
THE STATE‑‑‑Respondent
Criminal Petition No. 823‑L of 2002, decided on 22nd January, 2003.
(On appeal from the judgment dated 3‑10‑2002 passed by the Lahore High Court, Lahore, in Criminal Miscellaneous No.5235/B of 2002).
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/148/149/109‑‑Cotystitution of Pakistan (1973), Art. 185(3)‑‑‑Bail‑‑‑Occurrence had taken place during the day light and the F.I.R. was promptly lodged‑‑Accused was alleged to have caused fire‑arm injuries on the person of the deceased, who was an advocate, and injured one prosecution witness‑‑‑Motive for the occurrence was stated to be that deceased, being an advocate, was conducting and pursuing the Court cases on behalf of the opposite party of the accused in the discharge of his professional duties‑‑‑High Court, in facts and circumstances of the case was justified in refusing to release the accused on bail in the murder case‑‑‑Petition for leave to appeal was dismissed by the Supreme Court.
Ghulam Haider Alghazali, Advocate Supreme Court for Petitioner.
Hasnat Ahmad, Advocate Supreme Court with Faiz‑ur‑Rehman, Advocate‑on‑Record for Respondent.
Date of hearing: 22nd January, 2003.
2004 S C M R 862
[Supreme Court of Pakistan]
Present: Rana Bhagwandas, Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ
C.P.L.A. No.468‑K of 2002
Pirzada NIAZ AHMED FAROOQI through Legal Representatives‑‑‑Petitioners
Versus
MUHAMMAD BUX and others‑‑‑Respondents
(On appeal from Order of High Court of Sindh, Circuit Court, Hyderabad dated 7‑3‑2002 passed in Civil Petition No.D‑225 of 1993).
C.P.L.A. No.469‑K of 2002
WAHEED AHMED KHAN and others‑‑Petitioners
Versus
MUHAMMAD BUX and others‑‑‑Respondents
(On appeal from Order of High Court of Sindh, Circuit Court, Hyderabad dated 7‑3‑2002 passed in Civil Petition No.D‑607 of 1995).
Civil Petitions for Leave to Appeal Nos.468‑K and 469‑K of 2002, decided on 13th May, 2002.
Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 185(3)‑‑‑Administration of justice‑‑‑Restoration of Constitutional petition dismissed for non‑prosecution‑‑‑Absence of counsel ‑‑‑Effect‑‑Conduct of counsel may be reprehensible, ends of substantial justice demand that the parties should not suffer on account of negligence or indifferent attitude on the part of their counsel, in whom they repose full confidence and it is a matter of mutual trust between a client and counsel‑‑‑Affidavit of delinquent counsel was not submitted before High Court and the same had been filed for the first time explaining reasons for non‑appearance before the Supreme Court‑‑‑Supreme Court in order to ensure that the cause was decided on merits and to do complete justice between the parties, granted leave to appeal, converted the petition into appeal and allowed the same subject to payment of compensatory costs to the respondent.
Abdul Ghafoor Mangi Advocate Supreme Court with Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioners.
K.A. Wahab, Advocate‑on‑Record for Respondents.
Date of hearing: 13th May, 2002.
2004 S C M R 864
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan, Khalil‑ur‑Rehman Ramday and Falak Sher, JJ
YAROO‑‑‑Petitioner
Versus
THE STATE‑‑‑Respondent
Criminal Petition for Leave to Appeal No.347‑L of 2002, decided on 16th December, 2002.
(On appeal from the order dated 15‑4‑2002 of the Lahore High Court Multan Bench, Multan, passed in Criminal Miscellaneous No.643/B of 2002).
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 302/324/148/149‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Bail, grant of‑‑Allegations against the accused were of general nature, no injury, whatsoever to the deceased had been attributed to the accused and accused was in jail for the last more than one year‑‑‑Supreme Court, in view of facts and circumstances of the cases, converted the petition for leave to appeal into appeal and admitted the accused to bail.
Abdul Aziz Khan Niazi, Advocate Supreme Court for Petitioner.
A.H. Masood, Advocate Supreme Court with Niaz Hussain, Sub‑Inspector Police with record for the State.
Date of hearing: 16th December, 2002.
2004 S C M R 866
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Faqir Muhammad Khokhar, JJ
Mian BASHIR AHMAD‑‑‑Petitioner
Versus
Rana MUHAMMAD ASHRAF‑‑‑Respondent
Civil Petitions Nos.2285‑L and 2286-L of 2002, decided on 11th July, 2002.
(On appeal from the judgment dated 29‑4‑2002 of the Lahore High Court, Lahore passed in Civil Miscellaneous No.2C of 2002 in Civil Revisions Nos.876‑877 of 2002).
Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 185(3)‑‑‑Petition for leave to appeal‑‑‑Interlocutory orders, assailing of‑‑‑Scope‑‑‑Civil revision was admitted for regular hearing by High Court and such order was assailed before Supreme Court in its jurisdiction under Art.185(3) of the Constitution‑‑‑Validity‑‑‑Civil revisions filed by the respondent had been admitted to regular hearing and were pending decision before High Court‑‑‑Such order being interlocutory did not call for any interference by Supreme Court under Art.185(3) of the Constitution‑‑‑Leave to appeal was refused.
Rana Abdul Rahim Khan, Advocate Supreme Court with M. Tanvir Ahmad, Advocate‑on‑Record for Petitioner.
Nemo for Respondent.
Date of hearing: 11th July, 2002.
2004 S C M R 868
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ
MUHAMMAD YASIN‑‑‑Petitioner
Versus
S.S.P. and others‑‑‑Respondents
Civil Petition for Leave to Appeal No. 1258‑L of 2002, decided on 30th April, 2002.
(On appeal from the judgment dated 3‑4‑2002 passed by Lahore High Court, Lahore in Writ Petition No.5370 of 2002).
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss. 420/466/468/471/148/149‑‑‑Criminal Procedure Code (V of 1898), S.154‑‑‑Constitution of Pakistan (1973), Arts. 185(3) and 199‑‑Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑Petitioner (one of the accused persons) being a public servant sought quashing of F.I.R. on the ground that only Anti‑Corruption Establishment was competent to register criminal case against him and investigate the same‑‑‑High Court dismissed Constitutional petition‑‑‑Validity‑‑‑Officer‑in‑charge of police station had power under S.154. Cr.P.C., to record F.I.R. on receiving information disclosing commission of cognizable offence‑‑‑Offence under S.420, P.P.C., was at least one such cognizable offence‑‑‑If presumed for sake of arguments that such F.I.R. could be registered only by Anti-Corruption Establishment, even then same was protected by law declared in the case "State v. Bashir and others" PLD 1997 SC 408‑‑‑No exception could be taken to the impugned order‑‑‑Supreme Court dismissed petition and refused leave.
State v. Bashir and others PLD 1997 SC 408 rel.
Syed Nisar Ali Shah, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.
Nemo for Respondent.
Date of hearing: 30th April, 2002.
2004 S C M R 870
[Supreme Court of Pakistan]
Present: Rana Bhagwandas, Sardar Muhammad Raza Khan and Khalil‑ur‑Rehman Ramday, JJ
MUHAMMAD SHARIF through Legal Representatives‑‑‑Petitioners
Versus
MEMBER (COLONIES), BOARD OF REVENUE, PUNJAB and others‑‑‑Respondents
Civil Petition for Leave to Appeal No.2167‑L of 1999, decided on 11th July, 2002.
(On appeal from order of Lahore High Court, Multan Bench, Multan dated 1‑12‑1999 passed in Civil Miscellaneous No.3402 of 1999 in Writ Petition No.954 of 1982).
Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Arts. 199 & 185(3)‑‑‑Constitutional petition dismissed by High Court for non‑appearance of counsel‑‑‑Appointment of counsel as Additional Advocate‑General‑‑‑Constitutional petition was filed against the Provincial Government and due to absence of the counsel, the petition was dismissed‑‑‑Plea raised by the petitioners was that due to the appointment of the counsel as Additional Advocate‑General, he could not appear against the Provincial Government‑‑‑Validity‑‑‑Said appointment did not absolve the counsel from appearing before the High Court and apprise of his disability to appear on behalf of the petitioners and/or to intimate the petitioners through legal notice that he would no longer represent them before the Court of law‑‑‑Both the options available to the counsel were not availed of‑‑‑High Court had rightly non‑suited the petitioners‑‑‑Leave to appeal was refused.
Khadim Nadim Malik, Advocate Supreme Court with Mahmudul Islam, Advocate‑on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing: 11th July, 2002.
2004 S C M R 872
[Supreme Court of Pakistan]
Present: Sardar Muhammad Raza Khan and Faqir Muhammad Khokhar, JJ
MUHAMMAD ASLAM and others‑‑‑Petitioners
Versus
THE STATE and others‑‑‑Respondents
Criminal Petitions Nos. 19 and 20‑L of 2002, decided on 24th June, 2002.
(On appeal from the judgment dated 27‑11‑2001 passed by the Lahore High Court, Lahore in Criminal Appeal No.62 of 1995 and Murder Reference No.83 of 1995).
(a) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss. 302/149 & 148‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑Accused was attributed fatal fire‑arm injury on the chest of the deceased‑‑‑Ocular account given by the eye‑witnesses including an independent witness was supported by medical evidence‑‑‑Mere fact that the crime empties taken from the spot did not match the gun recovered from the accused, by itself, could not be a ground for a lesser penalty‑‑‑No mitigating circumstance was available in favour of accused for reducing his sentence of death‑‑‑Leave to appeal was declined to accused in circumstances.
Abdul Rashid v. The State 1989 SCMR 165 and Khawand Bakhsh and others v. The State and others PLD 2000 SC 1 ref.
(b) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss. 302/149‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Sentence, enhancement of‑‑‑Accused was an old person of more than 70 years of age‑‑‑Accused was alleged in the F.I.R. to have caused an injury on the person of the deceased by using blunt side of the hatchet‑‑‑High Court, in circumstances, was justified in altering the sentence of death of accused into imprisonment for life‑‑‑Accused had also already served out his legal sentence of life imprisonment‑‑‑Leave to appeal was refused to complainant in circumstances.
Asgher Ali, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioners (in Cr. P. No. 19 of 2002).
Nemo for Respondent (in Cr.P. No. 19 of 2002).
Muhammad Ghani, Advocate Supreme Court with Mahmudul Islam, Advocate‑on‑Record for Petitioners (in Cr.P. No.20 of 2002).
Asgher Ali, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Respondents (in Cr.P. No.20 of 2002).
Date of hearing: 24th June, 2002.
2004 S C M R 877
[Supreme Court of Pakistan]
Present: Rana Bhagwandas, Sardar Muhammad Raza Khan and Khalil‑ur‑Rahman Ramday, JJ
Mst. ZAITOON BIBI ‑‑‑Petitioner
Versus
DILAWAR MUHAMMAD through Legal Heirs‑‑‑Respondents
Civil Petition for Leave to Appeals Nos.2157‑L and 2158‑L of 1999, decided on 12th July, 2002.
(On appeal from order of Lahore High Court, Lahore dated 14‑10‑1999 passed in Civil Revision No.1599 of 1999 and Writ Petition No.19306 of 1999).
Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O. XLI, R.31‑‑‑Judgment of Appellate Court‑‑‑Failure to give issue wise findings‑‑‑Concurrent findings of fact by the Courts below‑‑Contention of the petitioner was that Appellate Court‑was under statutory duty to discuss each issue separately and record findings separately discussing evidence thereon‑‑‑Validity‑‑‑When Appellate Court decides to affirm findings of Trial Court, it would be sufficient compliance with the provisions of law if the evidence is essentially discussed and findings recorded‑‑‑If some issues are discussed and decided together that does not amount to violation of law‑‑‑Real question for deciding appeal should be whether a party has been prejudiced and there has been gross miscarriage of justice‑‑‑Case of the petitioner was re‑examined at revisional stage by the High Court who had concurred with the findings recorded by two Courts below for cogent reasons‑‑‑Supreme Court declined to interfere with the judgment in exercise of Constitutional jurisdiction‑‑‑Leave to appeal was refused.
Roshi v. Fateh 1982 SCMR 542 and Samiul Haq v. Maqbool Hussain Butt 2001 SCMR 1053 ref.
M Aftab Iqbal Chudhry, Advocate Supreme Court for Petitioner.
Nemo for Respondents.
Date of hearing: 12th July, 2002.
2004 S C M R 879
[Supreme Court of Pakistan]
Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ
ABBAS ALI and another‑‑‑Petitioners
Versus
THE STATE‑‑Respondent
Criminal Petitions Nos.447‑L and 448‑L of 2002, decided on 9th January, 2003.
(On appeal from the order dated 6‑5‑2002 of the Lahore High Court, Lahore, passed in Criminal Revision Nos.368 and 369 of 2002).
Criminal Procedure Code (V of 1898)‑‑-
‑‑‑‑S. 514‑‑‑Penal Code (XLV of 1860),Ss.302/324/148/149‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Forfeiture of surety bonds‑‑‑High Court had dealt with the matter in a comprehensive manner taking into consideration the procedural law and had rightly upheld the order of Sessions Court forfeiting the surety bonds and imposing the penalty of Rs.40,000 on each petitioner‑‑‑Conclusion arrived at by the High Court was strictly in accordance with law and settled norms of justice‑‑‑No question of public importance was involved in the case‑‑‑Leave to appeal was declined to the petitioners in circumstances.
Zeeshan Kazmi v. The State PLD 1997 SC 267; Abdul Bari v. Malik Amir Jan and 4 others PLD 1998 SC 50 and Muhammad Safeer v. Faqir Khan and 2 others 2000 SCMR 312 ref.
Ch. Ali Muhammad, Advocate Supreme Court with Malik Rehmat Khan Awan, Advocate‑on‑Record for Petitioners.
Nemo for Respondent.
Date of hearing: 9th January, 2003.
2004 S C M R 882
[Supreme Court of Pakistan]
Present: Javed Iqbal and Tanvir Ahmed Khan, JJ
MURTAZA HASEEB TEXTILE MILLS‑‑‑Petitioner
Versus
SITARA CHEMICAL INDUSTRIES‑‑‑Respondent
Civil Petition for Leave to Appeal No. 1181‑L of 2002, decided on 27th May, 2002.
(On appeal from the judgment dated 11‑3‑2002 of the Lahore High Court, Lahore, passed in Regular First, Appeal No.800 of 2002).
Civil Procedure Code (V of 1908)‑‑
‑‑-‑O. XXXVII, R.3‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑-Conditional leave to defend the suit‑‑‑Non‑compliance of conditions imposed in leave granting order‑‑‑Failure to furnish security‑‑‑Trial Court directed the defendant to deposit surety of suit amount within one month‑‑‑Defendant failed to comply with the order and the Trial Court had no option but to decree the suit‑‑‑High Court maintained the judgment and decree passed by Trial Court which gave the defendant sufficient time to comply with its direction ‑‑‑Defendant on the contrary instead of complying with the same, unnecessarily involved the plaintiff in uncalled for litigation‑‑‑Validity‑‑‑Conduct of the defendant as determined by the trial Court was certainly contumacious and no illegality whatsoever had been committed by the High Court in dismissing the appeal through the judgment‑‑‑Leave to appeal was refused.
Mahmood A. Qureshi, Advocate‑on‑Record for Petitioner.
Nemo for Respondent.
Date of hearing: 27th May, 2002.
2004 S C M R 885
[Supreme Court of Pakistan]
Present: Falak Sher and Karamat Nazir Bhandari, JJ
NASRULLAH KHAN‑‑‑Petitioner
Versus
MANZOOR HUSSAIN and others‑‑‑Respondents
Criminal Petition No.775‑L of 2000, decided on 26th February, 2003.
(On appeal from the judgment dated 30‑3‑2000 passed by the Lahore High Court, Lahore in W.P. No.2987 of 2000).
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss. 420/461/468/471‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑Judicial Magistrate had discharged the accused concurring with the police request‑‑‑High Court in exercise of its Constitutional jurisdiction set aside the said order directing entrustment of the investigation of the case to some responsible officer of repute vide the impugned order‑‑-Leave to appeal was sought contending interference with the investigation‑‑‑Contention was ill‑founded, because direction for proper investigation through an independent officer under the supervision of the District Superintendent of Police was unexceptionable‑‑‑Leave to appeal was refused accordingly.
Ch. M. Ramzan, Advocate Supreme Court with M.A. Qureshi, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing: 26th February, 2003.
2004 S C M R 887
[Supreme Court of Pakistan]
Present: Abdul Hameed Dogar and Faqir Muhammad Khokhar, JJ
Mst. KHURSHID BEGUM and 6 others‑‑‑Petitioners
Versus
GHULAM MUHAMMAD ‑‑‑ Respondent
Civil Petition No.901‑L of 2002, decided on 17th April, 2002.
(On appeal from the judgment dated 20‑2‑2002 of the Lahore High Court, Lahore, passed in Review Application No. 10‑C of 2002).
Constitution of Pakistan (1973)‑‑‑
‑‑‑-Art. 185(3)‑‑‑Petition for leave to appeal‑‑‑Revision was dismissed by High Court on 15‑11‑2001 and against that order, the petitioner preferred review application which was also dismissed‑‑‑Order dated 15‑11‑2001 passed in revision was not challenged before Supreme Court directly and instead the order passed in review application was challenged‑‑‑Validity‑‑‑Since the revision petition was allowed by the High Court on 15‑11‑2001 against which no petition for leave to appeal was filed before Supreme Court as such the same had attained finality‑‑Petitioner sought review of the order passed in the main revision without legal justification‑‑‑Supreme Court declined to interfere with the order passed by High Court in exercise of revisional jurisdiction‑-‑Leave to appeal was refused.
Ch. Bashir Ahmed, Advocate Supreme Court with Mahmood A. Qureshi, Advocate‑on‑Record for Petitioners.
Nemo for Respondent.
Date of hearing: 17th April, 2002.
2004 S C M R 888
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ
MUHAMMAD BASHIR‑‑‑Petitioner
Versus
THE STATE‑‑‑Respondent
Criminal Petition for Leave to Appeal No.91‑L of 2003, decided on 24th February, 2003.
(On appeal from the judgment dated 13‑1‑2003 of the Lahore High Court, Multan Bench, Multan, passed in Criminal Appeal No‑30 of 1998).
Prevention of Corruption Act (II of 1947)‑‑‑
‑‑‑‑S. 5(2)‑‑‑Penal Code (XLV of 1860), S.161‑‑‑Constitution of Pakistan (1973),--‑Art. 185(3)‑‑‑Complainant had not entered the witness‑box and had submitted an affidavit exonerating the accused, yet no reliance could be placed upon such affidavit as the other side had not been given any opportunity to examine him because of his non‑appearance‑‑‑Even otherwise, whole machinery had been moved at the initiation of the complainant who had lodged a complaint and at his asking a raiding party was constituted which ultimately raided the premises and recovered the tainted amount‑‑‑Payment of Rs.1000 had been established beyond doubt from the testimony of prosecution witnesses who had no animus whatsoever against the accused and who had categorically deposed that the accused had demanded the amount of Rs.2500 for the issuance of P.T.1 out of which Rs.1000 were paid initially and the remaining amount of Rs.1500 was to be paid subsequently‑‑‑Impugned judgment did not suffer from any illegality or infirmity warranting interference by Supreme Court‑‑‑Leave to appeal was refused to accused in circumstances.
Bashir Ahmad, Junior Clerk, District Education Office (Male) District Jhang v. State 2001 SCMR 634 ref.
Khadim Nadeem Malik, Advocate Supreme Court for Petitioner.
Nemo for Respondent.
Date of hearing: 24th February, 2003.
2004 S C M R 891
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ
KHURSHID ALAM‑‑‑Petitioner
Versus
KHUSHI MUHAMMAD through Mushtaq Ahmed and others‑‑‑Respondents
Civil Petition for Leave to Appeal No.1088‑L of 2002, decided on 17th April, 2002.
(On appeal from the judgment dated 4‑2‑2002 of the Lahore High Court, Lahore, passed in Civil Revision No.2055 of 1995).
Colonization of Government Lands (Punjab) Act (IV of 1912)‑‑‑
‑‑‑‑S. 19‑‑‑Specific Relief Act (I of 1877), S.12‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Conferment of proprietary rights after delivery of possession‑‑‑Registered agreement to sell‑‑‑Agreement to sell was got registered by the parties and pursuant thereto possession of the property in dispute was given to the plaintiffs in the year 1963‑‑Proprietary rights were conferred upon defendant on 30‑4‑1977 and consequently mutation was sanctioned on 4‑5‑1977‑‑‑Plaintiffs, according to the terms of the agreement, also paid the instalments‑‑‑Trial Court decreed the suit in favour of the plaintiffs but the Appellate Court dismissed the same being time‑barred‑‑‑High Court in exercise of revisional jurisdiction restored the judgment passed by Trial Court‑‑Plaintiffs remained vigilant throughout and the defendant deferred execution of the sale‑deed on one pretext or the other and finally declined to perform his part of the contract‑‑‑Effect‑‑‑Plaintiffs, in circumstances, could not be said to have slept over their rights and their suit was barred by limitation, particularly so when they had no notice of the refusal of performance on the part of the defendant‑‑‑Possession of the disputed land was transferred to the plaintiffs by the defendant under the agreement as far back as in the year 1963‑‑‑During all the period the defendant had not brought any evidence worth consideration on record to demonstrate that possession of the plaintiffs was either illegal or was under some other terms‑‑‑Judgment of High . Court was free from any legal infirmity warranting interference by Supreme Court‑‑‑Leave to appeal was refused.
Malik Saeed Hassan, Senior Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing: 17th April, 2002.
2004 S C M R 893
[Supreme Court of Pakistan]
Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ
MUHAMMAD ASHRAF‑‑‑Petitioner
Versus
MUNIR AHMAD and others‑‑‑Respondents
Criminal Petition No.82‑L of 2003, decided on 25th February, 2003.
(On appeal from the order dated 9‑1‑2003 of the Lahore High Court, Lahore, passed in Criminal Miscellaneous No.8504/B of 2002).
Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 497(5)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.16/10‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Cancellation of pre‑arrest bail‑‑‑Section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, had already been deleted from the charge as a result of investigation in the case and no sufficient incriminating material was available on record to, prima facie, make out a case against the accused under S.10 thereof‑‑‑F.I.R. was lodged after delay of seven months‑‑‑Wife of the complainant had left his house and filed a suit for dissolution of marriage against him, meaning thereby that she did not want to live with her husband‑‑‑Impugned order of High Court granting pre‑arrest bail to accused did not suffer from any illegality or infirmity‑‑‑Leave to appeal was refused to complainant accordingly.
Malik Abdul Wahid, Advocate Supreme Court with Muhammad Ozair Chughtai, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing: 25th February, 2003.
2004 S C M R 895
[Supreme Court Pakistan]
Present: Javed Iqbal and Tanvir Ahmed Khan, JJ
Mst. JANNAT through Allah Ditta and others‑‑‑Petitioners
Versus
KHUDA BAKHSH through Ilahi Bakhsh and others‑‑‑Respondents
Civil Petition for Leave two Appeal No.1419‑L of 2002, decided on 15th July, 2002.
(On appeal from the judgment dated 10‑4‑2002 of the Lahore High Court, Lahore, passed in Civil Revision No.335‑D of 1988).
Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑Ss. 42 & 54‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑Inheritance‑‑‑Custom‑‑‑Applicability‑‑‑Dispute between the parties was with regard to the mutation of inheritance‑‑‑Plaintiffs claimed that the deceased was governed by Muslim Personal Law whereas the defendants asserted that the deceased was governed by custom‑‑‑Trial Court dismissed the suit but the Appellate Court allowed the appeal and the suit was decreed‑‑‑Defendants failed to point out any material on record from which it could be gathered that the predecessor‑in‑interest of the parties was governed by custom‑‑‑Such question of fact had been determined by the Appellate Court which had been maintained by the High Court‑‑‑Validity‑‑‑Supreme Court declined to interfere with the judgment and decree passed by High Court in exercise of revisional jurisdiction‑‑‑Leave to appeal was refused.
Ch. Arshad Mahmood, Advocate Supreme Court for Petitioners.
Nemo for Respondents.
Date of hearing: 28th May, 2002.
2004 S C M R 897
[Supreme Court of Pakistan]
Present: Javed Iqbal Tanvir Ahmed Khan and Muhammad Nawaz Abbasi, JJ
MUHAMMAD RIAZ‑‑‑Petitioner
Versus
THE STATE ‑‑‑Respondent
Jail Petition No. 149 of 2001, decided on 12th July, 2002.
(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, dated 15‑8‑2001 passed in Criminal Appeal No.229 of 1995 and Murder Reference No. 19 of 1996).
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 302‑-‑Constitution of Pakistan (1973), Art.185(3) ‑‑‑ Eye‑witnesses being inmates of the house were direct and natural witnesses of the occurrence who had narrated the occurrence in detail on each material point without any describable contradiction‑‑‑Medical evidence, motive and abscondence of accused after the occurrence had corroborated the ocular evidence‑‑‑Finding of guilt of the accused arrived at by the Trial Court and maintained by the High Court did not call for any interference by the Supreme Court‑‑‑Leave to appeal was refused to accused accordingly.
Nazir Ahmed Khan Lughmani, Advocate Supreme Court for Petitioner.
Nemo for Respondent.
Date of hearing: 12th July, 2002.
2004 S C M R 902
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ
GOVERNMENT OF PAKISTAN through Chief Engineer (South), PAK. P. W. D. ‑‑‑Petitioner
Versus
Messrs Haji MUHAMMAD SIDDIQUE and others‑‑‑Respondents
Civil Petitions Nos.478‑K to 480‑K of 2001, decided on 29th November, 2001.
(On appeal from the order dated 29‑5‑2001 passed by the High Court of Sindh, Karachi, in High Court Appeals Nos.139 to 141 of 2001).
Arbitration Act (X of 1940)
‑‑‑‑Ss. 17 & 30‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Making the award rule of Court‑‑‑Objections‑‑‑Contentions of the Government were that the High. Court had not considered objections filed by the Government against filing of award by the arbitrator who was not competent and authorized under the law to give award; that the order of the High Court was not a "speaking order" but yet appeal was dismissed; that the High Court did not consider the fact of not impleading necessary parties viz. Ministry of Defence and Civil Aviation Authority in the proceedings to whom the project belonged but made the executing Agency viz. the Government liable for the alleged claim which was not sustainable in law though from the very beginning the objections were brought on the record, that the award made and filed by an unauthorized illegally appointed Arbitrator which, award could not be termed to be an award in the law hence it conferred 'no right of claim upon the respondent and that sufficient cause was shown for delay in filing of appeals before the High Court but the same was not considered nor the merits of the case, and the judgment was passed without applying mind a and considering the relevant provisions of law‑‑‑Leave to appeal was granted by Supreme Court to consider the contentions raised by the Government.
S. Zaki Muhammad, Deputy Attorney‑General and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing: 29th November, 2001.
2004 S C M R 905
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Faqir Muhammad Khokhar, JJ
GHULAM AMIR‑‑‑Petitioner
Versus
MUNICIPAL CORPORATION and others‑‑‑Respondents
Civil Petition No.92‑L of 2000, decided on 12th July, 2002.
(On appeal from the judgment dated 2‑11‑1999 passed by the Lahore High Court Lahore in Civil Revision No. 1451‑D of 1986).
Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑Ss. 42 & 54‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Building plan, sanction of‑‑‑Concurrent findings of fact by the Courts below‑‑Grievance of the plaintiff was that the suit‑land was not acquired by the authorities and did not fall within the residential scheme, therefore, the authorities could not deny sanction of building plan‑‑Trial Court dismissed the suit and the judgment and decree was maintained by Appellate Court as well as by High Court in exercise of revisional jurisdiction‑‑‑Validity‑‑‑All the Courts recorded concurrent findings of fact that the suit property had been included in an approved, scheme since 1942‑43 and that the suit property was duly acquired‑‑‑Acquisition of the land having been admitted by the plaintiff there was no question of sanctioning of the building plan of the plaintiff qua the suit property, the title of which was already vested in the Municipal Corporation Judgments and decrees passed by the Courts below did not suffer from any infirmity so as to call for interference by Supreme Court‑‑‑Leave to appeal was refused.
Malik Amjad Pervaiz, Advocate Supreme Court with C.M. Lateef, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing: 12th July, 2002.
2004 S C M R 907
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal, Muhammad Nawaz Abbasi and Karamat Nazir Bhandari, JJ
MUHAMMAD ARIF‑‑‑Petitioner
Versus
THE STATE‑‑‑Respondent
Criminal Petition No.394‑L of 2001, decided on 13th September, 2002.
(On appeal from the judgment of Lahore High Court, Lahore dated 14‑3‑2002 passed in Criminal Appeal No. 1179 of 2000 and Murder Reference No.459‑T of 2000).
Penal Code (XLV of 1860)‑‑‑--
‑‑‑‑S. 302(b)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted to accused to re‑appraise the evidence in view of the contentions that the evidence of recovery and motive being not believable, conviction of accused on the capital charge on the basis of sole evidence of extra‑judicial confession, a weak type of evidence, was not sustainable.
A.H. Masood, Advocate Supreme Court with Tanvir Ahmed, Advocate‑on‑Record (absent) for Petitioner.
Nemo for Respondent.
Date of hearing: 13th September, 2002.
2004 S C M R 909
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Rana Bhagwandas and Khalil‑ur‑Rehman Ramday, JJ
MUHAMMAD DIN‑‑‑Petitioner
Versus
ADALAT KHAN alias LITTI and 2 others‑‑‑Respondents
Criminal Petition for Leave to Appeal No.137‑L of 2002, decided on 27th June, 2002.
(On appeal from judgment of the Lahore. High Court, Lahore dated 18‑1‑2002 passed in Criminal Appeal No. 1203 of 2000 and Criminal Revision No.582 of 2000).
Penal Code (XLV of 1860)‑‑‑--
‑‑‑Ss.302/34, 364 & 148‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑Appeal against acquittal‑‑‑High Court had acquitted the accused on having entertained serious doubts about the very story of the abduction of the deceased which was not proved and the incident of murder being un witnessed, accused could not be convicted and sentenced on mere suspicion‑‑‑Findings recorded by High Court were neither perverse nor artificial nor based on misreading or non‑reading of any material piece of evidence‑‑‑Leave to appeal was declined to the complainant in circumstances.
Malik Saeed Hassan, Senior Advocate Supreme Court for Petitioner.
Nemo for Respondents
Date of hearing: 27th June, 2002.
2004 S C M R 911
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJ
GHULAM HABIB JADOON‑‑‑Petitioner
Versus
KARACHI WATCH AND CARE SOCIETY and 3 others‑‑‑Respondents
Civil Petition No.266‑L of 2002, decided on 21st February, 2002.
(On appeal from the order dated 12‑12‑2001 of High Court of Sindh, Karachi, passed in Civil Petition No.D‑1805 of 2001).
Sindh Buildings Control Authority Ordinance (V of 1979)‑‑‑
‑‑‑‑S. 6‑‑‑Constitution of Pakistan (1973), Arts.185(3) & 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Non‑Governmental Organization, locus standi of ‑‑‑Probono Publico litigation ‑‑‑Principle‑‑Applicability‑‑‑Construction in violation of approved building plan‑‑Petition filed by respondent, a non‑governmental organization, was allowed by the High Court and the authorities were directed to demolish the unlawful construction raised by the petitioner‑‑‑Contention of the petitioner was that the non‑governmental organization had no locus standi to file the petition‑‑‑Validity‑‑‑Case had the characteristics of public interest litigation and the non‑governmental organization was probono publico, as such, had locus standi to file the petition and High Court had the jurisdiction to entertain the matter‑‑‑Construction raised by the petitioner being in violation of the approved plan, therefore, demolishing order passed by the High Court was in accordance with law and no exception could be taken to it‑‑‑Leave to appeal was refused.
Multiline Associates v Ardeshir Cowasjee and others 1985 SCMR 362 rel.
Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing: 21st February, 2002.
2004 S C M R 913
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, C.J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ
MUHAMMAD NOOR alias BABAK‑‑‑Appellant
Versus
THE STATE‑‑‑Respondent
Criminal Appeal No. 131 of 2000, decided on 12th April, 2002.
(On appeal from the judgment of High Court of Balochistan dated 31‑12‑1998 passed in Criminal Appeal No.316 of 1998 and Murder Reference No.7 of 1998).
(a) Penal Code (XLV of 1860)‑‑‑------
‑‑‑‑Ss.302(b) & 337‑F(ii)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑Identification test of the accused was held after twelve days of his arrest‑‑‑Circumstantial evidence in the case was not forthcoming‑‑Motive was shrouded in mystery‑‑‑Leave to appeal was granted to accused in circumstances to ascertain whether the principle laid down by Supreme Court for safe administration of criminal justice had been considered by the Courts below.
(b) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss. 302(b) & 337‑F(ii)‑‑‑Appraisal of evidence‑‑‑Accused being previously known to the witnesses, the identification test parade was not needed‑‑‑Ocular account of the injured eye‑witnesses was quite truthful, independent and confidence‑inspiring which was corroborated by medical evidence‑‑‑Accused had not been able to substantiate his plea of sustaining injuries in another occurrence by any evidence‑‑‑Participation of accused in the occurrence in which the deceased had lost his life had thus, been established beyond doubt‑‑‑Convictions and sentences of accused were upheld in circumstances and his appeal was dismissed accordingly.
Ch. Ghulam Ahmad, Advocate Supreme Court for Appellant.
Arshad Ali, Advocate Supreme Court for Respondent.
Date of hearing: 12th April, 2002.
2004 S C M R 919
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Tanvir Ahmed Khan, JJ
GHULAM RASOOL through Abdul Rashid and others‑‑‑Petitioners
Versus
SARFRAZ through Mst. Khatoon Mai and others‑‑‑Respondents
Civil Petition for Leave to Appeal No.5101‑L of 2000, decided on 1st July, 2002.
(On appeal from the judgment dated 23‑11‑2000 of the Lahore High Court, Lahore, passed in Regular Second Appeal No.249 of 1981).
Punjab Pre‑emption Act (I of 1913)‑‑‑
‑‑‑‑Ss. 4 & 21‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Right of pre‑emption, exercise of ‑‑‑Pattadar (lessee) of suit‑land‑‑‑When the suit land was sold, the pre‑emptor was Pattadar and not co‑owner of the suit land‑‑‑High Court found pre‑emptor not entitled to exercise right of pre emption and the suit was dismissed ‑‑‑Validity‑‑‑Pre‑emptor having been found to be a Pattadar i.e. a lessee throughout, he could not be permitted to say that he being a tenant had a preferential right of pre‑emption over the suit‑land‑‑‑Judgment by High Court did not suffer from any factual or legal infirmity in that there had been no misreading or non‑reading of the record‑‑‑Judgment being based on correct, careful and elaborate appreciation of the legal and admissible evidence on record, the same did not warrant any interference in the exercise of discretion by Supreme Court‑‑‑Leave to appeal was refused.
Sh. Naveed Shehryar, Advocate Supreme Court with S. Abul Aasim Jafri, Advocate‑on‑Record for Petitioners.
Khan A. Hameed, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Respondents.
Date of hearing: 1st July, 2002.
2004 S C M R 922
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJ
COLLECTOR OF CUSTOMS (EXPORTS) CUSTOMS HOUSE, KARACHI and 3 others‑‑‑Petitioners
Versus
SHAFIQ TEXTILE MILLS LTD., KARACHI‑‑‑Respondent
Civil Petitions Nos.497‑K to 505‑K of 2002, decided on 19th July, 2002.
(On appeal from the judgment dated 9‑2‑2002 of High Court of Sindh, Karachi passed in Constitutional Petitions Nos.D‑480 of 1995, D‑2182 of 1994, D‑2183 of 1994, D‑2184 of 1994, D‑2185 of 1994, D‑2186 of 1994 and D‑2187 of 1994).
Customs Act (IV of 1969)‑‑‑
‑‑‑‑Ss. 32 & 156(1)(14)‑‑‑Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Departmental remedies, non‑availing of‑‑‑Effect‑‑‑Wilful wrong declaration‑‑‑Imposing of penalty‑‑‑Leave to appeal was granted by Supreme Court to consider; whether Constitutional petitions could be filed before High Court under Art.199 of the Constitution for recovery of tax without availing other departmental remedies as prescribed under the law; whether the S.R.O. No.738(1)(90), dated 11‑7‑1990 was illegal and discriminatory; whether the goods exported by the respondent were "open end yarn wrapped on cheese or they were cotton yarn having count NE 21/2"; whether for wilful wrong declaration penalty could be imposed under the provisions of S.156(1)(14) of Customs Act, 1969; and whether show‑cause notices issued to the respondent under S.32 of Customs Act, 1969, were illegal.
Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioners.
Anwar Mansoor, Advocate Supreme Court with K.A. Wahab, Advocate‑on‑Record for Respondent.
Date of hearing: 19th July, 2002.
2004 S C M R 923
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, C.J., Sardar Muhammad Raza Khan and Faqir Muhammad Khokhar, JJ
Mst. MOODAN‑‑‑Petitioner
Versus
SAIFULLAH and 2 others‑‑‑Respondents
Criminal Petition No.802‑L of 2001, decided on 26th June, 2002.
(On appeal from the judgment dated 5‑11‑2001 of the Lahore High Court in Criminal Appeal No.374 of 2000).
(a) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss. 302(b)/34 & 458/34‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Appeal against acquittal‑‑‑Inordinate delay in lodging the F.I.R. in the absence of any plausible explanation was fatal‑‑‑Names of male eye‑witnesses had not been mentioned in the relevant column of the medico‑legal report‑‑‑Ocular account was not supported by medical evidence‑‑‑No electric bulb was shown either in the F.I.R. or in the site plan‑‑‑Not a single crime empty was secured from the spot‑‑‑No report of Fire‑arm Expert had come on record‑‑‑Formation of another view on the basis of evidence did not constitute a valid ground to interfere with the acquittal of accused which was based on sound footing‑‑‑No material illegality or irregularity was highlighted on behalf of complainant for interference by Supreme Court in the impugned judgment of acquittal‑‑Leave to appeal was refused accordingly.
(b) Criminal Procedure Code (V of 1898)‑‑‑--
‑‑‑‑S. 417‑‑‑Appeal against acquittal‑‑‑Appreciation of evidence‑‑Principles‑‑‑Possibility of another view to be formed on the basis of evidence hardly constitutes a valid ground to interfere with the acquittal of accused based on sound footing.
Malik Abdul Wahid, Advocate Supreme Court for Petitioner.
Nemo for Respondents.
Date of hearing: 26th June, 2002.
2004 S C M R 927
[Supreme Court of Pakistan]
Present: Khalil‑ur‑Rehman Ramday, Muhammad Nawaz Abbasi and Faqir Muhammad Khokhar, JJ
NEMAT ALI and others‑‑‑Petitioners
Versus
Malik HABIB ULLAH and others‑‑‑Respondents
C.M.A. No.1103‑L of 1999 and Civil Petition No.1373‑L of 1999, decided on 16th July, 2002.
Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 185(3)‑‑‑Petition for leave to appeal‑‑Restoration of petition dismissed for non‑prosecution‑‑‑Illness of son of petitioner's counsel‑‑Such plea of absence of the counsel was supported by affidavit of the counsel‑‑‑Supreme Court restored the petition to its original number‑‑Application was allowed.
Rana Nasrullah Khan, Advocate Supreme Court for Petitioners.
Manzoor Hussain Bhatti, Advocate Supreme Court for Respondents.
Date of hearing: 16th July, 2002.
2004 S C M R 928
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui and Muhammad Nawaz Abbasi, JJ
NAVEED QUAMBER and another‑‑‑Petitioners
Versus
M. BASHIR KAYANI and others‑‑‑Respondents
Civil Petition No. 1244 of 1999, decided on 1st April, 2002.
(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, dated 13‑4‑1999 passed in Civil Revision No.104‑D of 1999).
Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S. 42‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Title over suit land‑‑‑Grievance of the plaintiffs was that the predecessor‑in‑interest of defendants had received consideration amount and delivered possession of the suit‑land‑‑‑Plaintiffs claimed that they were the owners of the suitland and after the death of the predecessor‑in‑interest of the defendants, they were under legal obligation to transfer the whole land owned by their predecessor‑in‑interest‑‑‑Plea raised by defendants was that the transaction was not regarding the total ownership of their predecessor‑in interest and plaintiffs were owners only to the extent of the land which had already been transferred to them‑‑‑Trial Court dismissed the suit but Appellate Court allowed appeal and the suit was decreed‑‑‑Judgment and decree passed by Appellate Court was maintained by High Court in exercise of revisional jurisdiction‑‑‑Leave to appeal was granted by Supreme Court to consider; whether the transaction of sale related to 100 Kanals or it was confined only to the extent of the portion of land mentioned in the sale‑deed and the decree passed in favour of plaintiffs for the excess area was nullity; whether possession of land subject‑matter of the dispute was delivered under the sale on payment of sale price and plaintiffs were deemed to be the owners of suit‑land; whether the suit was barred by time or not; and whether it was only a suit for declaration or would also be deemed to be a suit for specific performance of the agreement and decree was rightly passed in favour of plaintiffs.
Ch. Mushtaq Ahmad, Advocate Supreme Court with Mehr Khan Malik, Advocate‑on‑Record for Petitioners.
Syed Najmul Hasan Kazmi; Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Respondents.
Date of hearing: 1st April, 2002.
2004 S C M R 931
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal, Hamid Ali Mirza and Tanvir Ahmed Khan, JJ
MUHAMMAD RIAZ alias BILLU‑‑‑Petitioner
Versus
THE STATE‑‑‑Respondent
Criminal Petition No.288‑L of 2001, decided on 16th July, 2001.
(On appeal from the order dated 24‑4‑2001 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.817‑M of 2001 in Criminal Appeal No.241 of 1990).
(a) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 382‑B‑‑‑Reduction in period of sentence of imprisonment‑‑‑Court no doubt is bound to consider whether the accused is to be awarded benefit of S.382‑B, Cr.P.C., but is not bound to grant its benefit to every accused as a matter of right and discretion is left with the Court which has to consider each case on its merits.
Ehsan Ellahi and others v. Muhammad Arif and others 2001 SCMR 416 ref.
(b) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 382‑B‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Court had discretion to consider each case on its merits and was not bound to grant benefit of 5.382‑B, Cr.P.C. to prisoner as a matter of right‑‑‑Petition for leave to appeal filed by accused against his conviction and sentence had already been dismissed by Supreme Court, but no plea with regard to grant of benefit under S.382‑B, Cr.P.C. was raised by him at that time before Supreme Court‑‑‑Such plea raised now could not be entertained and earlier order passed by Supreme Court could not be recalled in the present petition after such long period‑‑‑Leave to appeal was declined to accused and his petition was dismissed accordingly.
Ehsan Ellahi and others v. Muhammad Arif and others 2001 SCMR 416 ref.
Akhtar Hussain, Advocate Supreme Court with S. Abdul Aasim Jafri, Advocate‑on‑Record for Petitioner.
Nemo for Respondent.
Date of hearing: 16th July, 2001.
2004 S C M R 933
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ
MUHAMMAD JAMIL KHAN‑‑‑Petitioner
Versus
LAL KHAN and 2 others‑‑‑Respondents
Civil Petition No. 1295‑L of 1999, decided on 18th June, 2002.
(On appeal from the judgment dated 9‑6‑1999 passed by the Lahore High Court, Lahore in Civil Revision No.947 of 1999).
Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), Ss.100, 115 & O. VII, R.10‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Suit for declaration without possession‑‑‑Deciding issue regarding valuation of suit alongwith other issues‑‑‑Jurisdiction of High Court under Ss.100 & 115, C.P.C.‑‑‑Scope‑‑‑Plaintiff not being in possession of the suit property only sought declaration without recovery of possession‑‑‑Trial Court dismissed the suit as the same was also not properly valued‑‑‑Plea raised by the plaintiff was that instead of dismissing the suit, the same should have been returned to him under O.VII, R.10, C.P.C.‑‑‑Further plea raised by the plaintiff was that the High Court had wrongly converted the second appeal into revision petition‑‑‑Validity‑‑‑Leave to appeal was granted by Supreme Court to consider; whether in the facts and circumstances of the present case, regular second appeal of the plaintiff was competent and the case of the plaintiff was prejudiced by the conversion of the appeal into civil revision by the High Court; and whether in facts and circumstances of the case the Trial Court was required to return the plaint under O.VII, R.10, C.P.C. and was prohibited by law to decide issue regarding value of the suit for the purposes of court‑fee alongwith other issue.
Dr. M. Mohy‑ud‑Din, Advocate Supreme Court with Tanvir Ahmed, Advocate‑on‑Record for Petitioner.
Shaukat Ali Saqib, Advocate Supreme Court with Muhammad Aslam, Advocate‑on‑Record for Respondents.
Date of hearing: 18th June, 2002.
2004 S C M R 936
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Khalil‑ur‑Rehman Ramday and Faqir Muhammad Khokhar, JJ
MUNAWAR and others‑‑‑Petitioners
Versus
HABIB and others‑‑‑Respondents
Civil Petition No.823‑L of 2002, decided on 10th April, 2002.
(On appeal from the judgment of the Lahore High Court Lahore dated 10‑1‑2002 passed in Writ Petition No. 11585 of 1996).
Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑S. 12(2)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Judgment and decree, setting aside of‑‑‑Plea of fraud and misrepresentation‑‑Validity ‑‑‑Petitioners failed to prove that findings recorded by Trial Court and affirmed by High Court suffered from any illegality‑‑Petitioners could not make out a case for interference, as no evidence had either been misread or misconstrued‑‑‑Supreme Court declined to interfere with the orders passed by High Court and Trial Court‑‑‑Leave to appeal was refused.
Ali Akbar Qureshi, Advocate Supreme Court with Mehmoodul Islam, Advocate‑on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing: 10th April, 2002.
2004 S C M R 937
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ
MUHAMMAD YAR alias KUKOO‑‑‑Petitioner
Versus
THE STATE‑‑‑Respondent
Jail Petition No. 126 of 1999, decided on 2nd May, 2002.
(On appeal from the judgment of Lahore High Court, Lahore dated 29‑4‑1999 passed in Criminal Appeal No.439 of 1993 and Criminal Revision No.354 of 1993).
(a) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss. 302(b) & 324‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Eyewitnesses had supported the prosecution case as contained in the F.I.R. and corroborated each other on each material point‑‑‑Ocular testimony was corroborated by medical evidence and motive‑‑‑Record did not suggest anything to have happened between the accused and the deceased immediately before the occurrence which might be considered as a source of mitigating circumstance in favour of accused for lesser punishment‑‑‑Detention of accused as an under trial prisoner during the trial and as a convict in the jail pending disposal of his appeal before the High Court and his petition for leave to appeal before Supreme Court, would not be an extenuating and mitigating circumstance to be considered for the purposes of quantum of sentence under S.302(b), P.P.C.‑‑‑Upholding of sentence of death .of the accused would not amount to double .punishment‑‑‑Period spent by the accused as a condemned prisoner in the death cell in jail pending disposal of his appeal by the High Court and Supreme Court, could not be deemed as a part of his substantive sentence unless the sentence of death was altered to imprisonment for life‑‑‑Leave to appeal was refused to accused accordingly.
Muhammad Aslam v. Shaukat Ali 1997 SCMR 1307; Faqir Ullah v. Khalil‑uz‑Zaman 1999 SCMR 2203; Maqbool Ahmed v. The State 1987 SCMR 1059; Nuran v. Nura PLD 1975 SC 174 and Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others PLD 1976 SC 452 ref.
(b) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 302(b)‑‑‑Sentence‑‑‑Detention of convict in jail by itself is not a mitigating circumstance entitling him to lesser penalty or reduction in sentence awarded for murder.
Maqbool Ahmed v. The State 1987 SCMR 1059 ref.
Arshad Ali Ch., Advocate Supreme Court for Petitioner.
Nemo for Respondent.
Date of hearing: 2nd May, 2002.
2004 S C M R 944
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Faqir Muhammad Khokhar, JJ
GHULAM SARWAR‑‑‑Petitioner
Versus
AMIR HUSSAIN and 3 others‑‑‑Respondents
Civil Petition No.2184‑L of 2002, decided on 8th July, 2002.
(On appeal from the judgment of the Lahore High Court, Lahore dated 11‑6‑2002 passed in Writ Petition No.20286 of 1998).
West Pakistan Consolidation of Holdings Ordinance (VI of 1960)‑‑‑
‑‑‑‑S. 10‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Consolidation Scheme‑‑‑Time‑barred objections‑‑‑Petitioner challenged the scheme before the consolidation forum after lapse of more than five years‑‑Revenue authorities dismissed the objections and the orders passed by Revenue authorities were maintained by High Court in exercise of Constitutional jurisdiction‑‑‑Plea raised by the petitioner was that he was not given opportunity of hearing‑‑‑Validity‑‑‑Delay defeats equities and law helps the vigilant and not the indolent‑‑‑Despite uncondonable delay in, seeking remedy before the competent forums, the authorities after considering the merits of the case found the case of the petitioner to be devoid of any merit‑‑‑Supreme Court declined to take any exception to the judgment passed by High Court and the orders passed by Revenue authorities ‑‑Leave to appeal was refused.
Zahid Hussain Khan, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing: 8th July, 2002.
2004 S C M R 945
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ
MUHAMMAD NAWAZ and others‑‑‑Petitioners
Versus
THE STATE‑‑‑Respondent
Criminal Petition No. 176‑L of 2001, decided on 7th June, 2002.
(On appeal from the judgment dated 1‑6‑2001 passed by Lahore High Court, Lahore in Criminal Appeal No.792 of 1997).
Penal Code (XLV of 1860)‑‑‑--
‑‑‑‑S. 302/34‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Case for taking a lenient view in favour of accused was made out on the facts and circumstances and already they had been leniently treated by reducing their sentence of imprisonment for life to ten years' R.I. on account of their tender age‑‑‑Impugned judgment of High Court being just and proper did not call for any interference by Supreme Court‑‑‑Leave to appeal was declined to accused accordingly.
Faiz‑ur‑Rehman, Advocate‑on‑Record for Petitioners.
Nemo for Respondent.
Date of hearing: 7th June, 2002.
2004 S C M R 948
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Faqir Muhammad Khokhar, JJ
Haji SHAUKAT HUSSAIN and 4 others‑‑‑Petitioners
Versus
Haji MUHAMMAD BAKHSH and 13 others‑‑‑Respondents
Civil Petition No.2231‑L of 1999, decided on 10th July, 2002
(On appeal from the order dated 26‑10‑1999 of the Lahore High Court, Multan Bench, Multan passed in Civil Revision No.665 of 1998).
Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O.I, R.10‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Transposing of parties‑‑‑Converting some of defendants as plaintiffs‑‑‑Original plaintiff died during pendency of suit and some of his legal heirs were arrayed as plaintiffs and the remaining legal heirs were arrayed as defendants‑‑‑Remaining legal heirs filed an application in Trial Court to be transposed as plaintiffs‑‑‑Trial Court allowed the application and the remaining legal heirs were transposed as plaintiffs‑‑‑Earlier plaintiffs assailed the order in revisional jurisdiction of High Court which was dismissed in limine‑‑‑Validity‑‑‑Earlier plaintiffs were kith and kin of the transposed plaintiffs‑‑‑Trial Court, in order to avoid further delay in disposal of the case, correctly ordered the transposition of all the legal heirs of the deceased owner as plaintiffs, and the same had caused no prejudice to the earlier plaintiffs‑‑‑High Court had properly dealt the point urged by the earlier plaintiffs and no legal infirmity or illegality had been shown in the judgment passed by High Court warranting interference by Supreme Court under Art.185(3) of the Constitution‑‑Leave to appeal was refused.
Alamgir, Advocate Supreme Court with Mehmudul Islam, Advocate‑on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing: 10th July, 2002.
2004 S C M R 950
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Tanvir Ahmed Khan, JJ
DEPUTY POSTMASTER GENERAL, NORTHERN SINDH CIRCLE, HYDERABAD and others‑‑‑Petitioners
Versus
NAFEES AHMED ‑‑‑Respondent
Civil Petition for Leave to Appeal No.737 of 2002, decided on 28th May, 2003.
(On appeal from the judgment dated 27‑03‑2002 of the Federal Service Tribunal, Camp at Karachi, passed in Appeal No.247(K)(CS) of 2000).
Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art.212(3)‑‑‑Dismissal from service and recovery of amount‑‑Respondent civil servant was charge‑sheeted for shortage of amount in treasury and inquiry was conducted, but in inquiry report respondent was not clearly implicated in all defalcations‑‑‑Despite that petitioner Authority after considering all material available on record dismissed respondent from service and also passed order for recovery of the amount‑‑‑Service Tribunal through its order modified penalty and converted penalty of dismissal from service into compulsory retirement and order recovering amount was set aside‑‑‑Petitioner Authority had filed petition for leave to appeal against judgment of Service Tribunal‑‑During course of inquiry respondent was not found fully responsible for shortage of amount and he was simply found negligent, in performing his duties and whole blame for alleged defalcation. prima facie, lay upon other persons‑‑‑No question of law of general public importance as contemplated under Art. 212(3) of Constitution of Pakistan (1973) being involved in the case petition for leave to appeal was dismissed.
Nasir Saeed Sh. Standing Counsel for Petitioners.
Nemo for Respondent.
Date of hearing: 28th May, 2003.
2004 S C M R 952
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, CJ. Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ
AMJAD IQBAL and another‑‑Petitioners
Versus
THE STATE and others‑‑‑Respondents
Criminal Petitions Nos.538‑L and 612‑L of 2002, decided on 12th November, 2003.
(On appeal from the order dated 6‑6‑2002 of the Lahore High Court, Lahore, passed in Criminal Appeal No.868 of 1999, Criminal Revision No.448 of 1998 and M.R. 108‑T of 1999).
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss.302(b)/149 & 449‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑Leave to appeal was granted by Supreme Court to consider the questions as to what was the evidentiary value of the statement of the S.P. examined as a Court witness and whether on the basis of his findings High Court could base its conclusion that what was the effect of the failure of the complainant to disclose the names of the culprits in the F.I.R. in the first instance, in the application submitted by him to the higher police officers and in the writ petition wherein he had simply stated that twelve unknown persons could be identified by him if they were produced before him; the effect of the finding of the guilt of two accused by one Investigating Officer who were killed in police encounter; the effect of the supplementary statement of the complainant made after one and a half months of the occurrence in which the accused were named with specified roles and that if at all the prosecution was to be believed, was the High Court justified in acquitting the respondents?
Kh. Sultan Ahmed, Senior Advocate Supreme Court for Petitioner (in Criminal Petition No.538‑L of 2002).
M. A. Zafar, Advocate Supreme Court for Petitioner (in Criminal Petition No.612‑L of 2002).
Nemo for the State.
Date of hearing: 12th November, 2003.
2004 S C M R 954
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Tanvir Ahmed Khan and Khalil‑ur‑Rehman Ramday, JJ
FAREED AHMAD ‑‑Petitioner
Versus
MUHAMMAD AMIN and others‑ ‑‑Respondents
Civil Petition for Leave to Appeal No. 1524/L of 1999 decided on 6th June, 2002.
(On appeal from the judgment dated 14‑6‑1999 of the Lahore High Court, Lahore, passed in Civil Revision No.2935 of 1994).
Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑Ss.42 & 54‑‑‑Civil Procedure Code (V of 1908), S.9‑‑‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958). Ss.22 & 25‑‑‑Constitution of Pakistan (1973). Art. 185(3)‑‑‑Suit for declaration and injunction‑‑‑Defendant claimed to have purchased disputed property in open auction in year 1962, but no Permanent Transfer Deed was issued in his favour‑‑‑Permanent Transfer Deed issued in favour of plaintiff in year 1971 was cancelled by Settlement Commissioner in year 1983 in exercise of suo motu revisional power‑‑‑Since Evacuee Laws were repealed in 1975, plaintiff had no remedy, thus, he filed suit on 7‑12‑1983 for declaration and injunction‑‑‑Suit was decreed by Civil Court, which decree was upheld by Appellate Court and High Court‑‑Validity‑‑‑High Court and subordinate Courts had dealt with matter on basis of evidence on record‑‑‑No misreading of evidence was pointed out‑‑‑No exception could be taken against concurrent findings of fact‑‑‑Supreme Court dismissed petition being devoid of merits.
Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1 and Musarat Sultana v. Muhammad Saeed 1997 SCMR 1866 ref.
Sh. Masood Akhtar, Advocate‑on‑Record for Petitioner.
Noor Muhammad Sheikh, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Respondent No. 1.
Date of hearing: 6th June, 2002.
2004 S C M R 957
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan, Khalil‑ur‑Rehman Ramday and Falak Sher, JJ
TARIQ AHMED alias TAHRI‑‑‑Petitioner
Versus
THE STATE‑‑‑Respondent
Criminal Petition No. 388‑L of 2002, decided on 11th December, 2002.
(On appeal from the judgment dated 12‑4‑2002 in Criminal Appeal No.396 of 2000 passed by Lahore High Court, Lahore).
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss.302(c) & 201‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Accused in his statement under S.342, Cr.P.C. had not denied the commission of offence and had taken the plea that while committing the act of murder he was intoxicated by liquor and as such did not know what he was doing‑‑‑Trial Court convicted the accused under Ss.302(c) & 201, P.P.C., which was affirmed by the High Court‑‑‑Validity‑‑Deceased had sustained as many as 14 injuries and the accused had admitted the occurrence‑‑‑Plea taken into consideration in juxtaposition to the prosecution version fell to the ground and did not appeal to reason and was totally improbable in the circumstances of the case‑‑‑Petitioner had also failed to point out any illegality in the impugned judgment warranting interference‑‑‑Petition for leave to appeal was dismissed by the Supreme Court.
Tanvir Ahmed, Advocate‑on‑Record for Petitioner.
Nemo for the State.
Date of hearing: 11th December, 2002.
2004 S C M R 959
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry and Khalil-ur-Rehman Ramday, JJ
Mst. FATIMA BIBI---Petitioner
Versus
MUHAMMAD RAFIQ ASHRAF and others---Respondents
Civil Petition No. 1165-L of 1999, decided on 29th May, 2002.
(On appeal from the judgment/order dated 19-11-1998 passed by Lahore High Court, Lahore, in Civil Revision No.650 of 1985).
(a) Civil Procedure Code (V of 1908)---
----O.XIII, R.7(2)---Document not formally brought on record ---Effect--Courts were not obliged to take such documents into consideration.
(b) Constitution of Pakistan (1973)---
----Art.185(3)---Concurrent findings of fact of all Courts including the High Court---No exception could be taken to such findings.
Syed Muhammad Naqi, Advocate Supreme Court and S. Abdul Asim Jafri, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 29th May, 2002.
2004 S C M R 961
[Supreme Court of Pakistan]
Present: Javed Iqbal and Faqir Muhammad Khokhar , JJ
MUHAMMAD IRFAN ---Petitioner
Versus
THE STATE---Respondent
Criminal Petition No.406-L of 2002, decided on 14th January, 2003.
(On appeal from the judgment, dated 18-10-2001 passed by the Lahore High Court, Lahore, in Criminal Appeal No.255 of 1999).
Prevention of Corruption Act (II of 1947)-----
----S.5(2)---Penal Code (XLV of 1860), S.161---Constitution of Pakistan (1973), Art. 185(3)---Sentence, reduction in---Contentions of the accused were that he had suffered loss of service on account of his conviction and sentence; that he had faced protracted criminal trial and other proceedings for over a period of 10 years and had already served actual imprisonment for more than one year and that only 2 or 3 months were left for the expiry of his sentence of 1-1/2 years and that it would serve the interest of justice if the sentence of the accused was reduced to that already undergone by him---Validity---Accused in fact, had suffered an agony of protracted trial and subsequent criminal proceedings for over a period of 10 years and stated to have already served out the sentence for more than one year besides he had also lost his service---Ends of justice would be met if the sentence of the accused was reduced from 1-1/2 years R.I. to that already undergone.
Pervez I. Mir, Advocate Supreme Court for Petitioner.
Abdul Rauf Farooqi, Advocate Supreme Court for the State.
Date of hearing: 14th January, 2003.
ORDER
2004 S C M R 964
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ
FAYYAZ HUSSAIN---Petitioner
Versus
AKBAR HUSSAIN and others---Respondents
Civil Petition No.581-L of 1999, decided on 30th April, 2002.
(On appeal from the judgment dated 24-2-1999 passed by the Lahore High Court, Lahore, in Civil Appeal No. 1758 of 1995).
(a) Administration of justice----------
----Giving preference to affidavit of counsel over judicial proceedings recorded by a Presiding Judge having unfair reputation---Validity---Such course of action, if adopted, would lead to a large number of legal complications.
(b) Qanun-e-Shahadat (10 of 1984)-----
----Arts. 129(e)---Judicial proceedings---Presumption of correctness is always in favour, of judicial proceedings---Credibility is attached to proceedings before a judicial forum---Strong and unimpeachable evidence is required to rebut such presumption.
Ghulam Muhammad v. Malik Abdul Qadir Khan PLD 1983 SC 68 fol.
S. Farooq Hussan Naqvi, Advocate. Supreme Court and Mahmudul Islam, Advocate-on-Record (absent) for Petitioner.
Nemo for Respondents.
Date of hearing: 30th April, 2002.
2004 S C M R 966
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, C.J. Munir A. Sheikh Muhammad Nawaz Abbasi, JJ
MUHAMMAD MURAD ABRO ---Petitioner
Versus
THE STATE through A.-G. Balochistan ---Respondent
Criminal Petition No. 104 of 2000, decided on 23rd October, 2002.
(On appeal from. the judgment of the High Court of Balochistan, Quetta, dated 27-4-2000 passed in Criminal Acquittal Appeal No.49 of 1999).
(a) Criminal Procedure Code (V of 1898)-----
----S.540---Power to summon material witness etc.---Purpose---Purpose of S.540, Cr.P.C. is to enable the Court to go at the truth of the matter to come to a proper conclusion in the case under trial and in the peculiar circumstances it imposes a duty on the Court to summon a person in the, witness-box whose evidence is essential for just decision of the case----Under first part of S.540, Cr.P.C. the Court may, in its discretion summon of recall a person of a witness for examination or reexamination, but under the second part it is obligatory for the Court to summon and examine or, recall and re-examine any person if his evidence appears essential for just decision of the case---Court cannot use the power under S.540, Cr.P.C. to advance the case of prosecution or that of defence---However, the Court should liberally use this discretionary power in a case in which the examination of a person is material and is essential to come to the proper conclusion.
(b) Criminal Procedure Code (V of 1898)-----
----S.540---Penal Code (XLV of 1860), S.302/34---Constitution of Pakistan (1973), Art.185(3)---Re-summoning of the, prosecution witness---Witness required to be re-examined claimed to have seen the occurrence and identified the accused at the spot and also in the identification parade---Evidence of the said witness, therefore, was essential for just decision of the case---Question that what had compelled the witness to change his statement at the trial and for what reason he desired to be re-examined could only be resolved in the light of his statement in re-examination---Fate of the case being dependent on the sole statement of the said witness, it would be unfair to the prosecution not to call him in the witness-box far re-examination and his reexamination would not be against the interest of criminal administration of justice---Leave to appeal was refused to accused in circumstances.
Raja Muhammad Afsar, Advocate Supreme Court for Petitioner.
Salahuddin Mangal, Advocate-General, Balochistan for Respondent.
S. A. M. Qaudri, Advocate-on-Record for Complainant.
Date of hearing: 23rd October, 2002
2004 S C M R 969
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
YARA and others---Petitioners
Versus
THE STATE---Respondent
Cr.P.L. A. No.792-L of 2002; decided on 7th January, 2003.
(On appeal from the judgment dated 11-09-2002 of the Lahore High Court, Lahore, passed in Criminal Appeal No.212 of 2001).
Penal Code (XLV of 1860)---
----S. 302(c)---Constitution of Pakistan (1973), Art. 185(3)---Sentence, reduction in---Contentions of the accused persons were that motive as stated by the complainant and admitted by them was that daughter of one of the accused was abducted by the deceased and this matter was being discussed in the Punchait where the alleged occurrence had taken place and that the accused persons were more than 60 years old at the time of occurrence and were in jail for the last more than five years ---Validity--Supreme Court, in view of the facts and circumstances of the case converted the petition for leave to appeal into appeal and reduced the sentences of accused persons to the period already undergone by them.
Syed Ehtesham Qadir Shah, Advocate Supreme Court with Mahmudul Islam, Advocate-on-Record for Petitioner.
Ms. Yasmeen Sehgal, A.A.-G. (on call) for the State.
Date of hearing: 7th January, 2003.
2004 S C M R 971
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ
SAKINDAR SHAH and another---Petitioners
Versus
THE STATE ---Respondent
Jail Petition. No. 112 of 2000, decided on 3rd May, 2002.
(On appeal from the judgment of Peshawar High Court dated 27-4-2000 passed, in M.R. and Crl. A. 242 of 1997).
Penal Code (XLV of 1860)-----
----S.302/34---Constitution of Pakistan (1973), Art. 185(3)---Reappraisal of evidence---Occurrence had taken place at 12-00 noon in broad day light in a bus at Adda in which three persons lost their lives and two passengers sustained injuries---Statement of the one of the deceased persons was recorded in presence of the doctor, who having conducted medical examination of the deceased in his injured condition, had prepared the medical report---Medico-legal Report and the post-mortem report of all the three deceased persons, were proved by the doctor in his statement where he ;tad opined that the death of the victims was caused as a result of sustaining the fire-arms injuries---Confessional statements of the accused persons were recorded by the Magistrate who stated in the Court that the confessions were voluntary---Presence of a passenger in the bus at the time of occurrence could not be disbelieved for the mere reason that his name was mentioned in the F.I.R. as an eye-witness--Deceased and the passengers being strangers to each other, it was not possible for the. deceased to mention the names of witnesses in his statement, however it was mentioned in the statement of the deceased (which was taken as dying declaration) that the occurrence was seen by the passengers present in the bus---Non-appearance of any other passenger except one, was of no import as it was a matter of common knowledge that people avoid to appear as witness---One passenger who gave the statement about the occurrence having no concern with either of the parties, was entirely an independent person and defence had not been able to convince that he was not present at the time of occurrence--Driver and conductor of the bus, who were natural witnesses, avoided to appear as witnesses and their such reluctance was quite common in the society, thus no adverse inference could be drawn for non-appearance of any other person from the bus except one passenger who volunteered to appear in the witness-box---Presence of such witness at the relevant time would be free from any doubt and he being entirely independent witness would be truthful, reliable and dependable---Statement of deceased, before his death in the hospital, was recorded by the S.H.O. of the concerned Police Station in the hospital in presence of the doctor who medically examined the deceased in injured condition and the doctor had also issued a certificate, that the deceased was in senses and could make a statement, which statement was subsequently treated as dying declaration on his death, therefore, reliability of dying declaration would be free from any doubt, having been recorded in presence of doctor as it did not appeal to mind that doctor would issue a false certificate and make a false statement with regard to the senses of the deceased at the time of recording his statement---Deceased having sustained injuries on sensitive part of the body while struggling for the life in the hospital, would not be expected to make a false statement against his opponents---Judicial confessions of the accused persons had been found free of any outside pressure and influence and being voluntary were also corroborated by the medical evidence and dying declaration of the deceased---Retraction of confession by the accused persons thus would not ipso facto make the confession untrue and doubtful---If the confession was found confidence-inspiring same would alone be sufficient to sustain the conviction---Unimpeachable character of direct and circumstantial evidence had established the murder charge against the accused persons beyond all reasonable doubts and finding of guilt arrived at by the Trial Court and maintained by the High Court was unexceptionable---Petition for leave to appeal against the judgment of High Court was dismissed by the Supreme Court.
Sardar Muhammad Siddique Khan, Advocate Supreme Court for petitioners.
Nemo for the State.
Date of hearing: 3rd May, 2002.
2004 S C M R 979
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ
Mirza ABDUL REHMAN---Petitioner
Versus
DEPUTY COMMISSIONER/RETURNING OFFICER, ATTOCK and 2 others---Respondents
Civil Petition No.2372 of 2001, decided on 7th May, 2002.
(On appeal from the Order dated 5-7-2001 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Writ Petition No.2365 of 2001).
Punjab Local Government Elections Ordinance (V of 2000)------
----S.14(s)---Punjab Local Government Elections Rules, 2000, R.18(3)(i)---Constitution of Pakistan (1973), Art.185(3)---Election of Nazim---Rejection of nomination papers of petitioner on ground of his involvement in corrupt practices in earlier election for seat of Chairman, Municipal Committee---High Court refused to settle such factual controversy in exercise of Constitutional jurisdiction---Contention of petitioner was that mere leveling of such allegation would not be a valid ground to disqualify him either in earlier election or in subsequent elections for seat of Nazim without establishing same in proper manner before competent forum---Validity---Allegation of corruption had never been established before any court or authority in an appropriate manner---Such allegation would definitely require a detailed factual inquiry to ascertain its correctness---Neither needful had been done at any stage nor grievance of petitioner had been properly attended in Constitutional petition---Rejection of earlier nomination papers of petitioner for seat of Chairman, Municipal Committee would not ipso facto provide a valid ground to reject his candidature in subsequent elections---Supreme Court converted petition into appeal and disposed of same with such observations.
Wasim Sajjad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioner.
M. Saleem, Tehsil Officer, Talagang for Respondents.
Date of hearing: 7th May, 2002.
2004 S C M R 982
[Supreme Court of Pakistan]
Present: Javed Iqbal and Tanvir Ahmed Khan, JJ
ALLAH DITTA through Legal Representatives and others---Petitioners
Versus
NAEEM RAZA and others---Respondents
Civil Petition No.771-L of 2001, decided on 22nd May, 2002.
(On appeal from the judgment dated 14-2-2001 of the Lahore High Court, Lahore, in Civil Revision No. 1652 of 1990).
Transfer of Property Act (IV of 1882)-----
----S.8---Contract Act (IX of 1872), S.11---Constitution of Pakistan (1973), Art.185(3)---Sale by minor and his step mother---Challenge to such sale by minor to the extent of his share by filing suit---Trial Court dismissed suit, but Appellate Court decreed the same, which decree was upheld by High Court in revision filed by defendant ---Validity---Factum of minority---Proof--Matriculation Certificate got exhibited made abundant clear that plaintiff was born on 14-12-1963 and was minor on 19-6-1980, when transaction concerning sale in question was made--Nothing could be produced in rebuttal in spite of ample opportunities--Age factor being question of fact had rightly been determined by High Court after careful analysis of evidence---No infirmity or illegality could be pointed out in impugned judgment---Supreme Court dismissed petition being devoid of merits.
Mian Iftikhar Shah, Advocate Supreme Court and C.M. Lateef, Advocate-on-Record for Petitioners.
Aamir Raza, A. Khan, Advocate Supreme Court and Mahmood-ul-Islam, Advocate-on-Record for Respondents.
Date of hearing: 22nd May, 2002.
2004 S C M R 984
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
ABDUL REHMAN and others---Petitioners
Versus
FATEH MUHAMMAD and others---Respondents
Civil Petition No. 1283-L of 1999, decided on 6th May, 2002.
(On appeal from the judgment dated 11-6-1999 passed by High Court, Multan Bench, Multan in R.S.A. No.648 of 1969).
(a) Pre-emption-----
---- Right of---Basic principle---Three crucial stages --- Pre-emptor, in order to succeed must successfully establish such right on the day of sale; on the day of filing of suit pre-empting sale and its continued subsistence, till date of decree.
(b) Punjab Pre-emption Act (I of 1913)-----
----Ss.15 & 8(2)---Thal Development Authority Act (XV of 1949), Ss. 4, 20-A, 24, 25, 26 & 36---Constitution of Pakistan (1973), Art.185(3)--suit for pre-emption ---Sale of land by owner after its acquisition under S.36 of Thal Development Authority Act, 1949---Suit filed to pre-empt such sale was decreed by Trial Court, but same was set aside by Appellate Court---High Court dismissed revision filed by the plaintiff--Validity---Right of pre-emption had accrued to the plaintiff at the time of sale, which right did subsist on the date of filing of suit---Such right was extinguished during pendency of suit, when compensation in part was paid to owner of land in pursuance of acquisition of land under S.36 of the Thal Development Authority Act, 1949---After issuance notification under S.36 of the said Act, and after taking possession Pf land sought to be pre-empted and after payment of compensation, such land would absolutely vest in Thal Development Authority for management purposes, whereas its title in fact would vest in Government of Punjab---Right of pre-emption had ceased to exist vis-a-vis such land after payment of its compensation during pendency of suit, thus, suit had rightly been dismissed---No factual or legal infirmity was found in the conclusion reached by High Court or reasons offered therefor---Supreme Court dismissed petition and refused to grant leave to appeal.
(c) Constitution of Pakistan (1973)-----
----Art.185---Question neither urged before High Court nor any foundation laid for canvassing same before Supreme Court, could not be permitted to be urged for the first time before Supreme Court.
Mian Saeed-ur-Rehman Farrukh, Advocate Supreme Court and Tanvir Ahmed Khan, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 6th May, 2002.
2004 S C M R 988
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan, Khalil-ur-Rehman Ramday and Falak Sher, JJ
RIAZ AHMAD alias Raju---Petitioner
Versus
THE STATE---Respondent
Criminal Petition No. 553-L of 2002, decided on 11th December, 2002.
(On appeal from the judgment dated 6-6-2002 in Cr No, 192 of 2001 passed by Lahore High Court, Bahawalpur Bench, Bahawalpur).
Control of Narcotics Substances Act (XXV of 1997)-----
----S.9(c)---Constitution of Pakistan (1973), Art.185(3)---Accused was apprehended when he was carrying 5 kilograms of Charas in a shopper bag---Contentions of the accused were that the conviction had simply been recorded on the testimony of the police officials who, sided with the official version and toed the line taken up by the complainant i.e. the police officials and that the blanket under which the said shopper was kept had not been taken into possession--Validity---Nothing had been brought on the record that any of the witnesses was having any malice against the accused---Police officials were as good witnesses as private persons of the society, testimony of the prosecution, therefore could not be thrown over board simply on the ground that the same had come from the police officials---Blanket being not a case property and secondly the occurrence having taken place in winter, accused could not be left without blanket in a cold weather---Case property being Charas, in, the present case, the same had been recovered, and the report of the Chemical Examiner was positive in that regard--Petition for leave to appeal against the judgment of High Court was dismissed by the Supreme Court.
Sh. Masood Akhtar, Advocate-on-Record for Petitioner.
Nemq for the State.
Date of hearing: 11th December, 2002.
2004 S C M R 990
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, C. J., Munir A. Sheikh and Muhammad Nawaz Abbasi, JJ
Mst. SHAHISTA NAZ ---Petitioner
Versus
MUHAMMAD NAEEM AHMED and another---Respondents
Criminal Petition No. 68-K of 2002, decided on 16th August, 2002.
(On appeal from the judgment of High Court of Sindh, Karachi, dated 13-6-2002, passed in Cr. Miscellaneous Appeal No.24 of 2002).
Criminal Procedure Code (V of 1898)-----
----S.491---Guardians and Wards Act (VIII of 1890), Ss. 17 & 18--Custody of minor---Power of High Court to issue directions in the nature of habeas corpus under S. 491, Cr.P.C.---Scope---Principles--Constitution of Pakistan (1973), Art. 185---Habeas corpus petition for the custody of the minor---High Court allowed the application of the father of the minor mainly on the ground that the mother on contracting second marriage lost her right of Hizanat and was no more entitled to retain the custody of the minor and directed for delivery of custody to the father with the observation that the mother, if so desired, could approach the Guardian Court concerned for custody of the minor---Validity---Mother before contracting second marriage was entitled to retain the custody of minor in exercise of her right of Hizanat and on her re-marriage, despite losing her preferential right of custody, she could still be entrusted and allowed such custody in the welfare of minor as neither she would lose absolute right of custody of minor nor the father, on her re-marriage, would ipso facto become entitled to the custody of child---High Court, in the present case, instead of disturbing the custody of minor with the mother under S.491, Cr.P.C. should have directed the father to approach the Guardian Court for the relief which was being sought from the High Court as at the time of passing of the impugned order, the minor was not in illegal or improper custody---Supreme Court, while converting the petition for leave to appeal into, appeal, set aside the judgment of the High Court.
In the matters pertaining to the custody of minors of tender age, the High Court is empowered to issue directions in the nature of habeas corpus under section 491, Cr.P.C. if the custody of the minor was illegally or improperly disturbed. Section 491, Cr.P.C. provides a more efficacious, speedy and appropriate remedy, in a case of illegal or improper custody of minor and the High Court can pass an order, regarding the temporary custody without prejudice to the rights of the parties for final determination of the dispute pertaining to the custody of the minor by the Guardians and Wards Court but the remedy under section 491, Cr.P.C. is not available to a person for seeking declaration regarding his suitability for having custody of minor on any ground which , is linked with the welfare of minor. The jurisdiction of High Court under section 491, Cr.P.C. can only be invoked, in a case of illegal and improper custody and not for any other consideration including the welfare of the minor. The right of Hizanat having the for ice of an Injunction of Islam is an accepted principle of Islamic Law and" a female on re-marriage may be disqualified to exercise this right bat a mother on account of re-marriage is not absolutely disqualified to be entrusted the custody of a minor child rasher on contracting second marriage she way lose only the preferential right of the custody. The Court in exercise of its power under section 491, Cr.P.C. undoubtedly can restore tile custody of a minor as an interim measure to the person entitled to circumstances, the custody of child with mother, despite her contracting second marriage, should not be disturbed through a summary order under section 491, Cr.P.C. The mother before contracting second marriage was entitled to retain the custody of minor in exercise of her right of Hizanat and on re-marriage despite losing this preferential right of custody she, could still be entrusted and allowed such custody in the welfare of minor as neither she would lose absolute right of custody of minor nor the father on her re-marriage would ipso facto become entitled to the custody of child. The High Court in the given situation instead of disturbing the custody of minor with the mother under section 491, Cr.P.C. should have directed the father to approach the Guardian Judge for the relief being sought from the High Court as at the time of passing of the impugned order, the minor was not in illegal or improper custody.
While converting the petition into appeal, Supreme Court allowed the same and set aside the judgment impugned. The father, on direction of Court, had restored the custody of minor in Court to the mother and if he so desired; may invoke the jurisdiction of the Court concerned under Guardians and Wards Act, 1890.
Petitioner in person with Ghulam Qadir Jatoi, Advocate-on-Record.
Respondent No.1 in person with A.A. Siddiqui, Advocate-on-Record.
Date of hearing: 16th August, 2002.
2004 S C M R 995
[Supreme Court of Pakistan]
Present: Javed Iqbal, Tanvir Ahmed Khan and Muhammad Nawaz Abbasi, JJ
FATEH MUHAMMAD --Petitioner
Versus
GHULAM MUSTAFA and 4 others---Respondents
Civil Petition No.3219 of 2001, decided on 11th July, 2002.
(On appeal from the judgment of Lahore High Court, Bahawalpur Bench, dated 20-9-2001 passed in C.R. No.339-D of 1989).
Specific Relief Act (I of 1877)-----
----S.42---Land Reforms Regulations, 1972 (M.L.R. 115), para.24(4)--Constitution of, Pakistan (1973), Art.185(3)---Suit for declaration--Plaintiff claimed that alleged sale deed executed by him was forged, fictitious and illegal, as being violative of para.24(4) of Land Reforms Regulations 1972---Trial Court dismissed suit, which judgment was upheld by Appellate Court and High Court---Sole point raised by plaintiff that his holding being less than subsistence holding, he could only alienate same in terms of said para.24(4) to a person fulfilling required qualification, did not find favour with High Court to have any substance---No defect of misreading or non-reading of evidence was found in concurrent findings of three Courts on a question of fact--Supreme Court dismissed petition and refused leave.
Muhammad Munir Peracha Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 11th July, 2002.
2004 S C M R 997
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ
NAZAR ABBAS ---Petitioner
Versus
THE STATE---Respondent
Criminal Petition for Leave to Appeal No. 174-L of 2002, decided on 24th April, 2002.
(On appeal from the judgment dated 6-2-2002 of the Lahore High Court, Lahore, passed in Criminal Appeal No.41-J of 1995 and Murder Reference No.56 of 1995).
Penal Code (XLV of 1860)-----
----S.302---Constitution of Pakistan (1973), Art.185(3)---Accused had stated that he would not challenge the merits of the case and prayed for reduction in his sentence--Murder of the deceased was an act of callousness on the part of the accused simply for refusing to give Rishta as desired by him---Accused had failed to substantiate the plea that he was minor at the time of committing the offence---High Court had refused to award lesser sentence to the accused---No plausible reasons for reduction -of sentence having been advanced by the accused, Supreme Court declined interference with the judgment of High Court.
Asghar Ali, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.
Nemo for the State.
Date of hearing: 24th April, 2002.
2004 S C M R 999
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ
GHULAM MUHAMMAD ---Petitioner
Versus
SABIR HUSSAIN and others---Respondents
Civil Petition No. 681-L of 1999, decided on 3rd May, 2002.
(On appeal from the judgment dated 8-3-1999 passed by the Lahore High Court, Lahore, in Civil Revision No. 692-D of 1998).
Specific Relief Act (I of 1877)-----
----S.42---West Pakistan Land Revenue Act (XVII of 1967), S.42--Transfer of Property Act (IV of 1882), S.54---Constitution of Pakistan (1973), Art.185(3)---Suit for declaration---Entry in record of rights adverse to plaintiff's ownership was challenged by them through suit--Defendant's plea was that his sons had purchased suit land from widow of one plaintiff and mutation to that effect had been recorded by Patwari Halqa---Trial Court dismissed suit, but Appellate Court decreed the same---Revision filed by defendant was dismissed by High Court--Validity---Defendant had raised factual controversies, which had already been determined by Appellate Court as well as High Court by holding that the widow was not owner of suit land, and that mutation of sale had not been sanctioned by any Revenue Officer---No oral sale could take place on crucial date as Notification of Government dated 17-12-1974 applying provisions of S.54 of Transfer of Property Act, 1882, held field---Plaintiffs had proved issues framed by Trial Court by adducing satisfactory evidence---No substantial question of law of general public importance was involved in the case---Supreme Court dismissed petition being without any merit.
Muhammad Saleem Shahnazi, Advocate Supreme Court with Sh Salah-ud-Din, Advocate-on-Record for Petitioner.
Sh. Naveed Shehryar, Advocate Supreme Court for Respondents Nos.1 to 8.
Date of hearing: 3rd May, 2002.
2004 S C M R 1001
[Supreme Court of Pakistan]
Present: Khalil-ur-Rehman Ramday, Muhammad Nawaz Abbasi and Faqir Muhammad Khokhar, JJ
GHULAM MUHAMMAD and 3 others---Petitioners
Versus
GHULAM ALI ---Respondent
Civil Petition No. 1588-L of 1999, decided on 16th July, 2002.
(On appeal from the judgment of Lahore High Court, Lahore dated 16-7-1999 passed in C.R. No.507-D of 1984).
(a) Civil Procedure Code (V of 1908)-----
----S. 115---Concurrent finding of fact---No sanctity can be attached to such finding, if same is suffering from defect of misreading and non-reading of evidence---High Court is competent to correct such error and illegality in exercise of revisional jurisdiction.
(b) Civil Procedure Code (V of 1908)-----
----S. 115---Constitution of Pakistan (1973), Art.185(3)---Question of fact---Concurrent finding of two Courts below reversed by High Court---Interference by Supreme Court---Propriety---Mere fact that such finding has been reversed by High Court in revisional jurisdiction would not be a valid ground for interference by Supreme Court.
Ch. Sardar Ali, Advocate Supreme Court and Muhammad Aslam Ch., Advocate-on-Record for Petitioners.
Ch. Muhammad Farooq, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Respondent.
Date of hearing: 16th July, 2002.
2004 S C M R 1007
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, CJ., Javed Iqbal and Abdul Hameed Dogar, JJ
COLLECTOR OF CUSTOMS and another---Appellants
Versus
TARIQ SULTAN & COMPANY and another---Respondents
Civil Appeal No. 1804 and Civil petition No. 163/K of 1997, decided on 1st April, 2004.
(On appeal from the judgment of the High Court of Balochistan, Quetta, dated 8-5-1997 passed in C.P. No.290 of 1996).
(a) Customs Act (IV of 1969)-----
----S. 30---Central Excises Act (I of 1944), S.3(c)---Central Excise Rules; 1944, R.96 ZZ---Notification No. S.R.O. 457(1)/96, dated 13-6-1996---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to consider; whether central excise duty in case of ship breaking was to be recovered as customs duty under S.30 of Customs Act, 1969, with reference to the date on which the bill of entry was filed and whether benefit of Notification No. S.R.O. 457(1)/96, dated 13-6-1996, could be availed by the respondents, and whether the value was to be determined in the present case with reference to S.3(c) of Central Excise Act, 1944, and as such, R. 96 ZZ of Central Excises Rules, 1944, did not apply.
(b) Customs Act (IV of 1969)-----
----S. 30---Central Excises Act (I of 1944), S.3(c)---Central Excise Rules, R.96 ZZ---Notification S.R.O. 457(1)/96, dated 13-6-1996--Central Excise duty, recovery of---Levy of such duty---Crucial date--Bill of entry was filed on 9-6-1996 and the Notification No. S.R.O. 457(1)/96, dated 13-6-1996, was made applicable with effect from 1-7--1996---Plea raised by the authorities was that duty was to be levied on the date on which the bill of entry was filed-7-Validity-Counsel for the authorities admitted that Notification S.R.O. 457(1)/96, dated 13-6-1996, was never withdrawn---In view of such admission, the date of bill of entry would be immaterial---Had the S.R.O. in question been withdrawn, only then the date of bill of entry had been material---Exemption having been granted by means of S.R.O. 457(1)/96, dated 13-6-1996, which was intact, same could be availed by the respondents---Other duties/taxes which were not included in the S.R.O. in question regarding which no exemption was granted could be recovered from the respondent in accordance with law---Judgment passed by High Court being well based did not warrant interference by Supreme Court---Appeal was dismissed.
Federation of Pakistan, through Ministry of Finance and others v. Noorie Trading Corporation (Pvt.) Limited and others 1992 SCMR 710 and Federation of Pakistan and others v. Amjad Hussain Dilwari and 2 others (1992 SCMR 1270) distinguished.
(c) Constitution of Pakistan (1973)-------
----Art. 185(3)---Expunction of remarks---Misuse of authority---High Court, while accepting the Constitutional petition filed by importer had made certain remarks against the customs official---Plea raised by the official was that the remarks were uncalled for---Validity---Customs official had acted whimsically, arbitrarily and had misused his authority by deducting duties/taxes in a fraudulent manner which was apparent on record and had rightly been taken notice of in the judgment passed by High Court---No illegality or irregularity had been committed by passing the remarks which were in consonance with record---Supreme Court directed the Central Board of Revenue to take action pursuant to the observations as made by High Court---Question raised by the official might be a question of personal grievance but no question of law of public importance was involved in the matter---Leave to appeal was refused.
Raja M. Irshad, Deputy Attorney-General and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Appellants (in Civil Appeal No. 1804 of 1997).
Mirza Muhammad Siddique, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.1 (in Civil Appeal No 1804 of 1997). .
Muhammad Bilal, Senior Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner (in Civil Petition No. 163-K of 1997).
Nemo for Respondents.
Date of hearing: 1st April, 2004.
2004 S C M R 1012
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, C.J. and Qazi Muhammad Farooq, J
MEHMOOD KHAN and another---Petitioners
Versus
THE STATE---Respondent
Criminal Petition No. 468-L of 2003, decided on 27th October, 2004.
(On appeal from the order, dated 2-6-2003 of the Lahore High Court in Criminal Revision No. 438 of 2003).
Criminal Procedure Code (V of 1898)-----
----S. 514---Constitution of Pakistan (1973), Art. 185(3)---Forfeiture of surety bonds---Petitioners had stood sureties for the accused who had jumped bail---Petitioners had failed to fulfill their obligation for quite a long time and did not comply with the order of the Trial Court---High Court had rightly declined to exercise discretion in favour of the petitioners---Impugned order did not disclose any illegality warranting interference by Supreme Court---Leave to appeal was refused to petitioners accordingly.
Malik Abdul Majeed Khan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.
Nemo for Respondent.
Date of hearing: 27th October, 2003.
2004 S C M R 1013
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
KHIZAR HAYAT---Petitioner
Versus
THE STATE---Respondent
Criminal Petition for Leave to Appeal No. 189-L of 2003 decided on 30th April 2003.
(On appeal from the judgment dated 27-2-2003 passed by the Lahore High Court Multan Bench in Criminal Revision No. 80 of 2002)
Penal Code (XLV of 1860)---------
--------Ss. 324/34 & 337-D------Constitution of Pakistan (1973), Arts.13 & 185(3)---Question whether the provisions of S.324, P.P.C. which envisage more than one punishments for the same single act are not offensive of the provisions of Article 13 of the Constitution, is a question of first impression which warrants authoritative pronouncement by Supreme Court---Leave to appeal was granted to accused to consider the said issue.
Sh. Khizar Hayat, Advocate Supreme Court and Muhammad Ozair Chughtai, Advocate-on-Record for Petitioner.
Raja Abdur Rahman, A.A.G. and A.H. Masood, Advocate-on Record for Respondent.
Date of hearing: 30th April, 2003.
2004 S C M R 1015
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Khalil-ur-Rahman Ramday, JJ
ABDUL JALIL---Appellant
Versus
GOVERNMENT OF PUNJAB through Chief Secretary, Punjab, Lahore and others---Respondents
Civil Appeal No. 1283 of 2003, decided on 19-4-2004.
(On appeal from judgment/order, dated 18-2-2003, passed by the Punjab Service Tribunal, Lahore in Appeal No. 2659 of 2002).
Punjab Civil Servants Act (VIII of 1974)-----
----S. 12(1)---Punjab Civil Servants (Efficiency and Discipline). Rules, 1999, Rr. 3 & 4---Constitution of Pakistan (1973). Art. 212(3)--Compulsory retirement from service---Charges of inefficiency, corruption and misconduct---Service Tribunal dismissed appeal of civil servant---Authority admitted to have reinstated some Officers by accepting their representations, but contended that had the civil servant waited for decision of his representation by competent authority, his case too would have been decided on merits---Authority did not object to acceptance of appeal of the Civil Servant by the Supreme Court--Supreme Court accepted appeal, set aside impugned judgment and remanded case to competent authority with direction to decide pending representation/appeal of civil servant on merits.
Akhtar Masood Khan, Advocate Supreme Court for Appellant.
Ms. Afshan Ghazanfar, A.A.G. for Respondent No.1.
Nadeem Aslam Ch. D.S. Home Department with Adil Rasheed Under Secretary for Respondents Nos. 2 and 3.
Date of hearing: 19th April 2004.
2004 S C M R 1019
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Faqir Muhammad Khokhar and Falak Sher, JJ
OMAR DARAZ---Petitioner
Versus
THE STATE---Respondent
Criminal Petition No. 238/L, of 2003, decided on 3rd June, 2003.
(On appeal from the judgment of the Lahore High Court, dated 26-3-2003 passed in Criminal Miscellaneous No. 1142/B of 2003).
Criminal Procedure Code (V of 1898)---
----S.497---Penal Code (XLV of 1860), Ss.302/452/34---Constitution of Pakistan (1973), Art. 185(3)---Bail, refusal of---Accused according to F.I.R. had chased the deceased and taken him into his clasp---Accused, as such, had facilitated causing of major injuries by the other accused to the deceased---Plea of alibi raised by accused having been based merely on open and secret inquiries, was not to be accepted at such stage---Well reasoned discretionary order passed by High Court in the matter of post arrest bail having been based on sound judicial principles laid down by superior Courts for safe administration of justice, did not suffer from any legal infirmity---Leave to appeal was refused to accused by Supreme Court accordingly.
Rai Bashir Ahmed, Advocate Supreme Court and Mehmood A. Qureshi, Advocate-on-Record for Petitioner.
A.H. Masood, Advocate Supreme Court for the State.
Date of hearing: 3rd June, 2003.
2004 S C M R 1021
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ
Haji ALAM SHER---Petitioner
Versus
Malik MUHAMMAD NAWAZ and others---Respondents
Civil Petition No. 1760 of 2002, decided on 5th April, 2004.
(On appeal from the judgment, dated 16 2002 of the Lahore High Court, Lahore in Writ Petition No. 15814 of 2002).
(a) Punjab Local Government Elections Ordinance (V of 2000)-----
S. 14(e)Punjab Local Government Elections Rules, 2000, Rr.16(3), 80 & 81Constitution of Pakistan (1973), Art. 185(3) Joint candidacy for election of Nazim and Naib Nazim Matric certificate of respondent (returned candidate) was found bogus, over which Election Tribunal declared election of both returned candidates to be void and declared petitioner as elected High Court in Constitutional petition upheld order of Tribunal to the extent of respondent, but set aside same in respect of other returned candidate Validity
Matric certificate of respondent was bogus as per evidence recorded by Election Tribunal Respondent had never appeared in Secondary School Certificate Examination and so called certificate had been quashed on charge of impersonation proved against him Copy of F.I.R. about such charge had been produced in evidence Certificate regarding passing of Middle Class examination by respondent had also been found illegal Respondent was not qualified to contest election, thus, his election had rightly been declared illegal by Courts below Petitioners had failed to produce any cogent evidence as to notorious disqualification of respondent Petitioners were not confident about disqualification of respondent even at the time of filing of nomination papers Petitioners should not have been declared as elected by Tribunal Order of High Court was not sustainable in law Supreme Court accepted appeal, set aside impugned order with direction to Election Commission to hold fresh elections for both offices of Nazim and Naib Nazim.
Mian Ahmad Saeed and others v. Election Tribunal for Kasur at Okara and others 2003 SCMR 1611 and Bashir Ahmed Bhanbhan v. Shaukat Ali Rajpur (Civil Appeals Nos. 1 and 5 of 2004) rel.
(b) Punjab Local Government Elections Ordinance (V of 2000)----
S.154(1), proviso Election to casual vacancy of Nazim or Naib Nazim Candidate for such office would contest election in individual capacity.
(c) Words and phrases---
"Casual" Meaning.
(d) Punjab Local Government Elections Ordinance (V of 2000)---
Ss. 16(3)(iii) & 154 Joint candidacy of Nazim and Naib Nazim Casual vacancy and vacancy occurring due to disqualification of candidate or decision of Election Tribunal Distinction Casual vacancy would include a vacancy becoming vacant due to removal, resignation, death or any other unforeseen reason Casual vacancy would not include a vacancy, which becomes vacant as result of decision of Election Tribunal Vacancy occurring due to disqualification would not fall within the category of casual vacancy as latter is temporary or accidental, whereas former is of permanent in nature.
Mian Ahmad Saeed and others v. Election Tribunal for Kasur at Okara and others 2003 SCMR 1611 rel.
(e) Punjab Local Government Elections Rules, 2000---
Rr. 16(3)(iii), 80 & 81 Joint candidacy for election of Nazim and Naib Nazim Election of anyone of joint candidates declared void Effect Right of election petitioner/next candidate to be declared as elected Disqualification of returned candidate should be of such a nature that same was publicly or generally known forming a matter of common knowledge, which would not require any evidence.
Mian Ahmad Saeed and others v. Election Tribunal for Kasur at Okara and others 2003 SCMR 1611 and Bashir Ahmed Bhanbhan v. Shaukat Ali Rajpur (Civil Appeals Nos.1 and 5 of 2004) fol.
Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court and M.S. Khattak, Advocate
Record for Petitioner.
Sardar Muhammad Ghazi, Advocate Supreme Court and M.A. Zaidi, Advocate Record for Respondent No. 1.
Date of hearing: 5th April, 2004.
2004 S C M R 1026
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmed, C.J and Karamat Nazir Bhandari, J
MEHBOOB AHMED --- Petitioner
Versus
JAM SOBHA- -Respondent
Criminal Petition No. 409-L of 2003, decided on 24th November, 2003.
(On appeal from the order, dated 2-6-2003 of the Lahore High Court, Bahawalpur Bench in Criminal Revision No. 86 of 1992).
Penal Code (XLV of 1860)-----
----Ss. 302 & 99---Constitution of Pakistan (1973), Art. 185(3)---High Court had remanded the case to Sessions Court with the direction to restart the trial from the stage of arguments against one accused alone--Impugned order was only interim order, legality of which was challenged on the ground that High Court had omitted to consider the import of S.99, P.P.C.---At such stage it was not proper by Supreme Court to, dilate upon the merits of the case or to opine about the correctness, legality or otherwise of the judgment of the High Court as the Trial Court in pursuance of the interim order had yet to determine the guilt or innocence of the person involved---Trial Court, therefore, was directed in the interest of justice to proceed with the case as expeditiously as possible quite independently without being influenced by any observation made by the High Court---Leave to appeal was declined by Supreme Court accordingly.
Barrister M. Farani, Advocate Supreme Court and A.H. Masood, Advocate-on-Record for Petitioner.
Nemo for Respondent.
Date of hearing: 24th November, 2003.
2004 S C M R 1028
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, C.J. and Karamat Nazir Bhandari, J
IKRAMULLAH and others---Petitioners
Versus
THE STATE and another---Respondents
Criminal Petition No. 263-L of 2001, decided on 2nd December, 2002.
(On appeal from the judgment, dated 6-4-2001 of the Lahore High Court, Lahore passed to Criminal Appeal No. 70 of 1997).
Criminal Procedure Code (V of 1898)----
----S. 249-A---Constitution of Pakistan (1973), Art.185(3)---Magistrate had not properly exercised jurisdiction vested in him under S.249-A, Cr.P.C. and had acquitted the accused by an order which, on the face of it was not justified---High Court had rightly set aside the said order---High Court although had not given any specific finding about the condonation of delay in filing the appeal, yet an application under S.5/14 of the Limitation Act, 1908 was pressed into service---Leave to appeal was declined to accused by Supreme Court in circumstances.
Sh. Naveed Shahryar, Advocate Supreme Court and C. M. Latif, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 2nd December, 2002.
2004 S C M R 1030
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ
C.P.L.A. No. 695-L of 1999
MASOOD ABBAS BUKHARI---Petitioner
Versus
THAL DEVELOPMENT AUTHORITY through Administrator and others---Respondents
(On appeal from Judgment of Lahore High Court, Lahore, dated 1-3-1999 passed in Civil Revision No. 1338-D of 1991).
C.P.L.A. No.696-L of 1999
MASOOD ABBAS BUKHARI---Petitioner
Versus
MEMBER (COLONIES) BOARD OF REVENUE, PUNJAB and others---Respondents
(On appeal from judgment of Lahore High Court, Lahore, dated 1-3-1999 passed in Writ Petition Nos. 10140 of 1992).
Civil Petitions for Leave to Appeal Nos. 695-L and 696-L of 1999, decided on 6th May, 2002.
(a) Specific Relief Act (I of 1877)-----
----S. 54---Constitution of Pakistan (1973), Arts. 185(3) & 199---Suit for perpetual injunction---High Court dismissed revision and Constitutional petitions filed against judgment and decree passed by Courts below but neither up-set nor disturbed findings of fact recorded by Courts low with regard to rights and interests of parties in respect of suit-land--High Court with consent of parties ordered disposal of applications with regard to entitlement of parties pending before Board of Revenue strictly according to law---Validity---High Court in exercise of its discretion and for enabling Board of Revenue to decide fate of entitlement of parties to suit-land had neither acted illegally nor arbitrarily---No substantial question of law of general public importance arose in the petition---Supreme Court dismissed petition.
(b) Constitution of Pakistan (1973)-----
----Art. 185---Appeal to Supreme Court---Judgment of High Court, based on exercise of discretion---Supreme Court not bound to interfere with exercise of discretion in decisions, which were otherwise just, proper and equitable.
Ch. Inayatullah, Advocate Supreme Court for Petitioner.
Nemo for Respondents.
Date of hearing: 6th May, 2002.
2004 S C M R 1031
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Khalil-ur-Rehman Ramday, JJ
PAKISTAN RAILWAYS---Petitioner
Versus
SAFDAR ALI and others---Respondents
Civil Appeals Nos. 376 to 378 of 1997, decided on 15th October, 2003.
(On appeal from the judgment, dated 19-3-1996 of the Federal Service Tribunal, passed in Appeals Nos. 155 and 158 of 1995).
Executive decision---
---- Prospective or retrospective in operation---Executive decision could not be construed to be retrospective in operation, thus, would not have adverse effect on the rights already accrued under previous decisions.
Mirza Masood-ur-Rehman, Advocate Supreme Court for Appellant (in Civil Appeal No. 376 of 1997).
Qamar Riaz Hussain Basra, Advocate Supreme Court for Respondent No. 1 (in Civil Appeal No. 376 of 1997).
Hafiz S.A. Rehman, D.A.G. for Respondent No.2 (in Civil Appeal No. 376 of 1997).
Other Respondents (in Civil Appeal No. 376 of 1997) ex parte.
Hafiz Tariq Nasim, Advocate Supreme Court for Appellants (in Civil Appeal No. 378 of 1997).
Qamar Riaz Hussain Basra, Advocate Supreme Court for Respondent No. 1 (in Civil Appeal No. 378 of 1997).
Hafiz S.,A,. Rehman, D.A.G. for Respondent No.2 (in Civil Appeal No. 378 of 1997).
Other Respondents:.ex parte (in Civil Appeal No. 378 of 1997).
Date of hearing: 15th October, 2003.
2004 S C M R 1034
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil-ur-Rahman Ramday, JJ
KHALIL AHMAD and another---Petitioners
Versus
Mst. MUHAMMAD JAN and others---Respondents
Criminal Petition for Leave to Appeal No. 775-L of 2003, decided on 14th April, 2003.
(On appeal from the judgment, dated 28-1-2003 passed by the Lahore High Court, Lahore in R.S.A. No. 37 of 1994).
Contract Act (IX of 1872)-----
----S. 190---Power of attorney authorizing agent to sell property on behalf of the principal---Delegation of such power by agent ---Validity--Principal had not authorized his agent to appoint any other person as attorney or further delegate the power---Mere fact that principal had been informed regarding transaction would not any sanctity to power of attorney executed in favour of delegatee.
Ch. Riyasat Ali, Advocate Supreme Court and Malik Rehmat Khan Awan, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 14th April, 2003.
2004 S C M R 1036
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Mian Muhammad Ajmal, JJ
MUHAMMAD RAFIQ and others---Petitioners
Versus
SARDAR and others---Respondents
Civil Petition No. 2115-L of 1999, decided on 4th July, 2002.
(On appeal from the judgment of the Lahore High Court, Lahore, dated 13-10-1999 passed in C.R. No. 1084 of 1999).
(a) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)----
----Ss. 3 & 5---Termination of life estate---Devolution of property--Deceased left behind one widow and two daughters, but had no male heir---Widow inherited suit-land as limited owner---On termination of her limited interest and in absence of any male heir of deceased (last male owner), daughters would get by way of inheritance the shares allocated to them under Islamic law, whereas remaining property would be inherited by collaterals of deceased (last male owners).
(b) Specific Relief Act (I of 1877)-----
----S.42---Joint property---Suit for mere declaration without seeking possession or partition of property as consequential relief--Maintainability---Such suit by one of the joint owners would be maintainable on the allegation that he was also owner in property, which right was being denied to him---Not necessary for any such joint owner to claim partition of joint property also--- Partition could be claimed by any of the joint owners during currency of joint ownership without limitation of any period in that behalf, so long as his right was not denied.
Mehmood A. Qureshi, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 4th July, 2002.
2004 S C M R 1038
[Supreme Court of Pakistan]
Present: Tanvir Ahmad Khan and Khalil‑ur‑Rahman Ramday, JJ
PROVINCE OF PUNJAB through Collector, Multan and another‑‑‑Petitioners
Versus
MUHAMMAD FAYAZ‑UD‑DIN through Aqeela Bano and others‑‑‑Respondents
Criminal Petition for Leave to Appeal No. 297‑L of 2003, decided on 12th May, 2003.
(On appeal from the judgment, dated 23‑10‑2002 of the Lahore High Court, Multan Bench Multan passed in Civil Revision No. 621/D of 1987).
Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S. 8‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Suit for possession on basis of Permanent Transfer Deed (P.T.D.)‑‑‑Defendant alleged such P.T.D. to have been obtained by plaintiff through fraud and misrepresentation; and suit‑land was not available for allotment for being attached to school‑‑‑Suit decreed by Trial Court, was dismissed by Appellate Court, but was decreed in revision by High Court ‑‑‑Validity‑‑‑Courts below had admitted allotment of suit‑land through P.T.D. and had answered issue of fraud in negative‑‑‑Issuance of P.T.D. had not been questioned before any forum nor any step had been taken to get same cancelled‑‑‑No issue qua vesting of suit‑land in Settlement Department in view of M.L.R. 264 had been framed nor any evidence had been led to substantiate same‑‑‑Factual controversy regarding allotment of suit‑land had been determined by Trial Court and maintained by High Court by giving cogent reasons‑‑‑Settlement Department had demarcated suit‑land in presence of Incharge of hostel of school‑‑‑Impugned judgment was not suffering from any illegality or legal infirmity‑‑‑Supreme Court dismissed petition and refused leave to appeal.
Fauzi Zafar A.A.G. Punjab for Petitioners.
Nemo for Respondents.
Date of hearing: 12th May, 2003.
2004 S C M R 1041
[Supreme Court of Pakistan]
Present: Javed Iqbal and Karamat Nazir Bhandari, JJ
GOVERNMENT OF THE PUNJAB through Chief Secretary, Civil Secretariat, Lahore and others---Petitioners
Versus
Messrs PACE PAKISTAN LIMITED, LAHORE---Respondent
Criminal Petition No. 438-L of 2003, decided on 2nd June, 2003.
(On appeal from the judgment, dated 24-1-2003 of the Lahore High Court, Lahore passed in Writ Petition No. 16255 of 2002)
West Pakistan Urban Immovable Property Tax Act (V of 1958)-----
----S. 10(2)---Revision--Additional Director General, Excise and Taxation was competent to pass revisional order under S.10(2) of West Pakistan Urban Immovable Property Tax Act, 1958.
Shabbar Raza Rizvi, A.G. Punjab and Fauzi Zafar, A.A.G. for Petitioners.
Ejaz Hussain Batalvi, Senior Advocate Supreme Court and Muhammad Aslam Ch. Advocate-on-Record for Respondent.
Date of hearing: 2nd June, 2003.
2004 S C M R 1043
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, C.J., Sardar Muhammad Raza Khan and, Faqir Muhammad Khokhar, JJ
FIDA HUSSAIN through Legal Heirs Muhammad Taqi Khan and others---Petitioners
Versus
MURID SAKINA---Respondent
Civil Petition for Leave to Appeal No. 1463-L of 1999, decided on 1st July, 2002.
(On appeal from the judgment, dated 8-6-1999 of the Lahore High Court, Lahore in R.S.A. No. 435 of 1975).
(a) West Pakistan Land Revenue Act (XVII of 1967)------
----S.42---Mutation of sale---Evidentiary value---Burden of proof--Mutation is not a deed of title, but is merely indicative of some previous oral sale between the parties---Whenever mutation is challenged, burden squarely lies on its beneficiary to prove not only mutation, but also original transaction, which he is required to fall back upon.
(b) West Pakistan Land Revenue Act (XVII of 1967)-----
----S.42---Specific Relief Act (I of 1877), S.8---Constitution of Pakistan (1973), Art. 185(3)---Mutation of sale---Proof---Suit for possession by lady-plaintiff---Defendant's' plea was that he had purchased suit-land from her through mutation---Trial Court dismissed suit, but Appellate Court set aside the same---High Court dismissed appeal filed by the defendant---Validity---Plaintiff while appearing in the Court had expressed total denial about the sale---No suggestion had been put to her about amount of consideration---No original record of mutation proceedings was produced before Court---Neither Revenue Officer nor identifying witness, who allegedly identified plaintiff before Revenue Officer, was produced---Defendant while appearing as witness had not stated as to what was the amount of consideration and whether same was paid to plaintiff or not---Defendant had, thus, failed to prove either original transaction or valid attestation of mutation---Defendant on date of disputed mutation had acquired some property as mortgage from his aunt, whose name also happened to be, that of plaintiff---Defendant appeared to have got disputed mutation of sale on behalf of plaintiff attested on same date by falsely impersonating his aunt for plaintiff before Revenue Officer, who was brother-'in-law of defendant---All such circumstances collectively- proved that disputed mutation of sale was fictitious and plaintiff had been deprived of her property by defendant fraudulently---Defendant was now dead, otherwise same was the case of special costs---Supreme Court dismissed petition and refused leave.
Allah Wasaya Malik, Advocate Supreme Court and M. Aslam Chaudhry, Advocate-on-Record for Petitioners.
Hafeezur Rehman, Advocate Supreme Court and S.A. Aasim Jafri, Advocate-on-Record for Respondent.
Date of hearing: 1st July, 2002.
2004 S C M R 1046
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Karamat Nazir Bhandari, JJ
ABDUL AZIZ---Appellant
Versus
KHUDA DAD KHAN---Respondent
Civil Appeal No. 1336 of 1999, decided on 24th October, 2003.
(On appeal from the judgment and decree, dated 10-12-1998 passed by a learned Single Judge of Lahore High Court, Rawalpindi Bench in R.S.A. No. 68 of 1985).
Civil Procedure Code (V of 1908)---
----S.100---Constitution of Pakistan (1973), Art. 185(3)---Decree challenged in second appeal was that of variance---Leave to appeal was granted by Supreme Court to consider question, whether High Court, while deciding second appeal, could not interfere without examining, and assessing evidence both oral and documentary, if so, what was the effect of omission to examine record by High Court.
Gulzarin Kiani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.
Hafiz S.A. Rehman, Senior Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondent No. 1.
Date of hearing: 24th October, 2003.
2004 S C M R 1049
[Supreme Court of Pakistan]
Present: Javed Iqbal, Falak Sher and Karamat Nazir Bhandari, JJ
MUHAMMAD YOUSAF---Petitioner
Versus
Mst. MAQSOODA ANJUM and others---Respondents
Civil Petition No. 810-L of 2003, decided on 12th May, 2003.
(On appeal from the judgment, dated 19-2-2003 of the Lahore High Court, Lahore passed in Writ Petition No. 2067 of 2003).
Civil Procedure Code (V of 1908)-----
----O.XLI, R.27---Production of evidence in appeal---Private documents (i.e. agreement and receipts), production of---Such documents not produced before Trial Court due to negligence of counsel were sought to be produced as additional evidence in Appellate Court ---Validity--Additional evidence could not be received to fill up lacuna or provide for deficiency in the case of a party-- -Additional evidence could be permitted, if Court needed same for purposes of disposal of case---Party could not be permitted to produce private documents as additional evidence in order to fill up a lacuna or provide for deficiency in the case---Negligence of party's counsel would not be a good reason for grant of permission to adduce additional evidence---Party might proceed against his counsel for such negligence.
Saif-ul-Haq Ziya, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Petitioner.
Nemo for Respondents.
Date of hearing: 12th May, 2003.
2004 S C M R 1050
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Faqir Muhammad Khokhar, JJ
ABID ARIF NOMANI and others---Petitioners
versus
CHIEF ADMINISTRATOR, AUQAF, PUNJAB and others---Respondents
Civil Petitions Nos. 1.268-L and 1,084-L of 1999, decided on 15th January, 2004.
(On appeal from judgment, dated 3-5-1999 of the Lahore High Court, Lahore passed in Writ Petition No. 2439/90, 2727/90 and 4499 of 1990).
(a) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---
----S.24---West Pakistan Consolidation of Holdings Rules, 1960, R.27--Consolidation proceedings---Sanction by Additional Deputy Commissioner/Collector (Consolidation) for exchange of waqf land with private land---Validity---Landowner could not alienate his holding during consolidation proceedings - without sanction of Consolidaticidi Officer---Registrar or Sub-Registrar would refuse registration of document relating to transfer of land or 'any interest therein without written permission, of Consolidation Officer allowing such transfer---Neither Waqf deed was in existence nor exchange of Waqf land had been authorized by Court of competent jurisdiction---No sanction or permission had been obtained from Consolidation Officer being a competent authority---Sanction by Additional Deputy Commissioner/Collector (Consolidation), held, , was invalid in circumstances.
Section 208 of the Principles of Mahomedan Law by D.F. Mullah, as revised by late M. Hidayatullah, a former Chief Justice of India; Digest of Mohammadan Law, Vol. 1 by Neil B.E. Baillie, 2nd Edition p. 605; "Anglo-Muhammadan Law, A Digest" 6th Edition, p. 37% by Wilson as revised by Allama Yousaf Ali and Mst. Kaniz Begum and others v. Mst. Akbar Jan and another 1984 SCMR 1493 rel.
(b) Islamic Law---
---- Waqf---Mutawalli or Sajjada-Nashin, office of---Not hereditar--Principles ---Duties and functions of Mptawalli or Sajjada-Nashin--Scope.
Under Muhammadan Law, the office of a Mutawalli or Sajjada-Nashin, as the case may be, is not hereditary. In such cases one must look to the substance of the functions actually performed by a Mutawalli or Sajjada-Nashin and not merely to the nomenclature by which a holder of a particular office is called.
Generally speaking the privilege or initiation of making Murids and imparting to them spiritual knowledge, is one of the functions, which a Sajjada-Nashin performs or is supposed to perform. The endowment is maintained by grants of land to the sharines by pious Muslims. He is head of the institution of Khankah or Dargah. The goverance (Towliat) of the endowment is in his hands; .he is a Mutawalli with extra duty of imparting spiritual instruction to those, who seek it. The property of the "shrine" is Waqf, tied up to the ownership of God. The appointment of the Sajjada-Nashin is regulated by usage and practice. The duties in connection with the "shrine", apart from giving spiritual instructions, consist in the due observance of the annual ceremonies at the tomb of the saint, the distribution of charity at fasts and festivals, the celebration of the birthday of the Holy Prophet (p.b.u.h.) and performance of other rites and ceremonials prescribed either by the Islamic Law or by usage and practice.
Ahmad Khan v. Muhammad Shafi 1991 SCMR 352; Mian Ghulam Ahmad v. Muhammad Sarwar and others 1968 SCMR 573; Asif A.A. Fyzee in his book titled "cases in the Muhammadan Law of India and Pakistan 1965 Edition p. 384; Khawaja Muhammad Hanif v. Mian Mahmud` and others AIR 1922 PC 384; Sri Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar and others AIR 1922 PC 123; Sardar Ali Shah v. Gehne Shah AIR 1933 Lah. 444 and Gahne Shah v. Maula Shah AIR 1930 Lah. 728 ref.
Malik. Muhammad Nawaz, Advocate Supreme Court for Petitioners.
Ch. Bashir Ahmad, Advocate Supreme Court for Respondent No
Ms. Afshan Ghazanfar, A.A.G. Punjab for Respondent No.2
Date of hearing: 15-1-2004.
2004 S C M R 1059
[Supreme Court of Pakistan]
Present: Tanvir Ahmad Khan and Khalil-ur-Rahman Ramday, JJ
ABDUL GHANI---Petitioner
versus
KHALIL AHMAD through Legal Heirs---Respondents
Civil Petitions for Leave to Appeal Nos.3420-L and 3421-L of 2001, decided on 11th April, 2003.
(On appeal from the consolidated judgment, dated 1-8-2001 passed by the Lahore High Court, Bahawalpur Bench in Civil Revisions Nos.270-D of 1990 and 271-D of 1990).
(a) Qanun-e-Shahadat (10 of 1984)---
----Document, execution of---Proof---Where plaintiff had produced convincing evidence to substantiate execution of a document, then mere denial of defendant would not shatter same without substantiating same from record.
(b) Colonization of Government Lands (Punjab) Act (V of 1912)---
----S.19---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan (1973), Art. 185(3)---Suit for declaration---Plaintiff and defendant being brothers jointly purchased state land in defendant's name---Defendant through agreement acknowledged half share of plaintiff and delivered him his share of land---Plaintiff filed suit when later on dispute arose between two brothers---Trial Court decreed suit---Appellate Court dismissed suit, which judgment was upheld by High Court in revision---Validity---Plaintiff had produced convincing evidence to substantiate execution of agreement---Mere denial of defendant would not shatter same, unless and until same was substantiated from record---None of the forums below had doubted execution of agreement---Findings of Appellate Court affirmed by High Court were that such agreement had been c :eluted without securing prior permission from Collector under S. 19 of Colonization of Government Lands (Punjab), Act, 1912--Defendant could not back out from agreement by pleading that same was violative of S.19 of the said Act---Equities were in favour of plaintiff, who had successfully substantiated execution of agreement by defendant---Delivery of possession of his share of land to defendant as co-sharer had been proved through Revenue Record as well as oral evidence---Supreme Court accepted appeal, set aside impugned judgments of High Court and Appellate Court and decreed suit.
M. Aftab Iqbal Chaudhry, Advocate Supreme Court for Petitioner.
Jafar Hashmi, Advocate Supreme Court and Ch. Talib Hussain, Advocate-on-Record for Respondents.
Date of hearing: 11th April, 2003.
2004 S C M R 1063
[Supreme Court of Pakistan]
Present: Munir A.. Sheikh and Khalil-ur-Rahman Ramday, JJ
AMJAD ALI MEO and others---Petitioners
versus
ELECTION TRIBUNAL and others---Respondents
Civil Petition for Leave to Appeal No. 243-L of 2003, decided on 28th May, 2003.
(On appeal from the judgment, dated 17-12-2002 passed by the Lahore High Court in Writ Petition No. 18068 of 2002).
Punjab Local Government Elections Rules, 2000---
----Rr. 39 & 70---Constitution of Pakistan (1973), Art. 185(3)--Recounting of votes---Plea of ballot papers bearing double stamps not raised in application made before Presiding Officer---Election Tribunal after recording evidence, inferred that 52 ballot papers were validly cast in favour of respondents as they did not bear double stamps at the time of initial counting by Presiding Officer and double stamps were put thereon before they were sealed in the sealed cover---Validity---Silence of petitioners in their application seeking re-counting about nature of invalidity was of significance---Ground of double stamps, if had been noticed by polling agents and had any truth, then they would have objected to same and informed petitioners, who should have incorporated such fact in application---Respondents would succeed by a margin of 3 votes, if 11 ballot-papers not bearing prescribed stamps counted in their favour, were excluded---Supreme Court dismissed petition and refused leave to appeal.
Amir Alam Khan, Advocate Supreme Court and Mahmood A Qureshi, Advocate-on-Record for Petitioners.
Abdus Saleem Chaudhry, Advocate Supreme Court for Respondents.
Date of hearing: 28th May, 2003.
2004 S C M R 1065
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Faqir Muhammad Khokhar, JJ
RAFIQUE AHMED KHAN---Petitioner
versus
PROVINCE OF PUNJAB through Secretary, Education and others---Respondents
Civil Petition No. 1810-L of 2000, decided on 6th May, 2003.
(On appeal from the judgment, dated 16-2-2000 of the Lahore High Court. passed in R.F.A. No.237 of 1996).
Malicious prosecution----
----Proof---Pre-requisites--No allegation of specific mala fide on account of any personal grudge attributed to any of the defendants which was basis for registration of a criminal case against the petitioner---Case was registered on the basis of the complaint received by Martial Law Authorities who had directed the authorities to get a criminal case registered against the petitioner---Court convicted the accused but acquitted in appeal on the ground that it was a case of civil liability--Petitioner filed suit for damages on the ground of malicious prosecution--Suit was dismissed by Trial Court and appeal was dismissed by High Court---Validity---Such registration of case would not by itself be proof of the same being malicious unless it was proved through evidence that the same was motivated by personal grudge against the petitioner--Appellate Court had not found that the amount, the subject matter of F.I.R., was not due from the petitioner rather a finding was recorded that the department could recover the excess amount by resorting to the civil proceedings---If the authorities in Education Department on the direction of Martial Law Authorities had got a criminal case registered, the same could not be malicious prosecution, particularly when the Trial Court convicted the petitioner which itself was proof of the fact that there existed reasonable grounds to lodge F. I. R. ---Judgments and decrees passed by the Trial Court and High Court were maintained.
Syed Shamim Abbas Bokhari, Advocate Supreme Court for Petitioner.
Nemo for Respondents.
Date of hearing: 6th May, 2003.
2004 S C M R 1068
[Supreme Court of Pakistan]
Present: Tanvir Ahmad Khan and Falak Sher, JJ
SHAUKAT ALI alias SHOKA---Petitioner
versus
THE STATE---Respondent
Criminal Petition No.520-L of 2003, decided on 25th November, 2003.
(On appeal from the order of the Lahore High Court, Lahore, dated 14-7-2003 passed in Criminal Miscellaneous No.2224-B of 2003).
Criminal Procedure Code (V of 1898)---
----S.497(1), third proviso---Penal Code (XLV of 1860), Ss. 392, 411 & 412---Constitution of Pakistan (1973), Art. 185(3)---Bail, refusal of--- Absconder---Hardened and desperate criminal---Habitual offender--Accused was involved in seven criminal cases including murder cases and was a desperate and hardened criminal and also remained fugitive from law in the same cases---Although the accused was a councillor of his Illaqa but he depended on ransom money for his living and had made lives of many others miserable---Recovery of cash amount was also effected from him---Accused failed to point out any legal infirmity in the order of High Court refusing bail to the accused, warranting-interference by Supreme Court---Bail was declined by Supreme Court---Leave to' appeal was refused.
Muhammad Afzal Sandhu, Advocate Supreme Court for Petitioner.
Muhammad Hanif Khatana, Addl. A.-G., Punjab for the State.
Muhammad Arif Ch. Advocated Supreme Court and Ch. Talib Hussain, Advocate-on-Record for Complainant.
Date of hearing: 25th November, 2003.
2004 S C M R 1070
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Sardar Muhammad Raza Khan, JJ
MUHAMMAD ZUBAIR---Petitioner
versus
Mian MUHAMMAD ZIA and 7 others---Respondents
Civil Petition No.725-P/2003, decided on 10th February, 2004.
(On appeal from the judgment of the Peshawar High Court, Peshawar, dated 3-11-2003 passed in F. A. O. No. 226 of 1998).
(a) Cantonments Rent Restriction Act (XI of 1963)---
----S. 17(8)(9)---Constitution of Pakistan (1973), Art. 185(3)---Tentative rent assessment---Striking off defence---Failure to work out arrears of rent---Disputed covered area. of the premises---Non deciding the miscellaneous applications before striking off defence---Tenant disputed the covered area under his possession and also disputed the rate of monthly rent---Rent Controller appointed Local Commission to measure the area of shop in possession of the tenant and also directed to calculate the arrears of rent in presence of counsel of both the parties---Tenant objected to the area calculated by the Local Commission and also informed the Rent Controller regarding non association of the counsel at the time of calculating the arrears of rent---Rent Controller, without disposing of the applications filed by the tenant in that regard, struck off his defence and eviction order was passed---Order passed by the Rent Controller was maintained by High Court---Plea raised by the tenant was that non-association of the counsel by the Local Commission was noncompliance of the order passed by the Rent Controller and defence could not be struck off without disposing of the applications filed by the tenant--Validity---Exact amount of arrears of rent was never worked out jointly by the counsel of the parties despite applications of tenant to that effect, hence the tenant could not be penalized for the non-compliance of the conditional order when the condition had not been complied with---Rent Controller, before passing the penal order against the tenant was bound to first decide the miscellaneous applications filed by the tenant which remained undecided---Was incumbent upon the Rent Controller to have first resolved the controversy about the area of the shop and then to have determined tentative rent in specific amount and the exact period in terms of month and year for which the rent was due and thereafter pass order of deposit of specific amount regarding arrears directing the tenant to deposit the same before specified date and also to deposit monthly tentative rent which had become due---Non-compliance of the order passed under S.17(8) of Cantonments Rent Restriction Act, 1963, entailed penal consequences under S.17(9) of the said Act therefore, the Rent Controller had to be very careful in passing an order under S.17(8) of the said Act and its provisions must be strictly construed as any, legal defect, infirmity or vagueness in the order would render the same as of no legal consequence being without lawful authority---Supreme Court set aside the order passed under S.17(8) of Cantonment Rent Restriction Act, 1963, by the Rent Controller, converted the petition for leave to appeal into appeal and remanded the matter to Rent Controller for decision on merits---Appeal was allowed.
Habib Bank Ltd. v. Amanullah 1986 CLC 2917, Saat Muhammad v. Muhammad Saleem Qureshi PLD 1988 Quetta 42 and Tauqeer Shahid v. Additional District Judge and others 1993 CLC 2435 ref.
(b) Cantonments Rent Restriction Act (XI of 1963)---
----S. 17(8)---Tentative rent order---Principles---If the order of deposit of rent was ambiguous, vague, conditional,, defective and capable of more than one interpretations, such order would be invalid and void and all subsequent orders passed on the basis of such order would be without lawful authority.
Muhammad Jamil Khan, Advocate Supreme Court for Petitioner.
M. Sardar Khan, Senior Advocate Supreme Court for Respondents.
Date of hearing: 10th February, 2004.
2004 S C M R 1077
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Sardar Muhammad Raza Khan, JJ
MUHAMMAD AKHTAR SHIRANI and others---Petitioners
versus
PUNJAB TEXT BOOK BOARD and others---Respondents
Civil Review Petition No.73-L of 2001, decided on 1st April, 2004.
(On appeal against the judgment, dated 27-7-2001 passed by this Court in Civil Petitions No.2215-L and 2259-L of 2001).
(a) Punjab Text Book Board Employees Service Regulations, 1980--
----Regln. 11---Constitution of Pakistan (1973), Art. 188---Supreme Court Rules, 1980, O.XXVI, R.1---Review of judgment---Rectification of error of record---Illegal appointments---Reinstatement in service-- While disposing of Civil Petition for Leave to Appeal the conclusion of High Court escaped notice of Supreme Court for the reason that at the leave granting stage petitioners could not file concise statement and their counsel verbally emphasized the question of discrimination with vehemence but the same was not entertained for want of materialSuch material was produced before High Court who, on the basis of the same had concluded that 304 employees of the Punjab Text Book Board who were still working, had been appointed contrary to Regln. No.11 of Punjab Text Book Board Employees Service Regulations, 1980---Such finding of High Court had not been controverted either at the time of hearing of Civil Petitions for Leave to Appeal before Supreme Court or at the time of arguments by the counsel appearing for the Board-- Counsel for the Board had conceded that a good number of employees whose appointments had also taken place on the recommendations of the authority other than the Chairman of the Board were in service-- Effect---In such view of the matter an error seemed to be apparent on the face of the record in judgment which called for rectification---Judgment passed by Supreme Court was recalled and Civil Petitions filed by the Board were dismissed---Supreme Court directed the Board to reinstate the employees from the date of their removal from service---Review petition was allowed.
Sui Southern Gas Company Ltd. v. Engineer Naraindas and others 2001 PLC (C.S.) 743 and Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development and others PLD 1995 SC 530 ref.
(b) Public functionaries---
---- Running the affairs of State---Illegal orders, implementation of- Principles---Supreme Court had noted with concern that departmental authorities responsible to run its affairs submitted to whims and wishes of their superiors and had never felt hesitation in implementing even an illegal order, knowing well that it had no legal sanction and if such order was implemented it was bound to give rise to a number of complications in future---Supreme Court, time and again, had emphasized that the departmental functionaries were only obliged to carry out lawful orders of their superiors and if they were being pressurized to implement an illegal order, they should put on record their dissenting note and if such practice was followed chances of issuing/passing illegal orders would be minimized.
(c) Civil service---
---- Wrong exercise of power---Illegal appointments---Penalizing petty employees---Validity---Beneficiary of illegal appointment cannot be blamed alone because primarily the authority who had ' actually wrongfully exercised its powers, for the reasons known to it, was bound to be held responsible for the same---Instead of penalizing the petty employees like Chowkidar, Naib-Qasid, junior clerk etc. who had to earn livelihood to support their families and if after having served for a long period they were removed from service discriminately, such action would not promote the cause of action and it would give rise to a number of problems---Instead of removing the employees from service, action should have been taken against the authority who wrongly exercised its powers.
Managing Director, SSGC Ltd. v. Ghulam Abbas PLD 2003 SC 724 rel.
Hafiz Tariq Nasim, Advocate Supreme Court and Tanveer Ahmed, Advocate-on-Record (absent) for Petitioners.
Muhammad Arif Raja, Advocate Supreme Court and Ch. Muhammad Latif, Advocate-on-Record (absent) for Respondents Nos. l to 3
Muhammad Zaman Bhatti, Advocate Supreme Court for Respondents Nos. 4 and 5.
Date of hearing: 1st April, 2004.
2004 S C M R 1084
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Sardar Muhammad Raza Khan, JJ
ZULQARNAIN and 2 others---Appellants
Versus
SURBULAND KHAN and another---Respondents.
Civil Appeal No. 1859 of 2001, decided on 1st April, 2004.
(On appeal from the judgment/order, dated 3rd May 2001 passed by Lahore High Court, Rawalpindi Bench in R.S.A. No.23 of 1988).
(a) Specific Relief Act (I of 1877)---
----S. 12---Contract Act (IX of 1872), S.62---Specific performance of agreement to- sell---Contract---Principle of novation---Applicability--Defendant entered into agreement to sell two properties to the plaintiffs and earnest money was also received---Later on plaintiffs intended to purchase only one property and allegedly another agreement was executed between the parties---Trial Court dismissed the suit but Appellate Court allowed the appeal and decreed the suit---High Court accepting the assertions of defendant had concluded that in view of tile execution of later agreement, earlier/original agreement to .sell stood cancelled---High Court in exercise of appellate jurisdiction allowed the appeal and judgment and decree passed by the Trial Court was restored--Validity---Before pressing into service the principle of S.62 of Contract Act, 1872, the High Court should have examined as to whether the plaintiffs had validly rescinded the original agreement to sell allegedly on having executed the subsequent agreements---Was obligatory upon the defendant to establish that the plaintiffs by executing subsequent agreement had agreed to substitute the original agreement to sell--Breach of original agreement, had been alleged, in the present case, therefore, it would not be a case of novation of a contract---Execution of subsequent agreement had no effect of novation on the original contract executed by the parties---Plaintiffs could legitimately enforce the original agreement at their discretion to the extent of one property because they themselves had abandoned their claim regarding the other property mentioned in the original agreement---Judgment passed by High Court was set aside and Supreme Court directed the defendant to execute sale-deed in favour of the plaintiffs---Appeal was allowed.
Kishen Lal v. Gohli AIR 1938 Lah. 757; New Standard Bank Ltd. v. Probodh Chandra AIR 1942 Cal. 87; Jainarain v. Surajmull AIR 1949 FC 211; Vishram Arjun v. I Shankariah AIR 1957 Andh Pra. 784; Karachi Municipal Corporation v. Nawab-ud-Din PLD 1961 Kar. 599; Mst. Khatoon Begum v. Mst. Barkatunisa Begum PLD 1987 Kar. 132; Muhammad Amin v. Star Oil and Ice Mills Ltd. PLD 1973 Kar. 409 and Nawab Brothers Ltd. v. Project Director 1981 CLC 638 ref.
(b) Contract Act (IX of 1872)-----
----S. 62---Novation of contract---Scope---Where a party had committed a breach with regard to the original contract, provisions of S.62 of Contract Act, 1872 were not applicable.
Vishram Arjun v. I Shankariah AIR 1957 Andh Pra. 784; Karachi Municipal Corporation v. Nawab-ud-Din PLD 1961 Kar. 599; Mst. Khatoon Begum v. Mst. Barkatunisa Begum PLD 1987 Kar. 132; Muhammad Amin v. Star Oil and Ice Mills Ltd. PLD 1973 Kar. 409 and Nawab Brothers Ltd. v. Project Director 1981 CLC 638 ref.
Syed M. Kaleem Ahmed Khurshid, Advocate Supreme Court and Syed Abdul Asim Jafri, Advocate-on-Record (absent) for Appellants.
Ch. Muhammad Nawaz Sulehria, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate-on-Record for Respondent No. 1.
Abdul Rehman Ansari, Advocate Supreme Court and Faizur Rehman, Advocate-on-Record (absent) for Respondent No.2.
Date of hearing: 1st April, 2004.
2004 S C M R 1092
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ
PURI TERMINAL LTD. ---Petitioner
Versus
GOVERNMENT OF PAKISTAN through Secretary, Ministry of Communications and Railways, Islamabad and 2 others---Respondents
Civil Petition for Leave to Appeal No.2164 of 2002, decided, on 9th April, 2004.
(On appeal from the judgment, dated 30-9-2002 of the High Court of Sindh, Karachi passed in H.C.A. No.34 of 2001).
(a) Civil Procedure Code (V of 1908)-----
----O. XXXIX, Rr. 1 & 2---Interim injunction, grant of---Principles--Injunction is a form of equitable relief and is to be issued in aid of equity and justice but not in aid of injustice---For grant of such relief, it is mandatory not only to establish that petitioner has a prima facie case, but also that balance of convenience is on his side and that he would suffer irreparable injury/loss unless he is protected during the pendency of suit.
(b) Specific Relief Act (I of 1877)-----
----S. 56(i)---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2--Constitution of Pakistan (1973), Art. 185(3)---Interim injunction, grant of---Other equitable relief, availability of---Plaintiff also claimed compensation/damages as an alternative relief in suit---Effect---No injunction could be granted under S.56(i) of Specific Relief Act, 1877--Two Courts below after examining material before them had come to the conclusion that prima facie case was not established and balance of convenience was also not in favour of the plaintiff---Both the Courts below had rightly declined to grant the interim injunction---Supreme Court refused, to grant interim injunction to the plaintiff---Leave was refused.
Gohar Rehman and others v. Liaqat Ali and others 1991 SCMR 305 fol.
Messrs Pacific Multinational (Pvt.) Ltd. v. Inspector General of Police, Sindh Police Headquarters and 2 others PLD 1992 Kar. 283; Javed Hotel (Pvt.) Ltd. v. Capital Development Authority, Islamabad through Chairman and another PLD 1994 Lah. 315 and Messrs Arif Builders and Developers v. Government of Pakistan and 4 others PLD 1997 Kar. 627 ref.
Ch. Aitzaz Ahsan, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.
Nasir Saeed Sheikh, Standing Counsel, M. Abbas Mirza, Advocate Supreme Court and Muhammad Akram, Advocate-on-Record for Respondent No. 1.
Syed Qalb-e-Hasan, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Respondent No.2.
S.M. Zafar, Senior Advocate Supreme Court, M. Bilal, Senior Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate-on-Record for Respondent No.3.
Date of hearing: 18th March, 2004.
2004 S C M R 1100
[Supreme Court of Pakistan]
Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ
IRSHAD AHMED---Petitioner
Versus
THE STATE---Respondent
Criminal Petition No. 255-L of 2002, heard on 20th January, 2003
(On appeal from the judgment, dated 14-3-2002 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.321-M of 2002 in Criminal Appeal No.760 of 1998).
Penal Code (XLV of 1860)-----
----S. 308---Criminal Procedure Code (V of 1898), S.369---Constitution of Pakistan (1973), Art. 185(3)---Earlier, judgment of High Court modifying the Trial Court's judgment was not open to review having attained finality in terms of S.369, Cr.P.C.---Even otherwise, the accused having attained majority at the time of the judgment of Trial Court was no longer a minor and the first proviso of S.308, P.P.C. which required another person to make payment of Diyat amount as a substitute for a minor convict was not attracted to the facts of the case--Impugned order not suffering from any infirmity case was not fit for grant of leave to appeal---Petition was dismissed accordingly.
Abdul Samad Hashmi, Advocate Supreme Court for Petitioner.
Nemo for Respondent.
Date of hearing: 20th January, 2003.
2004 S C M R 1102
[Supreme Court of Pakistan]
Present: Khalil-ur-Rehman Ramday and Muhammad Nawaz Abbasi, JJ
SADAR DIN---Petitioner
Versus
Mst. KHATOON and others---Respondents
Civil Petition No. 2072-L of 1999, decided on 19th July, 2002.
(On appeal from the judgment and decree, dated 4-10-1999 passed by the Lahore High Court in Civil Revision No. 1354 of 1992).
Contract Act (IX of 1872)------
----S. 25---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan (1973), Art. 185(3)---Agreement without consideration---Dispute was with regard to ownership of half portion of the suit house---Plaintiffs claimed to be the owners of the half portion of the house as the same was jointly owned by their deceased father and defendant as both of them were real brothers---Defendant resisted the suit on the ground that the portion of the house had been relinquished by the deceased father of plaintiffs in his favour---Trial Court decreed the suit but Appellate Court allowed the appeal and the suit was dismissed---High Court in exercise of revisional jurisdiction upheld the decision of the Trial Court--Validity---High Court had rightly found that the agreement through which father of the plaintiffs had allegedly relinquished his share is the property did not deserve any credit because the agreement of relinquished was without any consideration---Defendant failed to prove on record that the share was relinquished on the basis of some consideration---Agreement relied on by the defendant was nullity in the eye of law on account of S. 25 of Contract Act, 1872---Supreme Court declined to interfere with the judgment passed by High Court ---Leave to appeal was refused.
Qazi Khurshid Alam Siddiqui, Advocate Supreme Court for Petitioner.
Malik Allah Wasaya, Advocate Supreme Court and Tanvir Ahmad Khan, Advocate-on-Record for Respondents.
Date of hearing: 19th July, 2002.
2004 S C M R 1104
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Tanvir Ahmed Khan, JJ
Mst. SAKEENA and others---Petitioners
Versus
Mst. AMEERAN MAI and others---Respondents
Civil Petition No. 1866-L of 1999, decided on 25th June, 2002.
(On appeal from the judgment, dated 17-8-1999 passed by Lahore High Court, Multan Bench in Civil Revision No. 451-D of 1999).
West Pakistan Land Revenue Act (XVII of 1967)-----
----S. 45---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan (1973), Art. 185(3)---Mutation of inheritance---Ousting co-owners from the mutation---Concurrent findings of fact by the Courts below---Dispute was with regard to mutation attested in favour of defendant whereby the plaintiffs, who were real sisters of the defendant, were excluded from them mutation---Defendant failed to bring on record any document on the basis of which the mutation was entered---Parties were co-sharers and the defendant was paying share of crops to the plaintiffs---Trial Court decreed the suit in favour of plaintiffs and judgment and-decree was maintained by Appellate Court as well as by High Court ---Validity--Defendant in an illegal manner secured the disputed mutation simply to oust his own sisters from inheritance which they were entitled under the law---Two Courts below after scanning the entire evidence brought on record decreed the suit and High Court had rightly maintained the determination by dismissing the revision of the defendant in limine--Leave to appeal was refused.
Ch. Inayat Ullah, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 25th June, 2002.
2004 S C M R 106
[Supreme Court of Pakistan]
Present: Javed Iqbal, Tanvir Ahmad Khan and Faqir Muhammad Khokhar, JJ
GHULAM RASUL---Petitioner
Versus
THE STATE---Respondent
Criminal Petition No. 383-L of 2002, decided on 6th January, 2003.
(On appeal from the judgment, dated 10-4-2002 passed by the Lahore High Court, Lahore in Criminal Appeal No. 1140 of 1999).
Control of Narcotic Substances Act (XXV of 1997)-----
----S. 9(c)---Constitution of Pakistan (1973), Art. 185(3)---Trial Court as well as High Court had believed the evidence of Sub-Inspector of police who had conducted the raid and effected the recovery of the narcotics on the pointation of accused---Chemical Examiner's report regarding the recovered material was positive---Defence evidence was not found by the Trial Court to be trustworthy---Non-association of private persons by the raiding party at the time of conducting raid and search of the house of accused in the peculiar circumstances of the case was not material---No question in this behalf was even put by the defence to the Investigating Officer---Objection as to the non-production of the case property at the time of trial was not taken either before the trial Court or before High. Court at any stage of the proceedings---Impugned judgment was not shown to be suffering from any legal or factual infirmity so as to warrant any interference by Supreme Court---Leave to appeal was refused to accused in circumstances.
Gulab v. State 1992 SCMR 1502 ref.
C.M. Sarwar, Advocate Supreme Court for Petitioner.
Nemo for Respondent.
Date of hearing: 6th January, 2003.
2004 S C M R 1109
[Supreme Court of Pakistan]
Present: Javed Iqbal and Tanvir Ahmed Khan, JJ
ATTA ULLAH---Petitioner
Versus
GOVERNMENT OF PAKISTAN through Secretary, Ministry of Religious Affairs and Minority Affairs, Islamabad and others---Respondents
Civil Petition for Leave to appeal No. 1623/L of 2002, decided on 23rd May, 2002.
(On appeal from the order, dated 25-4-2002 of the Lahore High Court, Lahore passed in Writ Petition No. 493 of 1985).
Constitution of Pakistan (1973)-----
----Arts. 185(3) & 199----Constitutional petition, restoration of ---Un explained delay of more than 2-1/2 years---Constitutional petition was dismissed by the High Court for non-prosecution on 20-7-1999, and the petitioner filed application for its restoration on 22-4-2002, raising the plea that due to illness of his counsel, he could not put in appearance--High Court dismissed the application for the reason that notices had been issued to the parties but the petitioner remained un represented and the application was time barred---Validity---No date or month had been stated by the petitioner nor there was any specific averment as to when the petitioner learnt of the dismissal of the Constitutional petition where the party approaches the Court beyond the period of limitation, such party is required to explain the delay of each day---Supreme Court declined to interfere with the order passed by High Court---Leave to appeal was refused.
Zahid Hussain Khan, Advocate Supreme Court for Petitioner.
Nemo for Respondents.
Date of hearing: 23rd May, 2002.
2004 S C M R 1111
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
MUHAMMAD ALI ---Petitioner
Versus
MAHNGA KHAN---Respondent
Civil Petition for leave to appeal No. 1759/L of 1999, decided on 20th June, 2002.
(On appeal from the order, dated 14-10-1999 of the Lahore High Court, Lahore passed in Civil Revision No. 886 of 1999).
(a) Specific Relief Act (I of 1877)-----
----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Constitution of Pakistan (1973), Art. 185(3)---Suit for declaration and permanent injunction ---Interim injunction, grant of---Plaintiff claimed four sale deeds to be Benami and that defendant was his tenant--Trial Court granted temporary injunction directing defendant not to alienate suit property---Order of Appellate Court setting aside interim order was maintained by High Court in revision filed by plaintiff--Validity---Registered sale deeds had prima facie established title of defendant to suit land---Plaintiff could not be said to have a prima facie case, unless such deeds were displaced---Plaintiff had filed suit after more than twenty six years of first registered transaction and more than twenty four years after last transaction---Such inaction on the part of plaintiff would be taken a circumstance going against him---Mere possession would not entitle plaintiff to interim injunction---Supreme Court dismissed petition and refused leave.
(b) Civil Procedure Code (V of 1908)-----
----O. XXXIX, Rr. 1 & 2---Mere possession would not entitle plaintiff to grant of interim injunction.
Ch. Khan Muhammad Bajwa, Advocate Supreme Court with S. Abul Aasim Jafri, Advocate-on-Record for Petitioner.
Nemo for Respondent.
Date of hearing: 20th June, 2002.
2004 S C M R 1113
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ
MUHAMMAD IMRAN YOUSAF---Petitioner
Versus
MUHAMMAD AKRAM and others---Respondents
Criminal Petition No. 551-L of 2001, decided on 4th April, 2002.
(On appeal from the judgment of the Lahore High Court, Multan Bench, dated 23-7-2001 passed in Criminal Appeal No. 367/1996 (Murder Reference No. 96 of 1997).
Penal Code (XLV of 1860)-----
----S.302---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to the complainant to consider whether the High Court was justified in reducing the sentence of the accused from death to imprisonment for life.
Sh. Maqbool Ahmed, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.
Nemo for Respondents
Date of hearing: 4th April, 2002.
2004 S C M R 1114
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Sardar Muhammad Raza Khan, JJ
MUHAMMAD SARWAR (deceased) through Legal Heirs MANZOORAN BIBI and others --Petitioners
Versus
MUHAMMAD AKBAR and others---Respondents
Civil Petition for Leave to Appeal No. 2348-L of 2001, decided on 20th June, 2002.
(On appeal from the judgment, dated 14-5-2001 of the Lahore High Court, Lahore in Regular Second Appeal No. 47 of 1980).
Specific Relief Act (I of 1877)-----
----S.8---Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), S.30---Constitution of Pakistan (1973), Art. 185(3)--Suit for possession of evacuee property---Agreement to sell with transferee of evacuee property---Plaintiff, after obtaining decree in suit for specific performance of agreement to sell filed against transferee of evacuee property, was declared its owner and sale deed was registered in his favour in execution proceedings---Plaintiff thereafter filed suit for possession against defendant---Trial Court dismissed suit on the ground that no notice was issued under S.30 of Displaced Persons (Compensation and Rehabilitation) Act, 1958---Both the Appellate Courts found that S.30 of the Act was not applicable as same was not a case of jurisdiction of Rent Controller---Validity---Plaintiff had become owner of suit property through registered deed during execution proceedings, when Settlement Laws had already been repealed---Question of applicability of S.30 of the Act, thus, did not arise---Defendant, after conceding non-applicability of S.30 of the Act before First Appellate Court, was granted 6 months time at his request, but he had failed to vacate premises for the last twenty two years---Supreme Court dismissed', petition and refused leave.
M. Anwar Sipra, Advocate Supreme Court with Ch. M. Khan Mehtab, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 20th June, 2002.
2004 S C M R 1116
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
MUHAMMAD AKBAR---Petitioner
Versus
NAWAZ and 14 others---Respondents
Criminal Petition for Leave to Appeal No. 796/L of 2001, decided on 7th June, 2002.
(On appeal from the judgment, dated 5-11-2001 of the Lahore High Court, Multan Bench, Multan passed in P.S.L.A. No. 34 of 2001).
Penal Code (XLV of 1860)-----
----Ss. 302/324/148/149---Constitution of Pakistan (1973), Art. 185(3)--Criminal Procedure Code (V of 1898), S.417(2)---Appeal against acquittal---High Court while refusing Special Leave to Appeal to complainant under S.417(2), Cr.P.C. had considered ocular evidence as well as medical evidence and concluded that the accused had earned innocence on merits---Both the cross-cases had proceeded separately and it was not necessary for the High-Court to decide both the matters together---Sessions Court on having made independent 'assessment of evidence in each case, had found that the guilt was not proved against the accused whereas the complainant was found guilty of the offence charged against him---Impugned judgment did not warrant any interference---Leave to appeal was refused to complainant accordingly.
Wazir Moral alias Wazid Ali and 13 others v. State and another 1970 SCMR 256 ref.
Raja Abdul Razzaq, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 7th June, 2002.
2004 S C M R 1118
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
MUHAMMAD BASHIR--- Petitioner
Versus
PROVINCE OF PUNJAB through COLLECTOR, DISTRICT SIALKOT and others---Respondents
Civil Petition No.1720/L of 2002, decided on 7th June, 2002.
(On appeal from the judgment order, dated 19-2-2002 passed by Lahore High Court, Lahore in R.F.A,. No. 544 of 1996).
Specific Relief Act (I of 1877)------
----S. 12---Registration Act (XVI of 1908), S.60---Constitution of Pakistan (1973), Art.185(3)---Suit for specific performance of agreement to sell---Defendant alleging agreement to be fraudulent denied its execution---Trial Court and High Court concurrently found that agreement was duly executed by defendant---Validity---Contents of agreement to sell had been proved by marginal witnesses---Agreement had been duly registered with concerned Sub-Registrar---In view of such evidence, no otter opinion could be formed except that defendant had duly executed such agreement and sold his property against sale consideration paid to him at the time of its execution---Once a transaction was completed and in pursuance whereof agreement to sell was duly executed, and sale consideration was received, then holding execution of such agreement to be the result of fraudulent transaction would not be possible for the Court---No misreading or misappreciation of evidence by both Courts was found---Supreme Court dismissed petition and refused leave.
Haji Rana Muhammad Shabbir Ahmed Khan v. Government of Punjab, Province, Lahore PLD 1994 SC 1 and Qadir Bakhsh and 10 others v. Kh. Nazim-ud-Din Khan and 4 others 1997 SCMR 1267 fol.
Malik Abdus Sattar Chughtai, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 7th June, 2002.
2004 S C M R 1120
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry and Tanvir Ahmed Khan, JJ
MUHAMMAD RIAZ BHATTI---Petitioner
Versus
FEDERATION OF PAKISTAN and another---Respondents
Civil Petition for Leave to Appeal No. 1724/L of 2002, decided on 5th June, 2002.
(On appeal from the order, dated 25-4-2002 of the Lahore High Court, Lahore, passed in Objection Case Diary No. 12040 dated 17-4-2002).
Constitution of Pakistan (1973)-----
----Arts. 199 & 185(3)---High Court (Lahore) Rules and Orders, Vol. V, Chap. 1-A, R.9---Civil Procedure Code (V of 1908), O. I, R.8--Constitutional petition filed in a representative capacity--Maintainability---Relief under Art. 199 of the Constitution could only be sought by an aggrieved person---Office of High Court had refused to accept Constitutional petition as petitioner had sought relief on the basis of vague plea---High Court after considering office objection had rightly upheld the same---Supreme Court dismissed petition.
Ch. Naseer Ahmed Bhutta, Advocate Supreme Court with S. Abul Aasim Jafri, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 5th June, 2002.
2004 S C M R 1122
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
M. SHAHID GHAFOOR---Petitioner
Versus
MUHAMMAD RASHID and others---Respondents
Criminal Petition No. 441-L of 2001, decided on 6th June, 2002.
(On appeal from the judgment/order, dated 28-3-2001 passed by Lahore High Court, Lahore in Criminal Appeal No. 210 of 1997).
Constitution of Pakistan (1973)-----
----Art. 185(3)---Appeal against acquittal---Petition was barred by 67 days ---Condonation of delay was sought on the ground that the complainant had no knowledge about the decision of the High Court--Explanation offered in the application was not acceptable because it was the duty of the complainant to remain vigilant about the proceedings pending before the High Court---Lapse of time in a criminal matter was sufficient to provide protection to the accused who had been acquitted, against further judicial process through the petition for leave to appeal---Besides, accused had already undergone imprisonment for about five months before passing of the order of High Court---Leave to appeal was declined to complainant in circumstances.
Fakhar-ud-Din v. Fazal Karim and others 1999 SCMR 795 ref.
Malik Amjad Pervaiz, Advocate Supreme Court with C.M. Latif, Advocate-on-Record for Petitioner.
Imtiaz Ali Chaudhry, A.G. (Punjab), Wali Muhammad, A.S.I. (FIA), Faisalabad and Muhammad Rashid (Respondent No. 1) for Respondents.
Date of hearing: 6th June, 2002.
2004 S C M R 1124
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
MURATAB ALI and another-- -Petitioners
Versus
LIAQUAT ALI and another---Respondents
Civil Petition for Leave to Appeal No. 1157/L of 1999, decided on 3rd June, 2002.
(On appeal from the judgment, dated 11-5-1999 of the Lahore High Court, Lahore, passed in Civil Revision No. 649 of 1999).
Arbitration Act (X of 1940)----
----S.34---Stay of suit on application of a party who though arrayed as defendant in suit, but was not party to partnership agreement containing arbitration clause---Validity---Suit had rightly beers stayed and no exception could be taken to such order.
Amanullah Piracha and another v. Mrs. Tasneem Baig and another 1988 M L D 1552 ref.
Yousaf Kazmi, Advocate Supreme Court for Petitioners.
Nemo for Respondents.
Date of hearing: 3rd June, 2002.
2004 S C M R 1125
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui and Faqir Muhammad Khokhar, JJ
MUHAMMAD ABBAS and another---Petitioners
Versus
THE STATE----Respondent
Jail Petition No. 113 of 2001, decided on 19th March, 2002.
(On appeal from the order, dated 11-7-2001 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur in Criminal Appeal No. 65 of 2000).
Penal Code (XLV of 1860)-----
----Ss. 302/34, 324/34, 392/34, 337 & 411---Constitution of Pakistan (1973), Art. 185(3)---Eye-witnesses had consistently stated that the deceased was fired at by the accused---Crime empties secured from the spot had matched with the weapons of offence used and recovered from the accused---Report of the Forensic Science Laboratory was positive--Prosecution witnesses had duly identified the accused during identification parade---Prosecution witnesses had no previous enmity or reason for false implication of accused---Ocular testimony was supported by medical evidence and the recoveries of the looted property from the possession of accused---Leave to appeal was refused to accused in circumstances.
Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioners.
Nemo for Respondent.
Date of hearing: 8th March, 2002.
2004 S C M R 1130
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry and Khalil-ur-Rehman Ramday, JJ
MUHAMMAD AKRAM alias RAJA---Petitioner
Versus
MUHAMMAD ISHAQUE---Respondent
Civil Petition No. 1136-L of 1999, decided on 28th May, 2002.
(On appeal from the judgment/order, dated 1-7-1999 passed by Lahore High Court, Multan Bench, Multan in Civil Revision No. 339 of 1999).
Civil Procedure Code (V of 1908)-----
----O. XIV, Rr. 1 & 5---Non-framing of issues---Effect---Allegations made in plaint were challenged in written statement---No specific issue was framed---Parties being aware of controversy led evidence, on the basis of which, case was finally decided---Validity---Open to Court to allow parties to lead evidence on such point and give decision thereon without framing any issue.
The Province of East Pakistan v. Maj. Nawab Khawaja Hasan Askary and others PLD 1971 SC 82 ref.
S. Abul Asim Jafri, Advocate-on-Record for Petitioner.
Nemo for Respondent.
Date of hearing: 28th May, 2002.
2004 S C M R 1132
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ
MUHAMMAD SHAFI and others---Petitioners
Versus
MUHAMMAD SHARIF---Respondent
Civil Petition No. 764-L of 1999, decided on 8th May, 2002.
(On appeal from the judgment, dated 6-5-1999 passed by the Lahore High Court, Lahore in Civil Revision No. 1224 of 1998).
Specific Relief Act (I of 1877)------
----S. 8---Constitution of Pakistan (1973), Art. 185(3)---Suit for possession---Courts below decreed suit while relying upon registered sale-deed of plaintiff coupled with entries in Jamabandi Register--Concurrent findings of fact were to the effect that plaintiff was lawful owner of suit-land, and status of defendant was that of trespasser--Defence plea had been rejected throughout that he had purchased suit land through unregistered sale-deed for consideration of less than Rs.100---Impugned judgments did not suffer from any legal infirmity or misreading or non-reading of evidence of any material piece of evidence---Supreme Court dismissed petition.
M. Iqbal, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Petitioners.
Nemo for Respondent.
Date of hearing: 8th May, 2002.
2004 S C M R 1134
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ
MUHAMMAD AJMAL---Petitioner
Versus
SHARIF AHMAD and others---Respondents
Criminal Petition No. 534-L of 2001, decided on 21st May, 2002.
(On appeal from the judgment/order, dated 17-7-1999 passed by Lahore High Court, Bahawalpur Bench, Bahawalpur in Criminal Appeal No. 65 of 1999 and Murder Reference No. 13 of 1999).
Penal Code (XLV of 1860)---
----S. 302(b)/34---Constitution of Pakistan (1973), Art. 185(3)--Sentence, enhancement of---Prosecution had introduced the plea of the accused to the effect that murder of the deceased had been committed on account of his illicit relations with the aunt of the accused, which fact had been established by a prosecution witness---High Court had rightly reduced the sentence of death of accused to imprisonment for life keeping in view the fact that the accused had jointly committed the murder of the deceased in order to vindicate family honour---Leave to appeal was refused to complainant in circumstances.
Abdul Haq v. State PLD 1996 SC 1 ref.
Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.
Nemo for Respondents
Date of hearing: 21st May, 2002.
2004 S C M R 1137
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ
MUHAMMAD HUSSAIN and others---Petitioners
Versus
WAHID BAKHSH (deceased) through Legal Heirs---Respondents
Civil Petition No. 656-L of 1999, decided on 2nd May, 2002.
(On appeal from the judgment, dated 16-2-1999 passed by the Lahore High Court, Multan Bench, Multan in R.S.A. No. 557 of 1972).
(a) Limitation Act (IX of 1908)-----
----S. 28 & Art. 144---West Pakistan Land Revenue Act (XVII of 1967), S.39---Qanun-e-Shahadat (10 of 1984), Art. 92---Claim of ownership on basis of adverse possession---Claim decreed by all Courts concurrently--Validity ---Plaintiff had pleaded continuous, hostile, exclusive and uninterrupted possession over suit property for more than four decades without any challenge---Copies of Jamabandi and Khasra Girdawari Registers showing defendant recorded therein as owner in possession would not by itself. establish any right, interest or title to properties described therein---Presumption of correctness attached to such entries had been adequately rebutted by plaintiff---Plaintiff had established through evidence their right and title to property beyond doubt--Exclusive possession of plaintiff over suit property was admitted by defendant's counsel---No substantial question of law of public importance was involved---Supreme Court dismissed petition and refused leave.
(b) West Pakistan Land Revenue Act (XVII of 1967)-----
----Ss. 39, 42 & 43---Entries in revenue record---Meant for fiscal purposes and not conclusive proof of ownership.
(c) Limitation Act (IX of 1908)---
----S. 28 & Art. 144---Constitution of Pakistan (1973), Art. 203-F--Adverse possession, plea of---Availability---Decree passed on 14-11-1970---Contention of defendant was that plea of adverse possession was not available to plaintiff in view of law laid down in Maqbool Ahmed v. Government of Pakistan 1991 SCMR 2063---Validity---Such law would be operative w.e.f. 31-8-1991 and would not govern past and closed transactions---Impugned decree could not be assailed on such ground.
Maqbool Ahmed v. Government of Pakistan 1991 SCMR 2063 ref.
Hameed Azhar Malik, Advocate Supreme Court with Ch. Mehdi Khan Melttab, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 2nd May, 2002.
2004 S C M R 1140
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
MALLA---Petitioner
Versus
HIDAYAT and others---Respondents
Civil Petition for Leave to Appeal No. 627-L of 1999, decided on 19th April, 2002.
(On appeal from the judgment, dated 19-2-1999 of the Lahore High Court, Lahore, passed in R.S.A. No. 5 of 1986).
Specific Relief Act (I of 1877)------
----S. 12---Transfer of Property Act (IV of 1882), Ss. 91 & 118---Suit for specific performance of agreement to sell---Plaintiff in possession of suit-land as mortgagee entered into agreement to sell with vendor--Vendor later on exchanged suit-land with defendant---Plaintiff then filed suit for specific performance of agreement to sell, whereas defendant filed suit for possession through redemption of mortgage---Trial Court decreed suit for specific performance, but dismissed suit for redemption, which judgments were upheld by Appellate Court and High Court---Validity---Agreement to sell by vendor with plaintiff and payment of sale price had been proved through independent and reliable evidence---Defendant had taken wavering stances, at one place he had sated that land was not exclusively mortgaged with plaintiff, while in appeal, he had admitted that vendor had mortgaged land with plaintiff--Was not understandable that on what basis defendant had allegedly exchanged land with vendor of which he could not get possession as same was already mortgaged with plaintiff---Concurrent findings of fact of Courts below had been affirmed by High Court, wherein no legal infirmity warranting interference could be pointed out---Supreme Court dismissed petition and refused leave.
Ch. Ghulam Rasool Warraich, Advocate Supreme Court for Petitioner.
Syed M. Zainul Abidin, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Respondents.
Date of hearing: 19th April, 2002.
2004 S C M R 1142
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, C.J., Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ
MUHAMMAD SIDDIQUE---Petitioner
Versus
THE STATE and 2 others---Respondents
Criminal Petition No. 355-L of 2001, decided on 5th March, 2002.
(On appeal from the judgment, dated 2-5-2001 of the Lahore High Court, Lahore passed in Criminal Appeals Nos. 1505/2000 and 263/2001) .
Penal Code (XLV of 1860)---
----S. 302(b)/34---Constitution of Pakistan (1973), Art. 185(3)---Appeal against acquittal---Role assigned to accused was a proverbial one and their actual involvement in the crime was not substantially proved--Accused during investigation were not found guilty of the offence--Benefit of doubt had rightly been extended to the accused by the Courts below---Impugned judgment did not warrant any interference by Supreme Court in circumstances---Leave to appeal was refused to complainant accordingly.
Sh. Masood Akhtar, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 5th March, 2002.
2004 S C M R 1144
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Tanvir Ahmed Khan, JJ
MUHAMMAD SALEEM and others---Petitioners
Versus
RASHID AHMED and others---Respondents
Civil. Petition for Leave to Appeal No. 800-L of 1999, decided on 2nd July, 2002.
(On appeal from judgment of Lahore High Court, Lahore, dated 15-3-1999 passed in Civil Revision No. 1681-D of 1998).
Civil Procedure Code (V of 1908)-----
----S.11---Resjudicata---Issue relating to ownership and title in respect of suit-land was finally heard and decided by competent Court of law--Such issue raised in subsequent suit would be hit by principle of res judicata within contemplation of S.11, C.P.C.
Rana Abdul Rahim Khan, Advocate Supreme Court for Petitioners.
Nemo for Respondents.
Date of hearing: 2nd July, 2002.
2004 S C M R 1146
[Supreme Court of Pakistan]
Present: Muhammad Bashir Jehangiri, Ch. Muhammad Arif and Rana Bhagwandas, JJ
GOVERNMENT OF PUNJAB through Secretary, Excise and Taxation, Lahore and others----Petitioners
Versus
JAMSHED WAHEED and another----Respondents
Civil Petition No. 1435 of 2001, decided on 14th June, 2001.
(On appeal from the judgment, dated 26-4-2001 of the Lahore High Court, Lahore passed in Writ Petition No. 4799 of 2001).
West Pakistan Urban Immovable Property Tax Act (V of 1958)-----
----Ss. 3, 5 & 5-A---Constitution of Pakistan (1973), Art.185(3)--Immovable property tax, assessment of---Annual rental value of property---Determination---Rate of valuation tables prepared by Deputy Commissioners for the purposes of Stamp Act, 1899, and Registration Act, 1908, were adopted by the authorities for valuation of the property for the purposes of property tax---High Court in exercise of Constitutional jurisdiction set aside such mode of valuation---Validity--Instead of making amendments in West Pakistan Immovable Property Tax Act, 1958 itself, S.5-A had only been added in the Finance Act of 1998, wherein it had only provided that the annual value of the property was to be determined on the basis of such valuation tables and for such localities as notified by or under the authority of Government---Even the mechanism provided for S.5-A of West Pakistan Immovable Property Tax Act, 1958, had not been taken into consideration by the authorities in preparing the valuation table---Authorities had wrongly followed the system of gross annual rental value in accordance with the valuation tables prepared by Deputy Commissioners for the purpose of Stamp Act, 1899, and Registration Act, 1908, and the same was not in accordance with S.5-A of West Pakistan Immovable Property Tax Act, 1958--High Court had correctly construed provisions of Ss.3, 5 and 5-A of West Pakistan Immovable Property Tax Act, 1958---All the three Ss.3, 5 & 5-R, when read conjunctively revealed that the criterion adopted for determination of the annual value of the properties was not in accordance with Ss.5 and 5-A of West Pakistan Immovable Property Tax Act, 1958---Leave to appeal was refused.
Zia Haider Rizvi, Advocate Supreme Court and C.M. Lateef, Advocate-on-Record (absent) for Petitioners.
Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Respondents.
Date of hearing: 14th June, 2001.
2004 S C M R 1150
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, C.J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ
MUHAMMAD FAREED and 2 others‑‑‑Petitioners
Versus
Mst. MARYAM JAN and another‑‑‑Respondents
Civil Petition No. 293 of 2003, decided on 16th April, 2003.
(On appeal from the judgment of Peshawar, High Court, Abbottabad Bench, dated 5‑11‑2002 passed in Civil Revision No. 279 of 1994).
North West Frontier Province Pre‑emption Act (XIV of 1950)‑‑‑--
‑‑‑‑S. 12‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Right of preemption ‑‑‑Exercise of such right on the basis of judicial determination‑‑Improvements during the pendency of litigation‑‑‑Concurrent findings of facts by the Courts below‑‑‑Suit for pre‑emption was decreed earlier in favour of pre‑emptors, on the basis of which mutation was attested in their favour‑‑‑Trial Court dismissed the present 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‑‑‑Plea raised by the vendees was that, the earlier decree in favour of the pre‑emptors had been set aside and the vendees had also made improvements over the suit‑land ‑‑‑Validity‑‑‑Pre‑emption decree in the present case could not be undone by getting the earlier decree set aside after a lapse of a period of 25 years‑‑‑Right of a person established through judicial determination and the decree passed by a Court on the basis of such right which attained finality must not be allowed to be defeated after such a long time on a technical ground‑‑Improvement of status by vendees during the pendency of pre‑emption suit would be of no use to them as the transaction of sale in favour of vendees had taken place much after the expiry of period of limitation for filing the pre‑emption suit under the provisions of North‑West Frontier Province Pre‑emption Act, 1950‑‑‑Such improvements would not defeat the superior right of pre‑emption‑‑‑Vendees failed to point out from the record that the concurrent findings of facts by two Courts below were suffering from any material defect calling for interference of Supreme Court‑‑‑Supreme Court declined to 'interfere with the judgments arid decrees passed by the two Courts below as there was no misreading or non‑reading of evidence on the part of Lower Appellate Court ‑ or revisional Court‑‑‑Leave to appeal was refused.
Muhammad Ghulam Bari, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioners.
Nemo for Respondent
Date of hearing: 16th April, 2003.
2004 S C M R 1153
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil‑ur‑Rahman Ramday, JJ
KHALID HUSSAIN ‑‑‑Petitioner
Versus
ABDUL RAZZAQ and others‑‑‑Respondents
Criminal Petition for Leave to Appeal No. 83‑L of 2003, decided on 18th March, 2003.
(On appeal from the order, dated 15‑1‑2003 of the Lahore High Court, Multan Bench, Multan, passed upon Criminal Miscellaneous No.1 of 2003 in Criminal Appeal No. 1005 of 2002).
Penal Code (XLV of 1860)‑‑‑--
‑‑‑‑S. 302(b)‑‑‑Criminal Procedure Code (V of 1898), S.426‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑High Court through the impugned order had suspended the sentence of imprisonment for life awarded to accused under S.302(b), P.P.C.‑‑‑Accused had neither caused any injury to the deceased nor to any prosecution witness and he himself had received two serious sharp‑edged weapon injuries which had not been explained by the prosecution‑‑‑Discretion exercised by the High Court under S.426, Cr.P.C. did not suffer from any illegality or legal infirmity‑‑‑Leave to appeal was refused to accused accordingly.
Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court and Faizur Rehman, Advocate‑on‑Record for Petitioner.
Muhammad Sharif Chohan, Advocate Supreme Court for Respondent No. 1.
Date of hearing: 18th March, 2003,
2004 S C M R 1154
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil‑ur‑Rahman Ramday, JJ
Messrs MOLASSES EXPORT CO. (PVT.) LTD. ‑‑‑Petitioner
Versus
RAZA MUHAMMAD KHAN and others‑‑‑Respondents
Civil Petition for Leave to Appeal No. 2495‑L of 2000, decided on 24th April, 2003.
(On appeal from the judgment, dated 12‑4‑2000 passed by the Lahore High Court, Multan Bench in Writ Petition No. 11645 of 1999).
Punjab Zila Councils (Goods Exit Tax) Rules, 1990‑‑‑--
‑‑‑‑Preamble‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Supreme Court Rules, 1980, O.XIII, R.1‑‑‑Collection of Exit Tax on goods meant for export from country‑‑‑Refund of such tax demanded from contractor of Zila Council as such goods were exempt from levy of Exit Tax‑‑‑High Court accepted Constitutional petition of contractor and declared such demand as illegal‑‑‑Contention of payee of such tax was that such demand of refund from contractor was legal; that Constitutional petition was not maintainable in view of arbitration clause and availability of remedy of appeal to contractor under law; that High Court had earlier dismissed similar Constitutional petition filed against Zila Council on ground of arbitration clause and availability of remedy of appeal, which judgment had attained finality as appeal arising therefrom had been dismissed by Supreme Court for non‑prosecution, thus, two contradictory judgments of High Court on similar set of facts involving similar question of law were holding the field‑‑‑Supreme Court granted leave to appeal to consider the questions including question of condonation of delay of 114 days.
Dr. M. Mohy‑ud‑Din Qazi, Advocate Supreme Court for Petitioner.
Nemo for Respondent.
Date of hearing: 24th April, 2003.
2004 S C M R 1157
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Faqir Muhammad Khokhar and Falak Sher, JJ
MUHAMMAD TUFAIL and others‑‑‑Petitioners
Versus
CHIRAGH DIN and others‑‑‑Respondents
Civil Petition No. 1098‑L of 2002, decided on 6th June, 2003.
(On appeal from the judgment of the Lahore High Court, Lahore, dated 20‑2‑2002 passed in R.S.A. No. 118 of 2000).
Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S.39‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Suit for cancellation of sale‑deed‑‑‑Defendant alleged to have purchased from "M" (predecessor‑in‑interest of plaintiff) suit‑land allotted to him in village "R"‑‑‑Plaintiff's plea was that said "M" (against whose land left in India suit‑land was allotted) had died in year 1947, thus, such sale deed was forged‑‑‑Suit was concurrently decreed by Courts below‑‑Validity‑‑‑Defendant in written statement had admitted said "M" as allottee of suit‑land, but had denied plaintiff as his legal heir for want of knowledge‑‑‑Defendant in written statement had denied transfer of suit‑land to plaintiff through inheritance mutation for want of knowledge‑‑Defendant's case before Trial Court was that said "M" allottee had died after execution of sale‑deed and not about his identity‑‑‑Two RL‑IIs placed on record showed that said "M" had been allotted suit‑land in Village "R" against his full ownership rights in land left in India, while in Village "C", he had been allotted land against his Maroosi rights‑‑Claimant in both RL‑Its was same person containing different claim numbers‑‑‑In absence of any evidence as to whereabouts and identity of "M", if he was a different person, findings of facts recorded by Courts below were perfectly correct‑‑‑Supreme Court dismissed petition and refused leave to appeal.
Ch. Muhammad Anwar Bhinder, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioners.
Ch. Ghulam Rasool, Advocate Supreme Court and M. Ozair Chughtai, Advocate‑on‑Record for Respondents.
Date of hearing: 6th June, 2003.
2004 S C M R 1160
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J. Javed Iqbal and Abdul Hameed Dogar, JJ
Criminal Petition No.73/K of 2002
NAZIR AHMAD‑‑‑Petitioner
Versus
MUHAMMAD ISMAIL and another‑‑‑Respondents
(On appeal from the order, dated 12‑6‑2002 of the High Court of Sindh, Circuit Court, Larkana, passed in Criminal Bail Application No.S/790 of 2001).
Criminal Petition No. 127/K of 2002
NAZIR AHMAD‑‑‑Petitioner
Versus
ALI GUL and others‑‑‑Respondents
(On appeal from the order, dated 27‑9‑2002 of the High Court of Sindh, Circuit Court, Larkana, passed in Criminal Bail Application No.570 of 2002).
Criminal Petition No.84/K of 2003
LUTUF ALI ‑‑‑Petitioner
Versus
THE STATE ‑‑‑ Respondent
(On appeal from the order, dated 21‑4‑2003 of the High Court of Sindh, Circuit Court, Larkana, passed in Criminal Bail Application No. 108 of 2003).
Criminal Petitions Nos.73/K, 127/K of 2002 and 84/K of 2003, decided on 12th April, 2004.
(a) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), Ss.302/324/149‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Cancellation of bail‑‑Delay in conclusion of the trial had occasioned because of the adjournments sought on behalf of accused‑‑‑Specific role of firing at both the deceased was attributed to the accused‑‑‑Participation of accused in the occurrence was corroborated by the presence of so many fire‑arm injures on the person of the deceased‑‑‑Bail allowed to accused by High Court was cancelled in circumstances.
Shahnawaz and 2 others v. The State and another PLD 1994 SC 65 ref.
(b) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), Ss.302/324/149‑‑Cancellation of bail‑‑‑Principle‑‑‑Strong and exceptional grounds are required for cancellation of bail‑‑‑What has to be seen is whether order granting bail is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice.
(c) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/149‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Bail, refusal of‑‑‑Accused according to prosecution had actively participated in the commission of the offence and caused fire‑arm injuries to the deceased‑‑‑Bail was declined to accused in circumstances.
Mazhar Ali B. Chohan, Advocate Supreme Court for Petitioner (in Criminal Petitions Nos.73/K and 127/K of 2002).
Nuruddin Sarki, Advocate Supreme Court and R.A. Qureshi, Advocate‑on‑Record for Respondent No.1 (in Criminal Petitions Nos.73/K, 127/K of 2002 and for Petitioner in Criminal Petition No.84/K of 2003).
Qazi Khalid Ali, Addl. A.‑G., Sindh, for Respondent No.2 (in Criminal Petition No.73/K and 127/K of 2002).
Nemo for Respondent (in Criminal Petition No.84/K of 2003).
Date of hearing: 12th April, 2004.
2004 S C M R 1164
[Supreme Court of Pakistan]
Present: Javed Iqbal and Abdul Hameed Dogar, JJ
HABIBULLAH KHAN KUNDI‑‑‑Petitioner
Versus
THE STATE‑‑‑Respondent
Criminal Petition No.350 of 2003, decided on 26th April, 2004.
(On appeal from the judgment, dated 13‑12‑2001 of the Peshawar High Court Peshawar, passed in Ehtesab Appeal No.12 of 2001).
Ehtesab Act (IX of 1997)‑‑‑--
‑‑‑‑Ss. 3/4‑‑‑Constitution of Pakistan (1973), Art.185(3) ‑‑‑ Leave to appeal was granted to accused by Supreme Court inter alia, on the points; whether the impugned judgment was violative of the dictum as laid down in an unreported judgment, dated 23‑4‑2003 passed in Criminal Miscellaneous Appeal No.27 of 2001, whether the principles as laid down from time to time in various judicial pronouncements (mentioned in the order) had been kept in view by the High Court while deciding the case, whether an authoritative judgment was needed in view of the different case‑law, whether in view of the applicability of the Criminal Procedure Code in NAB cases the provisions of 5.419, Cr.P.C. would be applicable concerning filing of appeal, whether the absence of the accused who admittedly was in U.K. for medical treatment could be equated to that of "wilful evasion of process of law" initiated after his departure from Pakistan, whether the trial in absentia was in violation of the provisions as enumerated in Arts.4, 9 & 10 of the Constitution, in the interest of justice, fair play and equity, and whether the provisions of S.31‑A of the NAB Ordinance, 1999, were ultra vires the provisions of Arts.4, 9 & 10 of the Constitution.
Haji Nasim‑ur‑Rehman v. The State Criminal Miscellaneous Appeal No.27 of 2001; Chan Shah v. The Crown PLD 1956 FC 43; Amir v. State PLD 2004 Quetta 16; Bacha Said v. The State PLD 1978 SC 102; Muhammad Aslam v. The State 1972 SCMR 194; Hayat Bakhsh v. The State PLD 1981 SC 265 and Zahid Iqbal v. The State PLD 1991 SC 575 ref.
Malik Muhammad Qayyum, Abdul Karim Khan Kundi Advocates Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Petitioner.
Mian Fasihul Mulk, Deputy Prosecutor‑General NAB and M.S. Khattak, Advocate‑on‑Record for Respondent.
Date of hearing: 26th April, 2004.
2004 S C M R 1167
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Sardar Muhammad Raza Khan, JJ
RAIS WAZIR AHMAD‑‑‑Petitioner
Versus
THE STATE‑‑‑Respondent
Criminal Petition No. 113 of 2004, decided on 29th April, 2004.
(On appeal against the order of Lahore High Court, Bahawalpur Bench, Bahawalpur, dated 16‑3‑2004 passed in Criminal Miscellaneous No. 1378/B of 2003/BWP).'
(a) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 498‑‑‑Pre‑arrest bail‑‑‑Direct approach to High Court‑‑‑Practice and procedure‑‑‑Normally a person against whom a case has been registered, may approach in the first instance the original Court i.e. the Sessions Judge for bail before arrest because propriety so demands, but it is not an absolute rule as, depending upon the compelling circumstances of each case, a person can directly approach the High Court by invoking its concurrent jurisdiction‑‑‑If, however, such an application has been moved before the High Court and it has entertained the same and granted ad interim bail to the applicant, then instead of dismissing same on technical grounds it should dispose it of on merits.
Sh. Zahoor Ahmad v. The State PLD 1974 Lah. 256; The State v. Malik Mukhtar Ahmad Awan 1991 SCMR 322; Rafiq Ahmad Jilani v. The State 1995 PCr.LJ 785; Agha Muhammad Jamil v. The State 1997 PCr. LJ 901 and Shamrez Khan v. The State 1999 PCr. LJ 74 ref.
(b) Criminal Procedure Code (V of 1898)‑‑‑--
‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), S.506‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Pre‑arrest bail, grant of‑‑‑Case against the accused had allegedly been registered at the instance of the complainant due to his political influence‑‑‑Offence under S.506, P.P.C. was punishable with two years' R.I.‑‑‑Mala fides against the complainant had been specifically pleaded by the accused‑‑‑High Court instead of rejecting the plea of accused for bail before arrest should have decided his application on merits‑‑‑Sending the case back to High Court for decision on merits was also not in the interest of justice‑‑‑Pre‑arrest bail was allowed to accused on merits by Supreme Court in circumstances.
Sh. Zahoor Ahmad v. The State PLD 1974 Lah. 256; The State v. Malik Mukhtar Ahmad Awan 1991 SCMR 322; Rafiq Ahmad Jilani v. The State 1995 PCr.LJ 785; Agha Muhammad Jamil v. The State 1997 PCr.LJ 901 and Shamrez Khan v. The State 1999 PCr.LJ 74 ref.
Abdul Hafeez Pirzada, Afzal Siddiqui, Senior Advocates Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Petitioner.
Khawaja Tariq Raheem, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate‑on‑Record for the Complainant.
Muhammad Akbar Tarar, Additional Advocate‑General, Punjab for the State.
Date of hearing: 29th April, 2004.
2004 S C M R 1170
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ
MUHAMMAD RAWAB‑‑‑Appellant
Versus
THE STATE‑‑‑Respondent
Criminal Appeal No. 345 of 2003, decided on 27th April, 2004.
(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 5‑8‑2002 passed in Criminal Appeal No.279/T of 2002).
(a) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss. 365‑A/109‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7(e)‑‑Criminal Procedure Code (V of 1898), S.345‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Offences under S.365‑A, P.P.C. read with S.7(e) of the Anti‑Terrorism Act, 1997, were not compoundable‑‑‑Question was whether the Court could permit the parties to compound the offences which were not mentioned in S.345, Cr.P.C. specially when there was a bar under S.345(7), Cr.P.C. for entertaining a compromise in the offences not mentioned in S.345, Cr.P.C.‑‑‑Question being an important question of law of public importance, leave to appeal was granted to consider the same.
(b) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss. 365‑A/109‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7(e)‑‑Criminal Procedure Code (V of 1898), S.345‑‑‑Compromise‑‑‑Section 365‑A, P.P.C. read with S.7(e) of the Anti‑Terrorism Act, 1997, was not compoundable ‑‑‑Provisions of S.345, Cr.P.C. could not be stretched too far by including the non‑compoundable offence therein under the garb of humanitarian grounds or any other extraneous consideration‑‑‑Offences committed by the accused were not of grave and alarming nature, but the same were against the society as a whole and could not be permitted to compound by any individual on any score whatsoever‑‑‑Tabulation of the offences made under S.345, Cr.P.C. being unambiguous, would be a complete and comprehensive guide for compounding the offences‑‑‑Appeal was dismissed accordingly.
Dalsukhram Hargovandas v. Charles DeBretton 28 Bom. 326; Meenakshi Sundarammal v. Subramania Ayyar AIR 1955 Mad. 369; Akshoy Singh v. Rameshawar Bagdi AIR 1917 Cal. 705; Mt. Rani v. Mt. Jaiwanti AIR 1925 Nag: 395; Crown v. Muhammad Hussain PLD 1950 Lah. 86: Gurunarayan Das and others's case AIR 1948 Pat. 58; Agha Nazarali Sultan Muhammad v. Emperor AIR 1941 Sind 186; Emperor v. Jarnally and others AIR 1925 Lah. 464; Ghulam Rasool v. State 1999 MLD 3085; Muhammad Asif v. State 1991 MLD 1026; Noor Muhammad alias Noora v. State 1992 SCMR 2079; Muhammad Nazir alias Jeera v. State PLD 2001 Lah. 212; Muhammad Anwar v. State 1986 MLD 1111; Nawab‑ul‑Hassan v. State 2003 SCMR 658 and Yousaf Ali v. State 2002 SCMR 1885 ref.
(c) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 345‑‑‑Compounding offences‑‑‑Scheme and scope‑‑‑Legislature has laid down in S.345, Cr.P.C. the test for determining the classes of offences which concern individuals only as distinguished from those which have reference to the interests of the State and Courts of law cannot go beyond that test and substitute one of their own instead‑‑Against public policy to compound a non‑compoundable offence, keeping in view the facts existing on the date of application‑‑‑No offence shall be compounded except where the provisions of S.345, Cr.P.C. are satisfied concerning all matters mentioned therein.
Dalsukhram Hargovandas v. Charles DeBretton 28 Bem. 326; Meenakshi Sundarammal v. Subramania Ayyar AIR 1955 Mad. 369; Akshoy Singh v. Rameshawar Bagdi AIR 1917 Cal. 705; Mt. Rani v. Mi. Jaiwanti AIR 1925 Nag. 395; Crown v. Muhammad Hussain PLD 1950 Lah. 86; Gurunarayan Das and others's case AIR 1948 Pat. 58; Agha Nazarali Sultan Muhammad v. Emperor AIR 1941 Sind 186; Emperor v. Jarnally and others AIR 1925 Lah. 464; Ghulam Rasool v. State 1999 MLD 3085; Muhammad Asif v. State 1991 MLD 1026; Noor Muhammad alias Noora v. State 1992 SCMR 279; Muhammad Nazir alias Jeera v. State PLD 2001 Lah. 212; Muhammad Anwar v. State 1986 MLD 1111; Nawab‑ul‑Hassan v. State 2003 SCMR 658 and Yousaf Ali v. State 2002 SCMR 1885 ref.
Babar Awan, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Appellant.
M.S. Khattack, Advocate‑on‑Record for the Complainant.
Nasir Saeed Sheikh Standing Counsel on Court Notice for Attorney‑General for Pakistan.
Syed Shabbar Raza Rizvi, Advocate‑General Punjab and Muhammad Akbar Tarar, A.A.‑G. Punjab for A.‑G. Punjab.
Qazi Khalid Ali Additional Advocate‑General Sindh for A.‑G. Sindh.
Jehanzeb Rahim, Advocate‑General, N.‑W.F.P. for A.‑G. N. W.F.P.
Raja Abdul Ghafoor, Advocate‑on‑Record for Advocate‑General Balochistan.
Date of hearing: 27th April, 2004.
2004 S C M R 1175
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Sardar Muhammad Raza Khan, JJ
ALLAH NAWAZ‑‑‑Petitioner
Versus
THE STATE and another‑‑‑Respondents
Criminal Petition No.42/P of 2003, decided on 7th May, 2004.
(On appeal from the judgment, dated 24‑3‑2003 passed, by the Peshawar High Court, D.I. Khan Bench in Criminal Miscellaneous Bail Cancellation No.122 of 2002).
(a) Criminal Procedure Code (V of 1898)‑‑‑--
‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Constitution of Pakistan (1973), Art.185(2)‑‑Bail, grant of‑‑‑High Court had cancelled the bail granted to accused by Sessions Court on the ground that the accused was vicariously liable for the offence Section 497(1), Cr.P.C. had laid prohibition for the grant of bail for offences entailing punishment of death, imprisonment for life or imprisonment for ten years, whereas no such condition had been imposed by S.497(5), Cr.P.C. for canceling the bail which could be recalled if the bail granting order appeared to be injudicious or perverse‑‑‑Sessions Court while, granting bail to accused had taken into consideration the material available on record and the discretion exercised by it under S.497(1), Cr.P.C. in favour of accused was neither perverse nor arbitrary‑‑‑Accused was admitted to bail in circumstances.
(b) Criminal Procedure Code (V of 1898)‑‑‑-
‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, cancellation of‑‑‑Intent and import‑‑‑Considerations for the grant of bail and cancellation thereof are different‑‑‑Section 4970), Cr.P.C. lays prohibition for the grant of bail for offences punishable with death, imprisonment for life or ten years' R.I., whereas subsection (5) of the said section has not imposed any such conditionality for canceling the bail‑‑‑Any bail granting order which appears to be injudicious or perverse to the High Court or the Sessions Court can be recalled by it.
S. Zafar Abbas Zaidi, Advocate Supreme Court for Petitioner.
Barrister Jehanzeb Raheem, Advocate‑General, N.W.F.P. for the State.
Nemo for Respondent No.2.
Date of hearing: 7th May, 2004.
2004 S C M R 1178
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ
SHAFI MUHAMMAD SEHWANI and another‑‑‑Appellants
Versus
THE STATE‑‑‑Respondent
Criminal Appeals Nos. 109 and 111 of 1997, decided on 20th April, 2004.
(On appeal from the judgment, dated 30‑4‑1997 of Lahore High Court, Lahore passed in Ehtesab Reference No.3 of 1997).
Ehtesab Ordinance (XX of 1997)‑‑‑
‑‑‑‑Ss. 3 & 4‑‑‑Appraisal of evidence‑‑‑Element of mens tea was missing in the case‑‑‑Mere irregularity in regularization of the plot in question and the allegation of misleading the then Chairman, C.D.A. would not constitute the offence falling within the ambit of S.3 of the Ehtesab Ordinance, 1997‑‑‑Matter had been closed during the year 1993 leaving no justification for initiating criminal proceedings in the year 1996‑‑‑No case of any sort was, thus, made out warranting conviction and sentence of accused‑‑‑Even otherwise, after the promulgation of the Ehtesab Act, 1997 only holders of public offices, since 6th day of November, 1990, could be prosecuted and proceedings which related to offences committed prior to the said date could not be continued under the Ehtesab Act (IX of 1997), after the repeal of Ehtesab Ordinance (XX of 1997)‑‑Prosecution case, therefore, also failed on this legal aspect‑‑Accused were acquitted in circumstances.
Federation of Pakistan and others v. M. Nawaz Khokhar and others PLD 2000 SC 26 ref.
Aitzad Ahsan, Senior Advocate Supreme and Mehr Khan Malik, Advocate‑on‑Record for Appellants (in Criminal Appeal No.109 of 1997).
Raja Muhammad Anwar, Senior Advocate Supreme Court, Raja Muhammad Shafqat Abbasi, Advocate Supreme Court and Raja Abdul Ghafoor. Advocate‑on‑Record for Appellants (in Criminal Appeal No. 111 of 1997).
Ms. Nahida Mehboob Elahi, Advocate Supreme Court Standing Counsel and Ch. Akhtar Ali, Advocate‑on‑Record for the State.
Date of hearing; 20th April, 2004.
2004 S C M R 1185
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Sardar Muhammad Raza Khan, JJ
IFTIKHAR HUSSAIN and others‑‑‑Appellants
Versus
THE STATE‑‑‑Respondent
Criminal Appeal Nos. 430 of 2001 and Criminal Petition No.293 of 2001, decided on 14th April, 2004.
(On appeal from the judgment dated 18-10‑2001 of the Lahore High Court, Rawalpindi Bench passed in Criminal Appeal No.88 of 1982).
(a) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 417‑‑‑Appeal against acquittal‑‑‑Appreciation of evidence‑‑-Principles‑‑‑Accused after his acquittal by Trial Court enjoys double presumption of innocence in his favour and Courts seized with acquittal appeal under S.417 Cr.P.C. are obliged to be very careful in dislodging such presumption‑‑‑Two views, undoubtedly, are always possible while appreciating the evidence available on record, therefore, for such reason and in order to avoid the multiplicity of litigation, Court should follow the recognized principles, for interference in the acquittal judgment.
Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 ref.
(b) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 417‑‑‑Appeal against acquittal‑‑‑Principles‑‑‑Appellate Court while deciding the acquittal appeal under S.417, Cr.P.C. can interfere in the impugned order where the Trial Court has either disregarded material evidence, misread such evidence or received the same illegally.
Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 ref.
(c) Penal Code (XLV of 1960)‑‑--
‑‑‑‑S. 302‑‑‑Appraisal of evidence‑‑‑F.I.R. was intentionally delayed and was lodged after preliminary inquiries and consultations‑‑‑Complainant had not challenged the acquittal order passed by the Trial Court and it was on State appeal that the accused had been convicted and sentenced‑‑ocular evidence not only had material contradictions, but also credibility of the same had been shaken badly in cross‑examination‑‑Recovery of the crime weapon from the accused was highly doubtful‑‑Dispatch of crime empties, and the weapon to the Forensic Science Laboratory after an unexplained considerable delay had deprived the recovery of the incriminating articles of its corroborative value‑‑Medical evidence being in the nature of confirmatory evidence could not be considered corroborative evidence‑‑‑No incriminating evidence was available on record to support the eye‑witness account and the same could not be safely relied upon‑‑‑High Court had interfered with the acquittal of accused contrary to the principles laid down by Superior Courts‑‑‑Accused was acquitted in circumstances.
Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11; Muhammad Hanif v. State PLD 1977 Lah. 1253; Mst. Muhammadia v: Zari Bacha and another PLD 1982 Pesh. 85; Nazir Masih v. State 1997 MLD 48; Muhammad Javed v. S.S.P. Gujranwala and others PLD 1998 Lah. 214; Qazi Muh.ammad Javed v. S.S.P Gujranwala and others 1999 PCr.LJ 1645, Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Syed Ali Bepari v. Nabaran Moliah and others PLD 1962 SC 502; Tawaib Khan and another v. The State PLD 1970 SC 13; Bakka v. The State 1977 SCMR 150: Khairu and another v. The State 1981 SCMR 1136; Ziaullah v. The State 1993 SCMR 155; Shahid Raza and another v. The State 1992 SCMR 1647; Irshad Ahmad and others v. The State and others P L D 1996 SC 138; Ahmad Khan v. The State 1990 SCMR 803 and Khalid Javed and another v. The State 2003 SCMR 1419 ref.
(d) Criminal Procedure Code (V of 1898)‑‑‑
‑‑‑‑S. 154‑‑‑First Information Report ‑‑‑F.I.R. being a corner stone of the prosecution case to establish guilt of the accused involved in the crime, has got a very significant role of play‑‑‑Any doubt in lodging of F.I.R. and commencement of investigation gives rise to a benefit in favour of accused‑‑‑F.I.R. lodged after conducting an inquiry loses its evidentiary value.
Muhammad Hanif v. State PLD 1977 Lah. 1253; Mst. Muhammadia v. Zari Bachand another PLD 1982 Pesh. 85; Nazir Masih v. State 1997 MLD 48; Muhammad Javed v. S.S.P. Gujranwala and others PLD 1998 Lah. 214 and Qazi Muhammad Javed v. S.S.P. Gujranwala and others 1999 PCr.LJ 1645 ref.
(e) Penal Code (XLV of 1860)‑‑‑--
‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Sifting of grain out of chaff‑‑Principle‑‑‑Courts keeping in view prevailing circumstances for safe administration of justice follow the principle of appraisal of evidence i.e., sifting of grain out of chaff i.e. if ocular testimony of a witness is to be believed against particular set of accused and is to be disbelieved against another set of accused facing the same trial, then the Court must search for independent corroboration on material particulars.
Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758 ref.
Ihsanul Haq, Ch. Advocate Supreme Court, Raja Muhammad Shafqat Abbasi, Advocate Supreme, Court and Raja Abdul Ghafoor, Advocate‑on‑Record for Appellants (in Criminal Appeal No.430 of 2001).
Malik Rabnawaz Noon, Senior Advocate Supreme Court, M.A. Zaidi, Advocate‑on‑Record for Petitioners (in Criminal Petition No.293 of 2001).
M. Zaman Bhatti, Advocate Supreme Court for the State.
Date of hearing: 14th April, 2004.
2004 S C M R 1200
Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ
ABDULLAH DURRANI and others‑‑‑Petitioners
Versus
THE STATE‑‑‑Respondent
Criminal Petitions 31/Q, 32/Q, 34/Q, 318 of 2002 and Jail Petition No. 20/Q of 2002 and Crl.M.A. No. 362 of 2003, decided on 31st March, 2004.
(On appeal from the judgment dated 22‑7‑2002 of the High Court of Balochistan passed in Criminal Ehtesab Appeals Nos.34, 32, 37 and 39 of 2001).
National Accountability Ordinance (XVIII of 1999)‑‑--
‑‑‑‑Ss. 9/10‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Accused had been proved on record to have disposed of 524 plots situated in different housing schemes of the Cantonment Board on the basis of forged lease deeds‑‑‑Entire fraud had been played by the accused/officials of Cantonment Board in connivance with the private property dealers who, in furtherance of common intention and league with each other had sold the plots‑‑‑Executive Officer who was the Head of the Board had approved all the forged lease deeds and maps in the meeting of the Cantonment Board‑‑‑All the fake allotment letters and fake lease deeds were issued and .executed during the period of ban‑‑‑Sale of the fake plots was regularized on payment of additional amounts by the purchasers‑‑‑Record did not show that the confessional statements made by accused were obtained under duress or torture, which even if ignored, other sufficient material was available to connect the accused with the crime‑‑‑Leave to appeal was refused to accused by Supreme Court in circumstances.
Kamran Murtaia, Advocate Supreme Court for Petitioner (in Criminal Petitions Nos.31/Q and 34/Q of 2002).
Sh. Zameer Hussain, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioner (in Criminal Petition No.318 of 2002).
Raja Muhammad Ibrahim, Satti, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Respondent.
Date of hearing: 31st March, 2004.
2004 S C M R 1206
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry and Javed Iqbal, JJ
MUHAMMAD ESSA KHAN and another‑‑‑Petitioners
Versus
Dr. GOHAR IJAZ KHAN and others‑‑‑Respondents
Civil Petition No. 100/Q of 2003, decided on 4th May, 2004.
(On appeal from the judgment/order, dated 16‑4‑2003 passed by High Court of Balochistan, Quetta in C.P. No.31 of 2003).
Balochistan Local Government Elections Rules, 2000‑‑‑--
‑‑‑‑R. 14(k)‑‑‑National Accountability Ordinance (XVIII of 1999), Ss.15 & 25(b)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Election of District Nazim was challenged mainly on the ground that the elected candidate was disqualified to contest the election for the post of District Nazim in term of R.14(k), Balochistan Local Government Elections Rules, 2000 as he stood convicted under the provisions of National Accountability, Ordinance, 1999‑‑‑Leave to appeal was granted by the Supreme Court, inter alia, to examine as to whether elected candidate was disqualified to contest elections of District Nazim in view of provisions of R.14(k), Balochistan Local Government (Elections) Rules, 2000 read with Ss. 15 & 25(b) of the National Accountability Ordinance, 1999 because he had deposited three millions with the National Accountability Bureau, which he had obtained from an organization as petty contractor‑‑‑Supreme Court directed that as the candidate was holding the office of District Nazim; Office may fix the appeal arising out of the present petition at the earliest.
Hadi Shakil Ahmed, Advocate Supreme Court and M. Anwar Khan Durrani, Advocate‑on‑Record (absent) for Petitioners.
Syed Ayaz Zahoor, Advocate Supreme Court and M.W.N. Kohli, Advocate‑on‑Record (absent) for Respondent No. 1.
Nemo for Respondents Nos.2 to 5.
Date of hearing: 4th May, 2004.
2004 S C M R 1209
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J. Javed Iqbal and Abdul Hameed Dogar, JJ
QAMAR ZAMAN‑‑‑Petitioner
Versus
WASEEM IQBAL and 5 others‑‑‑Respondents
Criminal Petition No.45 of 2002, decided on 29th April, 2004.
(On appeal from the judgment, dated 20‑9‑2001 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Criminal Appeal No.434/T of 2000).
(a) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss. 396/149, 460, 148 & 411‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Appeal against acquittal by High Court‑‑‑High Court after having applied its conscious mind had rightly disbelieved the evidence of extra‑judicial confession and the incriminating recoveries‑‑‑Witness of extra‑judicial confession was not in a commanding position so as to influence local police with a view to help the accused‑‑‑Prosecution story regarding making the extra‑judicial confession voluntarily ran counter to the natural probabilities and showed that the same was in fact not made at all‑‑‑Recovery of the golden articles said to be belonging to the deceased being of the common pattern were neither got identified in accordance with law nor were exhibited in the trial, as such the same was not reliable‑‑‑Consideration warranting interference in appeals against acquittal and in appeals against conviction being quits different, Supreme Court could not interfere unless the grounds on which the High Court had acquitted the accused were not supportable .from the evidence on record or the judgment of acquittal was perverse and reasons thereof were artificial and. ridiculous‑‑‑No case was made out for interference in the impugned judgment‑‑‑Leave to appeal was refused to complainant by Supreme Court accordingly.
(b) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 185(3)‑‑‑Appeal against acquittal‑‑‑Interference by Supreme Court‑‑‑Principles‑‑‑Considerations warranting interference in appeals against acquittal and in appeals against conviction were quite different‑‑Supreme Court could not interfere unless the grounds on which the High Court had acquitted the accused were not supportable from the evidence on record or the judgment of acquittal was perverse and reasons thereof were artificial and ridiculous.
Sh. Zamir Hussain, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioner.
Nemo for Respondents
Date of hearing: 29th April, 2004.
2004 S C M R 1213
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ
DAEWOO CORPORATION‑‑‑Petitioner
Versus
ZILA COUNCIL, JHANG and 2 others‑‑Respondents
Civil Review Petition No.257 of 2001 in Civil Appeal No.254 of 1995, decided on 30th March, 2004.
(On review from the judgment of this Court, dated 30‑3‑2001 passed in C.A. No.254 of 1995 and on appeal from the judgment of the Lahore High Court, Lahore, dated 12‑1‑1995 passed in Writ Petition No.6754 of 1994).
(a) Constitution of Pakistan (1973)‑‑‑--
‑‑‑‑Art. 188‑‑‑Supreme Court Rules, 1980, O.XXVI‑‑‑Review of Supreme Court judgment‑‑‑Rehearing of appeal‑‑‑All points agitated before Supreme Court while arguing the appeal had been dilated upon and decided in a comprehensive manner in the judgment under review‑‑Effect‑‑‑Scope of review was, limited and no error floating on record having been pointed out by the petitioner, review petition was dismissed.
(b) Supreme Court Rules, 1980‑‑‑
‑‑‑‑O. XXVI‑‑‑Review of Supreme Court judgment‑‑‑Scope‑‑‑Review petition is not competent where neither any new and important matter or evidence has been discovered nor any mistake or error is apparent on the face of the record‑‑‑Such error may be an error of fact or of law but it must be self‑evident and floating on surface and not requiring any elaborate discussion or process of ratiocination‑‑‑If judgment or finding, although suffering from an erroneous assumption of facts, is sustainable on other grounds available on record, review is not justifiable notwithstanding error being apparent on the face of record.
Master Tahilram v. Lilaram 1970 SCMR 622; Abdul Khaliq Qureshi v. Chief Settlement and Rehabilitation Commissioner 1968 SCMR 800; Rehmatullah v. Abdul Majid 1968 SCMR 838; Hassan Din v. Claims Commissioner, Lahore 1968 SCMR 1047; Qamar Din v. Maula Bakhsh 1968 SCMR 1042; Muhammad Akram v. State 1970 SCMR 418; Nawab Bibi v. Hamida Begum 1968 SCMR 104 and Zulfikar Ali Bhutto v. State 1979 SCMR 427 ref.
Aftab Ahmad Khan, Advocate Supreme Court and M.A. Qureshi, Advocate‑on‑Record (absent) for Petitioner.
Shahid Hamid, Senior Advocate Supreme Court for Respondents Nos. 1 and 2.
Date of hearing; 30th March, 2004.
2004 S C M R 1215
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah, Khalil‑ur‑Rehman Ramday and Falak Sher, JJ
Maj. (Retd.) TIPU SULTAN KHAN and others‑‑‑Appellants
Versus
SHAHZAD HUSSAIN and others‑‑‑Respondents
Civil Appeals Nos. 1464 to 1466 of 1999, decided on 23rd April, 2004.
(On appeal, from judgment, dated 24‑2‑1999, passed by the Federal Service Tribunal, Islamabad, in Appeal No.296(P) of 1998).
Civil Servants (Appointment, Promotion and Transfer) Rules, 1973‑‑‑--
‑‑‑‑S. 3(2)‑‑‑Notification S.R.O. 305(I)/85, dated 31‑3‑1985, Ministry of Defence‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973.), Art.212(3)‑‑‑Direct induction‑‑‑Quota of Army Officers‑‑‑Civil servant being aggrieved of the induction of Army Officer in the service of Chief Administrator of Surveyor General of Pakistan, preferred appeal before Service Tribunal and the same was allowed by the Tribunal‑‑‑Validity‑‑‑Service Tribunal had rightly observed in the judgment that in present composition of officers in Grade‑19‑‑‑20% quota had not been observed by the Survey of Pakistan in defiance of the directive of the parent Ministry i.e. Ministry of Defence‑‑‑Service Tribunal rightly remanded the case and directed Surveyor General to reduce the number of Army Officers holding the post of Director to one only and appoint civilian officers in the vacancies according to their selection procedure and the Recruitment Rules for civilians‑‑‑Judgment passed by Service Tribunal was well‑reasoned which had taken into consideration the entire available material and had properly interpreted the rule and Office Memorandum of Establishment Division and thus the judgment was not open to exception‑‑‑Question of general public importance as contemplated under Art.212(3) of the Constitution was not made out‑‑‑Leave to appeal was refused.
Hafiz S.A. Rehman, Senior Advocate Supreme Court with M.S. Khattak, Advocate‑on‑Record for Appellants (in Civil Appeal No. 1464 of 1999).
Nasir Saeed Sheikh Standing Counsel with Ch. Akhtar Ali, Advocate‑on‑Record for Appellants (in Civil Appeal No. 1465 of 1999).
Appellant in person (in Civil Appeal No. 1466 of 1999).
Ali Hassan Gillani, Advocate Supreme Court with M.A. Zaidi, Advocate‑on‑Record for Respondent No. 1.
Date of hearing: 23rd April, 2004.
2004 S C M R 1219
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Faqir Muhammad Khokhar, JJ
Malik SAFDAR ALI KHAN and another‑‑‑Petitioners
Versus
PUBLIC‑AT‑LARGE and others‑‑‑Respondents
Civil Petitions for Leave to Appeals Nos.234 and 486 of 2003, decided on 22nd January, 2004.
(On appeal from the judgment/order of the Peshawar High Court, Peshawar, dated 20‑1‑2003, passed in Civil Revision No.270 of 2001).
(a) Islamic Law‑‑‑--
‑‑‑‑ Succession‑‑"Nomination" and "gift"‑‑‑Distinction‑‑‑Unless a nomination could amount to a valid gift inter vivos, same could not pass title to nominee in respect of immovable property‑‑‑Making of a nomination could not give right to nominator at his choice to change Law of Succession, which otherwise would be applicable in case of his death‑‑‑Nomination could not operate as a valid gift under Islamic Law as gift in order to confer title on donee must be accompanied by delivery of possession of property gifted.
(b) Provident Funds Act (XIX of 1925)‑‑‑--
‑‑‑‑S. 5‑‑‑Nomination under Provident Funds Act 1925‑‑‑Validity‑‑‑Such nomination would neither be a will nor a gift nor a trust‑‑‑Such nomination would merely be a mandate, the validity of which would expire with death and mandatory and Fund would form part of his own un disposed estate on his death.
Aimai v. Awabai Dhanjishaw Jamsetji AIR 1924 Sindh 57 approved.
(c) Execution‑‑‑--
‑‑‑‑ Decree for recovery of money passed against several judgment debtors jointly‑‑‑Such decree may be executed against anyone judgment debtors, who would, thereafter, have right of contribution against other judgment‑debtors.
Mian Shamsul Haq v. Mst. Saira and others Civil Petitions Nos. 204 and 205 of 1996 fol.
(d) Succession Act (XXXIX of 1925)‑‑‑
‑‑‑‑S. 373‑‑‑National Savings Certificates Rules, 1990, Rr. 13, 15 & 16‑‑Succession certificate‑‑‑National Savings Certificates purchased by Muslim deceased nominating his brother as nominee‑‑‑Applicant (nominee) sought grant of succession certificate in his sole name for he being a nominee was entitled to receive payment of certificates; and that widow and children of deceased belonging to Christian faith were not entitled to inherit his legacy‑‑‑Trial Court grantee, succession certificates to widow and children after finding them to be Muslims‑‑‑Such judgment was upheld by Appellate Court and in revision by High Court‑‑Validity‑‑‑Widow and children though not formally represented at hearing had sent their reply to Court with supporting documents denying allegation regarding their faith‑‑‑Widow and children had produced in evidence Conversion Certificate issued by Islamic Cultural Centre alongwith declaration of Islamic faith‑‑‑Only evidence to contradict such documentary evidence was the oral assertion of applicant to the effect that during visit of family of his deceased brother to Pakistan, he had noticed non‑observance of Islamic rites by his widow and children‑‑Statement of another brother of deceased (a respondent in the case) relating to religion of widow and children of deceased to be Islam would be admissible in evidence, even if he had not formally appeared on their behalf‑‑‑Documentary evidence coupled with oral testimony of another brother of deceased must prevail over oral assertion of applicant, which, on its face, would not be sufficient to declare widow and children as non‑Muslims ‑‑‑Nomination of applicant in National Savings Certificates Form could not override provisions of Islamic Law of Succession‑‑‑Widow and children of deceased were entitled to grant of succession certificate, which had rightly been granted by Courts below‑‑‑Supreme Court dismissed petition and refused leave to appeal.
Mahmommedan Law, 1987 Sections 7 and 49; Amtul Habib v. Musarrat Parveen. PLD 1974 SC 185 and Aimai v. Awabai Dhanjishaw Jamsetji AIR 1924 Sindh 57 gel.
(e) National Savings Certificates Rules, 1990
‑‑‑‑R. 13 ‑‑‑Nomination made by purchaser in National Savings Certificate Form‑‑‑Effect‑‑‑Such nomination could not override provisions of Islamic Law, whereunder only legal heirs of deceased purchaser would be entitled to receive property left by deceased.
(f) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O. XIV, R.1‑‑‑Non‑framing of specific issue on point involved‑‑Effect‑‑‑Parties were well aware of question involved in case‑‑‑Evidence adduced by patties was exclusively geared towards such issue‑‑‑Held: No prejudice to any of the parties had been caused by non‑framing of specific issue on point involved.
Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court (in both petitions) and M.S. Khattak, Advocate‑on‑Record for Petitioners (in Civil Petition No.486 of 2003).
Raja Muhammad Ibrahim Satti, Advocate Supreme Court for Respondents.
Date of hearing: 22nd January, 2004.
2004 S C M R 1229
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J. Javed Iqbal and Abdul Hameed Dogar, JJ
Dr. MUHAMMAD ANWAR KURD‑‑‑Petitioner
Versus
THE STATE and others‑‑‑Respondents
Criminal Petitions Nos. 101 to 103 of 2003, decided on 16th January, 2004.
(On appeal from the judgment, dated 17‑2‑2003 of the High Court of Balochistan, Quetta, passed in Ehtesab Appeals Nos.41, 42 and 49 of 2001).
National Accountability Ordinance (XVIII of 1999)‑‑‑
‑‑‑‑Ss. 25 & 15‑‑‑Constitution of Pakistan (1973), Arts. 185(3), 4, 9, 12, 13 & 25‑‑‑Leave to appeal was granted by Supreme Court to consider, inter alia the points that what exactly the term "plea‑bargaining" stands for, what should be its exact import and significance, does it amount to "plead guilty" for the alleged offences and empowers the Accountability Court to convict and sentence the incumbent concerned by absolving the prosecution from its bounden duty to substantiate the accusation by producing cogent and concrete evidence; that whether the "plea bargaining" amounts to "complete discharge of the accused persons" and no consequential penalty by virtue of amendment subsequently carried out in section 25 of the National Accountability Ordinance, 1999; could have been imposed upon the petitioners that whether the dictum as laid down in case titled Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 has been misconstrued and misinterpreted when the alleged ill‑gotten gains were deposited by the petitioners in favour of the Chairman of the Bureau prior to the announcement of the said judgment; that whether any loss had been accrued to the Government merely by tendering the medical opinion by the legally constituted Medical Board wherein the accused were also members and payment was made by Accountant‑General Office to the Government employees in accordance with rules and on the basis of length of their service; that whether the concept of "deeming conviction" is alien to the criminal administration of justice in Pakistan and was in violation of provisions as contained in Articles 4, 9, 12, 13, 14 and 25 of the Constitution which could not have been made applicable in the case of petitioners who were not charged for any specific offence and the notional conviction as provided under section 10 of the Ordinance did not entail the penal consequences of "deeming clause" and the Accountability Court should have confined itself to the question of acceptance and rejection. of "plea‑bargaining"; that whether the approval for acceptance of "plea bargaining" could have been sought for from the Accountability Court without carrying the amendment on the subject pursuant to the direction of Supreme Court given in Khan Asfandyar Wali's case and resultantly the transaction regarding "plea bargaining" stood, finalized on its acceptance by the Chairman of the Bureau and the Accountability Court did not figure in hence the question of any conviction and sentence did not arise and that whether the cases of accused persons were governed by on acceptance of "plea‑bargaining" under section 25 of the Ordinance as enacted in its original form and could conviction and sentence be awarded pursuant to the amendment made subsequently under section 25 of the Ordinance which was not made applicable with retrospective effect.
Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 ref.
Muhammad Akram Sheikh, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Petitioner.
Makhdoom Ali Khan, Attorney‑General for Pakistan and Irfan Qadir, Prosecutor‑General NAB for Respondents.
Date of hearing: 16th January, 2004.
2004 S C M R 1232
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J. Javed Iqbal and Abdul Hameed Dogar, JJ
GHULAM ALI and others‑‑‑Petitioners
Versus
MUHAMMD NASIR KHAN and others‑‑‑Respondents
Civil Petition No.991/K of 2002, decided en 12th April, 2004.
(On appeal from the judgment, dated 4‑9‑2002 of the High Court of Sindh Circuit at Hyderabad passed in C.P. No.D‑192 of 2000).
(a) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)-------
‑‑‑‑S. 2‑‑‑Matter, in fact was a past and closed transaction which could not have been reopened by a person who had no concern whatsoever with the land in question except that he was son of a person who had tried his luck upto the Supreme Court but in vain‑‑‑Land in question was neither available for allotment nor the same could have been allotted after the repeal of Displaced Persons (Land Settlement) Act, 1958 as it was not subject to any proceedings anywhere and, therefore, it was not "available" for the purpose of re‑allotment.
Shamrooz Khan v. Muhabbat Khan 1989 SCMR 819 and Quetta Hindu Panchayat v. Dilshad Akhtar 1993 SCMR 21 distinguished.
(b) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---
‑‑‑‑S. 2‑‑‑Record showed that the price of land in question had been paid pursuant to Martial Law Regulation No. 89 of 1961‑‑‑Non‑execution of conveyance deed by the concerned authorities would have no substantial bearing on the title .of the transferees as all the mandatory requirements had been adhered to in letter and spirit and they could not be held responsible for any lapse which otherwise was immaterial on the part of concerned authorities‑‑‑Mutation qua the land pertaining to the transferees had been cancelled by a letter by the Additional Deputy Commissioner without any notice and affording proper opportunity Of hearing to the transferees which was a classic example of highhandedness, misuse and abuse of the official authority‑‑‑Title of the "original allottee" was never challenged and resultantly the transferees, who had stepped in the shoes of original allottee, could not have been deprived of land which now had been Mutated again in their favour‑‑‑Supreme Court directed that disciplinary action must be initiated against the concerned functionaries and finalize expeditiously and progress whereof to be intimated to the office of the Supreme Court.
Shamrooz Khan v. Muhabbat Khan 1989 SCMR 819 and Quetta Hindu Panchayat v. Dilshad Akhtar 1993 SCMR 21 distinguished.
Abdul Rahim Kazi, Advocate Supreme Court and K.A. Wahab, Advocate‑on‑Record for Petitioners.
Imran Ahmad, Advocate Supreme Court and. Miss Wajahat Niaz, Advocate‑on‑Record. for Respondents Nos.1‑4.
Date of hearing: 12th April, 2004.
2004 S C M R 1238
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J. Javed Iqbal and Abdul Hameed Dogar, JJ
Sardar MUHAMMAD ASLAM‑‑‑Petitioner
Versus
ADDITIONAL DISTRICT AND SESSIONS JUDGE and others‑‑‑Respondents
Civil Petition No. 1925(L) of 2003, decided on 19th April, 2004.
(On appeal from the judgment of the Lahore High Court, Lahore, dated 27‑5‑2003 passed in W. P. No.6959 of 2003).
Punjab Local Government Elections Rules, 2000‑‑‑
‑‑‑‑Rr. 70, 71 & 72‑‑‑Constitution of Pakistan (1973), Art.185(3) & 37(b)‑‑‑Academic qualification required for contesting election of Nazim/Naib Nazim of a Union Council‑‑‑Candidate lacked the requisite qualification of matriculation and there were allegations of forgery, fraud and fabrication against him‑‑‑Evidence on record proved that candidate was not‑qualified to contest election being non‑matriculate and besides that Matriculation certificate was never issued in favour of the candidate by the relevant authorities ‑‑‑Factum of fraud and fabrication being question of fact had rightly been determined, after having taken into consideration the entire evidence by Election Tribunal and affirmed by the High Court by means of impugned judgment which being well based did not admit interference‑‑‑Judgment of High Court reflected an absolutely fair analysis and evaluation of the evidence and was strictly in accordance with the settled principles of justice in such‑like cases‑‑‑Supreme Court while dismissing the petition for leave to appeal observed that it was bounden duty of the State to remove illiteracy and provide free and compulsory education within minimum possible period as contemplated in Art.37(b) of the Constitution.
A.K. Dogar, Senior Advocate Supreme Court and Ozair Chughtai, Advocate‑on‑Record (absent) for Petitioner.
Nemo for Respondents.
Date of hearing: 19th April, 2004.
2004 S C M R 1242
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, CJ. Javed Iqbal and Abdul Hameed Dogar, JJ
Sardar TARIQ JAVAID‑‑‑Petitioner
Versus
PROVINCIAL ELECTION COMMISSION OF PUNJAB and 8 others‑‑‑Respondents
Civil Petition No. 1550 of 2003, decided on 27th April, 2004.
(On appeal from the judgment dated 31‑7‑2003 of the Lahore High Court, Lahore passed in Writ Petition No. 18509 of 2002).
(a) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 185(3)‑‑‑Petition for leave to appeal‑‑‑Concurrent findings of two Courts below recorded on factual aspect of the case, could not be interfered with by the Supreme Court.
(b) 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)‑‑‑Election of Nazim/Naib Nazim of Union Council‑‑‑Disqualification‑‑‑Thrown away, doctrine of‑‑‑Applicability‑‑‑Disqualification of returned candidates‑‑‑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‑‑‑Disqualification must be founded on some positive and definite fact existing and established at the time of poll so as to lead to the fair inference of wilful perverseness on the part of the electors voting for the disqualified person‑‑‑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 mainly for the reason that the voters cannot be disfranchised for no fault on their part‑‑Election Tribunal as well as the High Court, in the present case, had seriously erred in declaring the next candidates as duly elected though they had secured 1001 votes less than the votes secured by the disqualified candidates, which showed lack of confidence of majority of the voters in them‑‑‑Majority of the voters, in circumstances, could not be deprived of their right of franchise on the doctrine of thrown away‑‑Supreme Court directed the Election Commission to hold fresh elections for the office of both Nazim as well as Naib Nazim of the concerned Union Council.
Rashid Ahmad Rahmani v. Mirza Barkat Ali and 2 others PLD 1968 SC 301; Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6; Junaid Ahmad Soomro v. Haji Mehboob Ali Bhayo and others PLD 1986 SC 698 and Mian Ahmad Saeed and others v. Election Tribunal for Kasur at Okara and 7 others 2003 SCMR 1611 ref.
Sahebzada Ahmad Raza Khan Qasuri Senior Advocate, Supreme Court and Ch. Karam Ellahi Bhatti, Advocate‑on‑Record for Petitioner.
Shahzad Shoukat, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Respondent No.3.
Date of hearing: 27th April, 2004.
2004 S C M R 1247
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Sardar Muhammad Raza Khan, JJ
C.P. No.946‑L of 2000
FAISALABAD DEVELOPMENT AUTHORITY‑‑‑Petitioner
Versus
Raja JAHANGIR NASIR and others‑‑‑Respondents
(On appeal from the judgment, dated 28‑2‑2000 passed by the Lahore High Court, Lahore in I.C.A. No.935 of 1997).
C. P. No. 1012‑L of 2000
MUNICIPAL CORPORATION, FAISALABAD ‑‑‑Petitioner
Versus
Raja JAHANGIR NASIR and others‑‑‑Respondents
(On appeal from the judgment dated 28‑2‑2000 passed by the Lahore High Court, Lahore in I.C.A. No.256 of 1998).
C.P. No. 2142‑L of 2003
Raja JAHANGIR NASIR and others‑‑‑Petitioners
Versus
MUNICIPAL CORPORATION, FAISALABAD and others‑‑‑Respondents
(On appeal from the judgment dated 4‑8‑2003 passed by the Lahore High Court, Lahore in C.M. No. 1 of 2002 in I.C.A. No.256 of 1998).
Civil Miscellaneous Application No.586/L of 2003 with Civil Petition No.946/L of 2000, Civil Miscellaneous Application No.587/L of 2003 with Civil Petition No.1012/L of 2000 and Civil Miscellaneous Applications Nos.1995/L of 2003 and 523/L of 2004 with Civil Petition No.2142/L of 2003, decided on 28th May, 2004.
(a) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑S. 12(2)‑‑‑Application under S.12(2), C.P.C. is always filed before the Court that tendered final judgment.
Abid Kamal's case 2000 SCMR 900 fol.
(b) Administration of justice‑‑‑
Concession by Law Officer in the Court‑‑‑Requirements‑‑‑Law Officer must not make any statement conceding an issue or a case in Court unless he has been duly instructed in writing by the Competent Authority and an officer not below Grade 17 is present to Court to verify and reiterate such instructions‑‑‑In all such cases the presence of the officer must be recorded in the order of the Court and the written instructions made a part of the record of the Court.
PLD 2003 Journal 95 and Pakistan Railways v. Muhammad Sharif Javaid Warsi PLD 2003 SC 6 ref.
(c) Land Acquisition Act (1 of 1894)‑‑‑
‑‑‑‑S. 3(b)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional jurisdiction of High Court under Art. 199 of the Constitution ‑‑‑Scope‑‑Land acquisition‑‑‑Title of land in question was disputed by the department even prior to the institution of the Constitutional petition by the landowner‑‑‑Held, it was incumbent upon the alleged landowners that once their title was disputed, they ought to have had resorted to the Court of plenary jurisdiction‑‑‑High Court, as a Court exercising Constitutional jurisdiction under Art. 199 of the Constitution, could not go into the disputed question of title and could not have the opportunity of recording evidence of the parties, the resort in the circumstances must have been made to the Court of original jurisdiction having power to declare or not to declare the title in question.
(d) Land Acquisition Act (1 of 1894)‑‑‑--
‑‑‑‑S. 3(b)‑‑‑Acquisition of land‑‑‑Claimants of alternate land in lieu of money compensation have no right at all under the law to be so compensated through a transfer of any other land in the alternative as entire scheme of the Land Acquisition Act, 1894 is devoid of such arrangement.
(e) Land Acquisition Act (1 of 1894)‑‑‑--
‑‑‑‑Ss. 3(b), 23, 24 & 25‑‑‑"Person interested" within the contemplation of S.3(b), Land Acquisition Act, 1894 cannot be granted any land in the alternative for the land acquired from him for a public purpose‑‑‑Law envisaged the grant of compensation in terms of money and money alone‑‑‑" Person interested" thus can or could have claimed compensation in terms of money alone‑‑‑Even if the Government, outside the purview of Land Acquisition Act, 1894 comes with a gesture acceding to owners wish that compensation should be in form of land instead of cash, it is or would be an agreement not enforceable through Court.
M. Salim Ullah's case PLD 1960 (W.P.) Lah. 450 ref.
(f) Land Acquisition Act (1 of 1894)‑‑‑--
‑‑‑‑Ss. 30, 31, 32, 11 & 3(b)‑‑‑Acquisition of land ‑‑‑Compensation‑‑Provisions of Ss.30, 31 and 32, Land Acquisition Act, 1894 presupposes the determination, existence and the availability of amount of compensation in terms of money as finalized by the award under S.11, Land Acquisition Act, 1894‑‑‑Where there is no complication, the amount is paid to the "person interested" and at times it is deposited in Court and under certain conditions other arrangements are resorted to‑‑Such arrangements are the subject‑matter of S.31(3) of the Land Acquisition Act, 1894.
(g) Land Acquisition Act (1 of 1894)‑‑‑--
‑‑‑‑Ss. 31(3) & 3(b)‑‑‑Acquisition of land‑‑‑Person interested‑‑‑Award of compensation‑‑‑Arrangements‑‑‑Most important ingredient of S.31(3) has to be kept in view that all the arrangements as enumerated in S.31(3) of the Act or anyone thereof can be made with person having "limited interest in such land" ‑‑‑Claimants, in the present case, claim to be full owners of the land acquired and fall accordingly within the definitions of "person interested" as defined in S.3(b) of the Act and have nothing to do with person having a limited interest in such land.
The Collector under section 31(3) of the Act with the sanction of the Provincial Government (now Commissioner), instead of making payment of money compensation in respect of some land, can make any arrangement with person having a limited interest in such land. Such arrangements are of the following three kinds:‑‑
(a) by the grant of other lards in exchange, (b) by the remission of land revenue on other lands held under the same title i.e. limited interest, and
(c) in such other way as may be equitable having regard to the interests of the parties concerned.
The most important ingredient of the section has to be kept in view that all the aforesaid arrangements or anyone thereof can be made with person having a limited interest in such land. It requires no effort to hold that the present claimants, in their mind, claim to be full owners of the land acquired and fall accordingly within the definitions of "person interested" as defined by section 3(b) of the Act and have nothing at all to do with person having a limited interest in such land. The very claim is unfounded and void ab initio. No Court can grant such relief for alternate land in liar of money compensation.
(h) Land Acquisition Act (1 of 1894)‑‑‑
‑‑‑Ss. 31, 32 & 3‑‑‑Acquisition of land‑‑‑Award of compensation‑‑"Person interested"‑‑‑Widow holding life estate was a person having a limited interest while her reversionaries were the "persons interested" within the meaning of S.3 of Land Acquisition Act, 1894‑‑‑Provisions of Ss.31 & 32 of the Act apparently provide for the case of persons not having absolute power to alienate the property as was a widow holding a life estate under the custom‑‑‑Sections 31 & 32, Land Acquisition Act, 1894 are intended by the Legislature to protect the interest of reversioners when land is taken from the possession of a person who holds it only on a life estate.
Sheo Prasad Singh v. Jaleha Kunwar ILR 1901 All. AWN 1902. and Mst. Gangi v. Santu AIR 1929 Lah. 736 ref.
Ali Akbar Qureshi, Advocate Supreme Court for Petitioner (in Civil Petition No.946‑L of 2000) and for Respondent No. 12 (in Civil Petition No.2142‑L of 2003).
Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court with M.S. Khattak, Advocate‑on‑Record for Respondents Nos.1 to 3 (in Civil Petitions Nos.946‑L and 1012‑L of 2000).
Malik Saeed Hassan, Senior Advocate Supreme Court (in Civil Miscellaneous Applications Nos.586-L and 587‑L of 2003)
Ch. Ali Muhammad, Advocate Supreme Court for Petitioner (in Civil Petition No.1012‑L of 2000) and for Applicant (in Civil Miscellaneous Application No.523‑L of 2004).
Ms. Afshan Ghazanfar, A.A.‑G. Punjab for the State (in Civil Petitions Nos.946‑L and 1012‑L of 2000).
Raja Muhammad Akram, Senior Advocate Supreme Court with Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioners (in Civil Petition No.2142‑L of 2003).
Syed Shamim Abbas Bukhari, Advocate Supreme Court for Applicants (in C.M.A. No. 1995/L of 2003).
Dates of hearing: 18th and 19th March, 2004.
2004 S C M R 1259
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Hamid Ali Mirza, JJ
KHAWAS KHAN through Legal Heirs‑‑‑Petitioners
Versus
SABIR HUSSAIN SHAH and others‑‑‑Respondents
Civil Petition No. 1639 of 2002, decided on 6th April, 2004.
(On appeal from the judgment, dated 10‑6‑2002 passed by the Peshawar High Court, Circuit Bench Abbottabad).
(a) Specific Relief Act (I of 1877)‑‑‑--
‑‑‑‑S. 42‑‑‑Suit for declaration of ownership of immovable property‑‑Stated executant of document was a Pardanashin lady‑‑‑Burden of proof‑‑‑Requirements‑‑‑Party placing reliance upon the document would have to prove execution of said document showing that the Pardanashin lady understood the terms of the deed and the deed was read over and explained to her.
In case of Pardanasheen lady, the party placing reliance upon the document would have to prove execution of said document that the Pardanasheen lady understood the terms of the deed and the deed was read over and explained to her. In case of illiterate Pardanasheen lady, it must be shown that deed was read over to her and the terms of the same were adequately explained to her and Court has to be cautious to see that the burden is satisfactorily discharged by the party in whose favour the deed was allegedly executed. It was necessary for the defendants to bring on record that Pardanasheen lady/executant was free and intelligent to execute the deed and Court has to come to definite conclusion that transaction through the deed was understood by her not only from the evidence in the case but also from the facts and circumstances of the case. In the present case defendant was distantly related to the Pardanasheen lady, therefore she had trust and confidence in him who had taken undue advantage of the said illiterate Pardanasheen lady and betrayed her confidence by practising fraud upon her so much so that she was neither produced before Sub‑Registrar nor before Revenue Authorities and instead a fictitious lady was introduced to pose as the executant. No presumption of knowledge of the contents of allegedly executed deed by Pardanasheen lady could be drawn in favour of the defendants in the circumstances of case. Mere fact that deed was registered would not establish that it was in fact executed by the stated executant unless reliable and satisfactory evidence is led to prove the said fact and that contents of said deed were duly explained to and understood by her and that an independent person had identified the lady to be the same lady who owned the suit‑land.
In the case of a document executed by a Pardanashin woman, it would not be sufficient to show that the document was reed out to her but it must further be proved that she understood its nature and effect.
Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Parikh Atmaram Maneklala v. Bai Hira PLD 1948 PC 40; Hawa v. Muhammad Yousaf and others PLD 1969 Kar. 324; Mst. Badshah Begum v. Ghulam Rasul and 4 others PLD 1991 SC 1140; Mst. Hafiza Bibi v. Ali Hussain and others 1994 SCMR 1194; Muhammad v. Mst. Rehmon 1998 SCMR 1354; Amirzada Khan and others v. Itbar Khan and others 2001 SCMR 609 and Ghulam Muhammad v. Farooq Ahmed and others 2002 SCMR 1801 ref.
(b) Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S. 42‑‑‑Suit for declaration of ownership of immovable property‑‑Allegation of fraud and misrepresentation‑‑‑Limitation‑‑‑Time would run from the date when the right to sue would accrue to the plaintiff‑‑‑Lapse of time would not sanctify the action based on fraud and misrepresentation‑‑‑Cause of action, in the present case, accrued to the plaintiffs when they came to know of fraud and misrepresentation was practised and committed upon their predecessor's viz a Pardanashin lady's right and interest in respect of land in suit, and the deed thereby secured by fraud and misrepresentation, was void document and also the mutation‑‑‑No right/title/interest, in circumstances, had passed on in favour of the defendant's predecessor‑in‑interest, therefore, suit was within time.
Qazi Ghulam Rauf, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioners.
Nemo for Respondents.
Date of hearing: 6th April, 2004.
2004 S C M R 1270
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Sardar Muhammad Raza Khan, JJ
ABDUL YAMEEN KHAN‑‑‑Petitioner
Versus
ASHRAT ALI KHAN and others‑‑‑Respondents
Civil Petition No.488‑P of 2003, decided on 4th May, 2004.
(On appeal from the judgment, dated 4‑7‑2003 passed by the Peshawar High Court, Peshawar in Writ Petition No.54 of 2003).
North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑
‑‑‑‑S. 22‑‑‑Transfer of Property Act (IV of 1882), S.52‑‑‑Sale of property by vendee after institution of pre‑emption suit‑‑‑Validity‑‑‑Once pre‑emption suit stands instituted, vendee would be prohibited from entering into sale or resale of disputed property‑‑‑Provisions of S.52, Transfer of Property Act, 1882 would be attracted only, when lis was pending adjudication‑‑‑Further sale by vendee prior to institution of preemption suit could not be brought within four corners of principle of lis pendens‑‑‑Such further sale would be a new transaction altogether and pre‑emptor, if interest in pre ‑ empting such sale, would have to file a suit against latest sale, but not against the previous one‑‑Principles.
Muhammad Khan v. Sadiq PLD 1968 Lah. 929; Fyare Mohan v. Rameshwar AIR 1980 Rajasthan 116; Muhammad Khan v. Zir Mir Khan 1981 CLC 129; Falak Sher v. Muhammad Rashid PLD 1982 Lah. 426; Mian Tahir Shah v. Additional District Judge, Swabi 1998 SCMR 858 ref.
Mian Muhammad Younas, Senior Advocate Supreme Court with Jan Muhammad Khan, Advocate‑on‑Record for Petitioner.
Saeed Baig, Advocate Supreme Court with M. Ismail Fehmi, Advocate‑on‑Record for Respondents.
Date of hearing: 4th May, 2004.
2004 S C M R 1274
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Sardar Muhammad Raza Khan, JJ
Messrs RAMNA PIPE AND GENERAL MILLS (PVT.) LIMITED‑‑‑Appellants
Versus
Messrs SUI NORTHERN GAS PIPE LINES (PVT.) and others‑‑‑Respondents
Civil Appeals Nos. 1534 and 1535 of 1998, decided on 27th May. 2004.
(On appeal from the judgment, dated 29‑5‑1998 of the Lahore High Court passed in I.C.As. Nos. 12 and 18 of 1998).
(a) Constitution of Pakistan (1973)‑‑
‑‑‑‑Arts. 199 & 185(3)‑‑‑Contractual obligations‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Leave to appeal was granted by the Supreme Court to consider the questions as to whether the Constitutional petition was maintainable before the High Court in relation to the contractual obligations surfacing themselves after the purchase order between the petitioner and respondent; whether the High Court was competent to accept a part of the contract between the petitioner and respondent as binding and another part as not so binding by observing that the clause relating to the payment of sales tax was ultra vires, 'particularly when such observation, prima facie, ran counter to the observations made by the Supreme Court to (Commissioner of Income Tax v. Messrs Siemens A.G. 1991 PTD 488) to the effect that nature of a contract intended by the parties thereto could not be changed, under the pretext that the rule of interpretation of a fiscal law in this behalf was different and whether the rights of party, other than the Company/Mills/ Juristic person, could be put at naught on the strength of lifting the veil of incorporation, more so, when the internal management of Company/ Mills/Juristic person could not be treated in law as running contrary to the acceptance of proper representation by them without even so much as the said third party having any mala fides in that regard.
(b) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Mutual valid contract‑‑‑Contract between two companies carrying element of the public interest is open for judicial review‑‑‑"Contract carrying elements of public interest"‑‑‑Concept‑‑‑Doctrine of indoor management‑‑Applicability‑‑‑Scope‑‑‑When two contracting parties agreed to do something by a mutual contract or intended to do so and it was not prohibited by Islam, a third party, like the Income Tax Department or for that matter, the Court had no power to modify either the contract or interfere with what they intended to do with it‑‑‑Emphasis had to be laid on expression "mutual valid contract"‑‑‑Principles. An incorporated body being custodian of public interest is bound to carry out its functions in a legal and highly transparent manner to ensure protection/ safeguard of the interest of the public having shares in it as they have reposed confidence in it to run business on their behalf so that the benefit of the same could be extended to them. When two contracting parties agreed to do something by a mutual valid contract or intended to do so and it is not prohibited by Islam, a third party, like the Income Tax Department or for that matter the Court has no power to modify either the contract or interfere with what they intended to do with it. Emphasis has to be laid on expression `mutual valid contract'.
A contract carrying element of the public interest is open for judicial review. A contract carrying elements of public interest, concluded by functionaries of the State has to be just, fair, transparent, reasonable and free of any taint of mala fides, all such aspects remaining open for judicial review. The rule is founded on the premises that public functionaries, deriving authority from or under law, are obligated to act justly, fairly equitably, reasonably, without any element of discrimination and squarely within the parameters of law, as applicable in a given situation. Deviation if of substance, can be corrected through appropriate orders under Article 199 of the Constitution such behalf even where a contract, pure and simple, is involved, provided always that public element presents itself and the dispute does not entail evidentiary facts of a disputed nature. redress may be provided.
High Court could interfere in respect of a transaction which had been concluded by the Public Limited Company with a third party in order to safeguard the interest of the public who have got the shares in the Company by exercising powers of judicial review under Article 199 of the Constitution which are too wide and sweeping to be adopted in every case.
The doctrine of indoor management is not applied to the transactions entered into between a registered company and a third party in good faith, on the basis of any statutory provisions in the Companies Ordinance. This doctrine is applicable to such transaction on the principle of public policy, equity arid good conscience, to protect an innocent person dealing in good faith with a corporate entity.
Commissioner of Income Tax, Peshawar Zone, Peshawar v. Messrs Siemen A.G. 1991 PTD 488; Government of N.‑W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360; Messrs Airport Support Services v. The Airport Manager. Quaid‑e-Azam International Airport, Karachi and others 1998 SCMR 2268 and Nizamuddin and another v. Civil Aviation Authority and 2 others 1999 SCMR 467 ref.
A.K. Dogar. Senior Advocate Supreme Court and M. Ozair Chughtai, Advocate‑on‑Record (absent) for Appellant (in Civil Appeal No. 1534 of 1998).
Abid Hassan Minto, Senior Advocate Supreme Court and Sh. Masood Akhtar, Advocate‑on‑Record (absent) for Respondent No.1 (in Civil Appeal No.1534 of 1998) and Abid Hussain Minto, Senior Advocate Supreme Court and M.A. Qureshi, Advocate‑on‑Record (absent) for Respondent No. 2 (in Civil Appeal No. 1535 of 1998).
Malik Muhammad Nawaz, Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record (absent) for Respondent No.2 (in Civil. Appeal No. 1534 of 1998).
S. M. Zafar. Senior Advocate, Supreme Court, Malik Muhammad Nawaz, Advocate Supreme Court and Tanvir Ahmad, Advocate‑on-Record (absent) for Appellants (in Civil Appeal No.1535 of 1998).
A.K. Dogar, Senior Advocate Supreme Court and Sheikh Masood Akhtar, Advocate‑on‑Record (absent) for Respondents Nos. 1 and 4-5 (in Civil Appeal No. 1535 of 1998).
Dates of hearing: 3rd and 4th March, 2004.
2004 S C M R 1290
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Sardar Muhammad Raza Khan, JJ
Mst. MUMLIKAT BEGUM‑‑‑Petitioner
Versus
Malik NASRULLAH‑‑‑Respondent
Civil Petitions Nos.210/P and 211/P of 2003, decided on 5th May, 2004.
(On appeal from the judgments dated 27‑9‑2002 passed by the Peshawar High Court, Peshawar in Civil Revisions Nos.49 and 50 of 2002).
North‑West Frontier Province Pre‑emption Act (X of 1987)‑‑‑
‑‑‑‑S. 24‑‑‑Deposit of 1/3rd of pre‑emption money within the period prescribed by the Court‑‑‑Application for extension of time and withdrawal of said application on the same day‑‑‑Showing willingness to deposit the pre‑emption money on the fixed date‑‑‑Effect‑‑‑Pre‑emptor though sought extension of time through the application but, may be by realizing the consequences, had again applied on the same date for the deposit of pre‑emption money‑‑‑Trial Court, in circumstances, had no reason or logic to keep that application pending till the decision of the said application for extension because said application had become totally redundant when the pre‑emptor had expressed her willingness to deposit the pre‑emption money there and then on the fixed date‑‑‑Had the trial Court allowed the same, the pre‑emptor would have deposited the amount, her bona fides or mala fides could have been checked only if she had failed to make deposit on the fixed day on the basis of her second application‑‑‑Lack of application of mind by the Trial Court had made the pre‑emptor to suffer at the hands of the Court, but since no one could be condemned by an act of Court petitions were accepted and impugned judgments were set aside.
Fateh Muhammad Khan, Advocate‑on‑Record for Petitioner.
Abdul Qayyum Sarwar, Advocate Supreme Court with Syed Safdar Hussain, Advocate‑on‑Record for Respondent.
Date of hearing: 5th May, 2004.
2004 S C M R 1292
[Supreme Court of Pakistan]
Present: Javed Iqbal, Sardar Muhammad Raza Khan and Khalil‑ur‑Rehman Ramday, JJ
NAZIR AHMAD and others‑‑‑Appellants
Versus
MUHAMMAD QASIM and others‑‑‑Respondents
Civil Appeals Nos.708 and 709 of 1999, decided on 2nd June, 2004.
(On appeal from the judgment, dated 2‑3‑1998 passed by the Lahore High Court, Lahore in Civil Revisions Nos.2101 and 2102 of 1990).
(a) Civil Procedure Code (V of 1908)‑‑‑
‑‑‑‑O. XXVI, R. 9‑‑‑Local Commission, appointment of‑‑‑Words "elucidating any matter in dispute" in O.XXVI, R.9, C.P.C. would clearly indicate that Local Commissions are appointed only to get certain explanations and classifications regarding the matters in confusion‑‑Occasions can be there when the evidence on record does not furnish a clear picture and certain ambiguities become apparent on record‑‑‑Court, in such circumstances, is empowered to issue Local Commission so as to elucidate, clarify or explain the matter in question‑‑Where no ambiguity was confronted in the case, rather, the evidence was not a all relied upon, instead the parties agreed that the entire matter be decided by a nominated Advocate, such appointment would not coincide with the appointment of a Local Commission under O.XXVI, R.9, C.P.C.
(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑--
‑‑‑‑Art. 33‑‑‑Arbitration Act (X of 1940), Ss.21, 22, 23, 24 & 25‑‑Admission by persons expressly referred to by party to suit‑‑‑Arbitration in suits‑‑‑Ingredients of Art. 33, Qanun‑e‑Shahadat, 1984‑‑‑Whenever a case is agreed upon to be decided on the statement of a referee, the matter might fall under Art.33 of Qanun‑e‑Shahadat, 1984 but a reference to a third person to decide a matter in dispute is a reference to arbitration‑‑‑Where the parties the case never agreed that nominated person should make a statement simpliciter furnishing information but the entire decision of the dispute between the parties was entrusted to him, such arrangement was more close to an arbitration in suits under Chap. IV, Arbitration Act, 1940 rather than to an appointment under Art.33, Qanun‑e‑Shahadat, 1984.
Article 33, Qanun‑e‑Shahadat, 1984 in unambiguous words goes to lay down that the reliance by the party to a litigation is made on the statement of a third party. The law provides that if the matter is left to the statement of third party, such statement is to be considered as admission by the party. The illustrations below Article 33 further elaborate the matter that when the question is, whether a horse sold by A to B is sound, the statement of regarding the condition of horse would amount to an admission provided A made an offer to B to "Go and ask C. C knows all about it". There are four ingredients of Article 33 aforesaid: First that some party must have referred the matter to a third person. Second, that the reference must be for information and third, that the referee must make a statement qua such information and lastly that such statement shall be deemed to be an admission by the party who expressly referred to such third person for information. Here the status of such third person is more of a witness than of either an arbitrator or a local commission. Whatever is stated by the third party is nothing but an information. Whenever a case is agreed upon to be decided on the statement of a referee, the matter might fall under Article 33 of Qanun‑e-Shahadat but a reference to a third person to decide a matter in dispute is a reference to arbitration.
In the present case, the parties never agreed that nominated person should make a statement simpliciter furnishing information but the entire decision of the dispute between the parties was entrusted to him. It is, therefore, more close to an arbitration in suits under Chapter IV of the Arbitration Act rather than to an appointment under Article 33 of Qanun‑e‑Shahadat.
(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑--
‑‑‑‑Art. 33‑‑‑Reference for decision and referee's "Faisla" could not be treated as a "statement furnishing information" within the meaning of Art.33 of Qanun‑e‑Shahadat, 1984.
(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑--
‑‑‑‑Art. 33‑‑‑Arbitration Act (X of 1940), Ss.22, 23, 24 & 25‑‑‑Parties, in the present case, had not referred to the nominated person to make some statement but to render a complete decision regarding the entire matter in dispute so much so that a fee was also fixed for the purpose and that such appointment squarely amounted to arbitration in status‑‑‑No decree therefore could be passed on such decision, which, for all intents and purposes, was an award, unless the parties were given an opportunity to furnish their objections within the period in the manner provided by Arbitration Act, 1940.
A.G. Tariq, Advocate Supreme Court for Appellants.
Sh. Zamir Hussain, Advocate Supreme Court for Respondent No. 2.
Respondents Nos. 1 and 3: Ex parte.
Date of hearing; 1st October, 2003.
2004 S C M R 1299
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ
Dr. AZIM‑UR‑REHMAN KHAN MEO‑‑‑Appellant
Versus
GOVERNMENT OF SINDH and another‑‑‑Respondents
Civil Appeal No. 1866 of 2000, decided on 12th April, 2004.
(On appeal from the judgment of the High Court of Sindh at Karachi, dated 27‑1‑2000 passed in Constitution Petition No.D‑1005 of 1999).
(a) Constitution of Pakistan (1973)‑‑--
‑‑‑Arts. 212(3) & 199‑‑‑Civil service‑‑‑Appointment‑‑‑Terms and conditions‑‑‑Jurisdiction of High Court under Art.I99 of the Constitution‑‑‑Scope‑‑‑Leave to appeal was granted by the Supreme Court, inter alia, to consider the questions, as to whether the Constitutional jurisdiction of High Court could be exercised when the nature of the appointment by itself was in dispute, as the terms and conditions of service flow from the nature of the appointment; whether in case of writ of quo warranto challenging the legal authority of holder of public office, it was essential for the employee to have a locus standi to file a writ and whether the employee was guilty of misconduct by using the documents of the Service and General Administration Department without permission by the concerned authority.
(b) Constitution of Pakistan (1973)‑‑‑--
‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court under Art. 199 of the Constitution‑‑‑Scope‑‑‑Principles governing writ of quo warranto.
Under Article 199 of the Constitution all the reliefs obtainable under it are purely discretionary and on the principles governing writs of quo warranto the relief under Art. 199(2)(b)(ii) is particularly so. Quo warranto is not issued as a matter of course. The Court can and will enquire into the conduct and motive of the relator. No precise rule can be laid down for the exercise of discretion by the Court in granting or refusing an information in the nature of quo warranto All the circumstances of the case taken together must govern the discretion of the Court. The discretion has to be exercised in accordance with judicial principles. The writ is not to issue as a matter of course on sheer technicalities on a doctrinaire approach.
Grant of relief in writ jurisdiction irrespective of its kind, is discretionary which is required to be exercised judiciously but the High Court would be fully competent while exercising such discretion to test the bona fides of the relator to see if he has come with clean hands.
In case it is determined that the petitioner had approached the Court with ulterior motive, mala fide intention and as an instrument of others, the relief can be declined.
In respect of order of quo warranto it is not necessary that a person must be aggrieved and no such restriction could be placed which is in fact contemplated under sub‑clause (a) of clause 1 of Article 199 of the Constitution and accordingly any person irrespective of the fact whether he is an aggrieved person or otherwise can invoke the Constitutional jurisdiction by way of writ of quo warranto against usurpation of a public office by a person without having any lawful authority.
Federation of Pakistan v. Muhammad Saifullah Khan PLD 1989 SC 166; Federation of Pakistan v. Muhammad Saifullah Khan 1988 SCMR 1996; Azizur Rahman Chowdhury v. M. Nasiruddin PLD 1965 SC 236; Hari Shankar v. Sukhdeo Prasad AIR 1954 All. 227; M.U.A. Khan v. M. Sultan PLD 1974 SC 228; Salahuddin v. Frontier Sugar Mills and Distillery Ltd. PLD 1975 SC 244 and M.U.A.. Khan v. M. Sultan 1981 SCMR 74 ref.
(c) Constitution of Pakistan (1973)‑‑‑--
----Arts. 199 & 212(3)‑‑‑Constitutional petition under Art.199 of the Constitution‑‑‑Civil service‑‑‑Removal from public office‑‑‑Issuance of writ of quo warranto‑‑‑Scope‑‑‑High Court cannot issue writ in the nature of quo warranto by removing a person from public officeIncumbent in the present case did not suffer from any disqualification to hold a public office or to warrant removal from such office because issue of qualification related to terms and conditions of service which aspect of the matter fell exclusively within the jurisdictional domain of Service Tribunal‑‑‑Invocation of Constitutional jurisdiction was not only mala fide but amounted to blackmailing and harassment.
(d) Constitution of Pakistan (1973)‑‑--
‑‑‑‑Arts. 212 & 199‑‑‑Civil service‑‑‑Misconduct‑‑‑Employee of the Provincial Government by taking out record from the office unlawfully filed Constitutional petition before High Court alleging that the, Government was acting in violation of law and that too not in a case where his rights were not affected‑‑‑Such action, ex facie amounted to misconduct on his part‑‑‑Supreme Court directed the Chief Secretary of the Provincial Government to initiate disciplinary action against the employee for grave misconduct which shall be finalized within a period of two months, report whereof be sent to the Registrar of Supreme Court to be placed before the Judges of the Supreme Court for their perusal and information.
M.M. Aqil Awan. Advocate Supreme Court and Faizanul Haq, Advocate‑on‑Record for Appellant.
Qazi Khalid Ali, Additional Advocate‑General, Sindh for Respondent No. 1.
Manzoor Ali Khan, Advocate Supreme Court and Raja Sher Muhammad Khan, Advocate‑on‑Record for Respondent No.2.
Date of hearing: 12th April, 2004.
2004 S C M R 1305
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Falak Sher, JJ
HABIB BANK LIMITED through Attorneys‑‑‑Petitioner
Versus
MUHAMMAD ABDUL SAMAD KHAN and another‑‑‑Respondents
Civil Petitions for Leave to Appeal Nos. 1340 and 1341 of 2003, decided on 27th May, 2004.
(On appeal from the judgment/order of the Federal Service Tribunal, Islamabad, dated 14‑4‑2003, passed in Appeals Nos.201(P)CE. 494(P)CE and 203(P)CE of 2001).
Constitution of Pakistan (1973)‑‑‑
‑Art. 212(3)‑‑‑Bank employees‑‑‑Relevant notification by the competent authority was not produced‑‑‑Actions taken by the department as well as the penalties imposed upon the employees were mala fide‑‑Impugned judgment of Service Tribunal was self‑explanatory and was entirely based on the proper appreciation of facts, law and decisions of the Supreme Court. which were quoted in the said judgment‑‑‑No substantial question of law of public importance‑as envisaged under Art. 2112(3) of the Constitution being involved in the petitions, same were dismissed.
Shahid Anwar Bajwa, Advocate Supreme Court and M.S Khattak, Advocate‑on‑Record for Petitioners (in both petitions).
Shah Abdur Rashid, Senior Advocate Supreme Court and Ejaz Muhammad Khan. Advocate‑on‑Record for Respondents (in both petitions).
Date of hearing: 27th May, 2004
2004 S C M R 1308
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Seed Deedar Hussain Shah, JJ
PAKISTAN AUTOMOBILE CORPORATION LIMITED through Chairman‑‑‑Appellant
Versus
MANSOOR‑UL‑HAQUE and 2 others‑‑‑Respondents
Civil Appeal No.34 of 2001, decided on 6th May, 2004.
(On appeal from judgment dated 6‑10‑2000, passed by the Federal Service Tribunal, Islamabad, in Appeal No.773(K) of 1998).
(a) Service Tribunals Act (LXX of 1973)‑‑‑--
‑‑‑‑S. 2‑A‑‑‑Civil service‑‑‑Lien of the employee of statutory corporation could not be terminated on account of his transfer to subsidiary company of the statutory corporation‑‑‑Such employee though was not a "civil servant" in strict sense but the Constitution ordained that persons placed in the same position shall be treated equally and there should be no discrimination‑‑‑Contention of the employer statutory corporation that Service Tribunal had no jurisdiction and the employee was not a civil servant, was misconceived and not acceptable.
Mohsin Ali Hasani v. Government of Pakistan 1990 SCMR 1685; Federal Public Service Commission v. Syed Muhammad Afaq PLD 2002 SC 167 and Province of Punjab v. Ibrar Younas Butt 2004 SCMR 67 not relevant.
Mazhar Ali v. Federation of Pakistan 1992 SCMR 435; Sajjad Hussain v. Secretary, Establishment Division 1996 SCMR 284 and Executive Engineer, Provincial Building Circle, Lahore v. Muzaffar Bil Haq and 2 others 2000 SCMR 656 ref.
(b) Civil Procedure Code (V of 1908)‑‑--
‑‑‑‑O. XXVII‑A‑‑‑Where in a matter interpretation of the Constitution was not involved as required under O.XXVII‑A, C.P.C., notice to the Attorney General was not necessary.
(c) Civil service‑‑‑‑‑‑-
-----Back‑benefits, award of‑‑‑Where plea of back‑benefits was not supported by documentary evidence to the effect that when employee was out of service, he did not work anywhere to gain financial benefits, benefits were declined to the employee.
Ch. Muhammad Jamil, Advocate Supreme Court and Muzaffar Ali Khan, Advocate‑on‑Record (absent) for Appellant.
S. Shahanshah Hussain, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate‑on‑Record (absent) for Respondent No. 1.
Respondents Nos.2 and 3: Ex parte
Date of hearing: 6th May, 2004.
2004 S C M R 1315
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ
Syed SHAUKAT IQBAL‑‑‑Petitioner
Versus
SECRETARY TO THE GOVERNMENT OF THE PUNJAB‑‑‑Respondent
Civil Review Petition No.268 of 2000 in Civil Petition No.737 of 2000, decided on 28th May. 2004.
(On review from the judgment of this Court, dated 3‑10‑2000 passed in C.P. No.737 of 2000 and on appeal from judgment of the Punjab Service Tribunal, Lahore, dated 1‑3‑2000 passed in Appeals Nos. 1162, 1367, 1368, 1264, 1268, 1369 and 1396 of 1998).
(a) Punjab Civil Services Pension Rules, 1963‑‑‑-
‑‑‑‑R. 1.8(a)‑‑‑Scope of R.1.8(a), Punjab Civil Services, Pension Rules, 1963‑‑‑Rule 1.8(a) speaks about institution of proceedings and has got no concern with the service notice upon the Civil Servant‑‑‑Only mandatory prerequisite as embodied in R.1.8(a) seems to be that fair opportunity of hearing must be afforded.
Muhammad Said Khan v. Government of West Pakistan PLD 1969 Pesh. 147; Sultan Muhammad Naeem Khan v. Chief Secretary to Government of West Pakistan PLD 1969 Pesh. 237; Government of N.‑W.F.P. v. Muhammad Said Khan PLD 1973 SC 514; Province of Punjab v. Syed Munir Hussain Shah 1998 SCMR 1326; Malik Ehsanul Haq v. Government of the Punjab 1994 PLC (C.S.) 454; Muhammad Hafeezur Rehman Hashmi v. Secretary, Finance Department 1988 PLC (C.S.) 245; Farooq Ahmed Khan v. Government of Punjab 1996 PLC (C.S.) 817; Syed Munir Hussain Shah v. Secretary, Livestock Government of the Punjab 1995 PLC (C.S.) 943; Abdul Aziz Virk v Secretary, Education (Schools) 2001 PLC (C.S.) 661 ref.
(b) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 188‑‑‑Supreme Court Rules, 1980, O.XXV‑‑‑Review of Supreme, Court judgment‑‑‑All the points raised at the time of arguing review petition were dilated upon, discussed and decided in a comprehensive manner‑‑‑Review petition was dismissed.
(c) Constitution of Pakistan (1973)‑‑‑
‑‑‑Art. 188‑‑‑Supreme Court Rules, 1980, O XXVI‑‑‑Review of Supreme Court judgment‑‑‑Scope‑‑‑Review petition is not competent where neither any new and important matter or evidence has been discovered nor is any mistake or error apparent on the face of the record‑‑‑Such error may be an error of fact or of law but the same must be self‑evident and floating on surface and not requiring any elaborate discussion or process of ratiocination.
Master Tahilram v. Lilaram 1970 SCMR 622; Abdul Khaliq Qureshi v. Chief Settlement and Rehabilitation Commissioner 1968 SCMR 800; Rehmatullah v. Abdul Majid 1968 SCMR 838; Hassan Din v. Claim Commissioner, Lahore 1968 SCMR 1047(2) Qamar Din v. Maula Bakhsh 1968 SCMR 1042(1); Muhammad Akram v. State 1970 SCMR 418 and Nawab Bibi v. Hamida Begun 1968 SCMR 104 ref.
(d) Constitution of Pakistan (1973)‑‑‑--
‑‑‑‑Art. 188‑‑‑Supreme Court Rules, 1980, O.XXVI‑‑‑Review, of Supreme Court judgment‑‑‑Scope‑‑‑If judgment or finding, although suffering from an erroneous assumption of facts, is sustainable on other grounds available on record, review is not justifiable notwithstanding error being apparent on the face of the record.
Zulfikar Ali Bhutto v. State 1979 SCMR 427 ref.
M. Bilal, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioner.
Ms. Afshan Ghazanfar, A.A.‑G Punjab for Respondent.
Date of hearing: 28th May, 2004.
2004 S C M R 1319
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Khalil‑ur‑Rehman Ramday, JJ
GENERTECH PAKISTAN LTD. and others‑‑‑Appellants
Versus
INCOME TAX APPELLATE TRIBUNAL OF PAKISTAN, LAHORE and others‑‑‑Respondents
Civil Appeal No.1357 of 1999 alongwith Civil Appeals Nos.916‑918, 1069, 1070 of 2000 and Civil Appeal No.1295 of 2001.
(On appeal from the judgments/order, dated 14‑1‑1999, 11‑4‑2000, 26‑6‑2000, 7‑6‑2000 passed by Lahore High Court, Lahore in I.T.A..No.1 of 1999, Writ Petition No.4847 of 1998, 8907 of 1998, 12149 of 2000, 10727 of 2000, 10718 of‑2000 and I.T.A. N6.493 of 2000).
(a) Income Tax Ordinance (XXXIX of 1979)‑‑‑--
‑‑‑‑Second Schedule, Item 176 & S.80‑B(2)(b)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by the Supreme Court to consider as to whether the High Court had not correctly construed the scope of Item 176, Second Schedule and S.80‑B(2)(b) of the Income Tax Ordinance, 1979 in accordance with the law laid down by. Supreme Court in Messrs Packages Ltd. v. Commissioner of Income Tax 1993 SCMR 1224.
Messrs Packages Ltd. v. The Commissioner of Income Tax 1993 SCMR 1224 ref.
(b) Income Tax Ordinance (XXXIX of 1979)‑‑‑--
‑‑‑‑Ss. 30, 80‑B & Second Schedule Item 176‑‑‑Income from other sources‑‑‑Electric Power Generation Project‑‑‑Exemption‑‑ Interest earned by the assessee from the Share Capital deposited in the Banks whether fell within the scope of "income from other sources" under S.30, Income Tax Ordinance, 1979‑‑Principles.
Item 176 of Second Schedule of the Income Tax Ordinance 1979 provides in clear terms that "profits and gains derived by an assessee from Electric Power Generation Project, set up in Pakistan on or after 1st of July, 1998 shall be exempted from total income tax.", Essentially, profits and, gains from the Electric Power Generation Project is distinct and different from the interest being obtained by the Company on the deposit of share capital in‑the Banks, during the financial years for which the return of income under the relevant provision of Ordinance is filed and the exemption is claimed from the payment of income tax under Item 176 of Second Schedule of the Ordinance. Electric Generating Plants of companies had started functioning in 1994‑95 but they instead of claiming exemption on the profits/gains from Power Generation, claimed it from the deposit of the share capital lying in the Banks. It is to be seen that as soon as a Company goes in production it cannot claim exemption of income tax on the interest of share capital deposited in Banks because on commencement of the production, profits and gains are to be earned out of the income of Electric Generation independently.
The share capital deposits in the Banks by the assessees provide a separate income to them after post production stage of the Power Generating activity, therefore, on the income of interest no exemption can be claimed under Item 176 Second Schedule of the Ordinance as it is a different income from the profits/gains being earned from post production activity of power generation.
Under section 80‑B of the Ordinance such concession is not available to Public Limited Companies as its subsection (1) in categorical terms has extended its benefits to an individual, unregistered firm, association of persons, Hindu undivided family or artificial juridical person.
Messrs Packages Ltd. v. The Commissioner of Income Tax 1993 SCMR 1224 distinguished.
Raja Muhammad Akram, Senior Advocate Supreme Court, Ejaz Muhammad Khan Advocate‑on‑Record (absent) and M.A. Qureshi, Advocate‑on‑Record (absent) for Appellants (in C.As. Nos. 1357, 916 of 1999, 917, 918, 1069, 1070 of 2000 and 1295 of 2001).
Muhammad Ilyas Khan, Senior Advocate Supreme Court, Mahmood‑ul‑Islam, Advocate‑on‑Record (absent) and Muhammad Aslam Chatha, Advocate‑on‑Record for Respondents (in C. As. Nos. 1357, 916 of 1999, 917, 1069, 1070 of 2000 and 1295 of 2001).
Malik Muhammad Nawaz, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate‑on‑Record for Respondents (in C.A. No.918 of 2000).
Dates of hearing 7th and 18th May, 2004.
2004 S C M R 1325
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Faqir Muhammad Khokhar, JJ
Ch. ABDUL MAJID‑‑‑‑Petitioner
Versus
SADAQAT SAEED MALIK and others‑‑‑‑Respondents
Civil Petition No. 738‑L of 2002, decided on 20th May, 2004.
(On appeal from the judgment dated 19‑11‑2001 of the Lahore High Court, Lahore, passed in R. F. A. No. 158 of 1990).
Banking Companies (Recovery of Loans) Ordinance (XIX of 1979)‑‑‑--
‑‑‑‑Ss. 2(f), 3, 6(1)(a) & 8(3)‑‑Transfer of Property Act (IV of 1882), S.53‑A‑‑‑Civil Procedure Code (V of 1908), O.XXI, Rr.97, 100, 103 & O.XLIII R.1(ii)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑Execution of decree for recovery of loan‑‑‑Auction sale by High Court as Special Court (Banking)‑‑‑Suit for specific performance of agreement to sell the property in question by third party‑‑‑Maintainability‑‑‑Protection of provisions of S.53‑A of the Transfer of Property Act, 1882 to such third party‑‑‑Scope and extent under O.XXI, 8.103, C.P.C.‑‑‑Party aggrieved by an order made by the executing Court could not institute a suit as it could bring an appeal under O.XLIII, R.1(ii), C.P.C.‑‑Provisions of S.3, Banking Companies (Recovery of Loans) Ordinance, 1979 were not intended to permit a party to file a separate civil suit in disregard of the provisions of O.XXI, 8.103, C.P.C. and to frustrate the execution of decree passed by the Special Court (Banking)‑‑‑Third party could have pursued his objection petition before the Special Court to its logical conclusion but he was not entitled to institute a separate suit as his objections could be looked into by Special Court‑‑‑Suit property, in the present case; had already been mortgaged by the judgment‑debtor with the Bank judgment passed by High Court did not suffer from any legal infirmity so as to warrant interference by Supreme Court‑‑‑Petition for leave to appeal was dismissed.
In the present case, the suit property was auctioned by the High Court in favour of the auction‑purchaser. The third party himself had filed objection petition on the basis of his alleged agreement to sell in respect of the suit property. The same was dismissed by the High Court as withdrawn and the judicial sale of the suit property was confirmed in favour of the auction‑purchaser by following the procedure as laid down in C.P.C. In the facts and circumstances of the case it could not be said that the third party could not seek his remedy before the High Court in terms of Order XXI, C.P.C. The provisions of Rule 103 of O.XXI, C.P.C. were amended by the Law Reforms Ordinance, 1972, whereby it was provided that all questions arising as to the title, right or interest, or possession of immovable property between the applicants under Rules 97 and 100 and the opposite party, would be adjudged upon and determined by the Court, and no separate suit would lie for the determination of any such matter. At the same time a corresponding amendment was also introduced in Order XLIII, Rule 1 (ii) C.P.C. whereby an order under Rule 103, C.P.C. was made appealable. The object of these provisions was to avoid multiplicity of litigation and to confer exclusive jurisdiction on the executing Court to decide the objections in respect of the execution of decree. The case of Mohiuddin Molla PLD 1962 SC 119 is distinguishable from the facts of the present case.
Third party could not acquire a better title over the suit property than the judgment‑debtor under whom he was claiming his inchoate rights. The protection of section 53‑A of Act, 1882, was not available to such party the auction‑purchaser of the suit property which was sold to him by the High Court in execution of a decree. The auction‑purchaser had nothing to do with the judgment‑debtor and, was not claiming his rights through or under him. The judgment‑debtor was" no more the owner of the suit property which had been auctioned in favour of the auction‑purchaser. In, these circumstances, the suit for specific performance of the agreements filed by the third party in respect of the suit property was barred by law. Section 53‑A of the Transfer of Property Act, 1882, creates an estoppel between a transferor and a transferee of an immovable property. It does not bind a third party who does not claim under either of them.
Section 53‑A of the Transfer of Property Act did not operate to create a form of transfer of property which was exempt from registration. It created no real right. It merely created rights of estoppel between the proposed transferee and transferor which had no operation against third persons not claiming under those persons.
The part performance under section 53‑A of the Act, 1882, conferred upon the transferee the privilege of invoking the doctrine embodied therein only as a shield against any invasion of his rights by the transferor or person claiming under him.
By the provisions of sections 2(f) and 6(1)(a) of the Banking Companies (Recovery of Loans) Ordinance, 1979 as they stood at the relevant time, the High Court in exercise of its original civil jurisdiction was vested with all the powers of a Civil Court under the Code of Civil Procedure, 1908, in respect of a case in which the outstanding amount of the loan exceeded one million rupees. Subsection (4) of section 6 expressly provided that no Court other than a Special Court would have or exercise any jurisdiction with respect ° to any matter to which the jurisdiction of a Special Court extended under the Ordinance, including a decision as to the execution of a decree passed by a Special Court. It was further provided that all proceedings, including the proceedings for the execution of a decree within the jurisdiction of a' Special Court, by whatever Court passed, pending in any Court would stand transferred to the Special Court. By virtue of section 8(3) of the Ordinance, as it originally existed, a Special Court was required, on the application of the decree holder, to pass an order for execution of the decree as arrears of land revenue or such other manner as it might deem fit. Therefore, there was nothing to prevent the Special Court to follow the procedure provided by the C.P.C. in appropriate cases, for execution of the decree.
Under Rule 103, Order XXI, C.P.C., a party aggrieved by an order made by the executing Court, could not institute a suit as it could bring an appeal under clause (ii) of Rule 1 of Order XLIII, C.P.C. the provisions of section 3 of the Ordinance were not intended to permit a party : to file a separate civil suit in disregard of the provisions of Rule 103 of Order XXI, C.P.C. and to frustrate the execution of decree passed by the Special Court (Banking). Third party could have pursued his objection petition before the Special Court to its logical conclusion. He was not entitled to institute a separate suit as his objections could be looked into by the Special Court. The suit property had already been mortgaged by the judgment‑debtor with the bank. Judgment passed by the High Court did not suffer from any legal infirmity so as to warrant interference by Supreme Court.
S.N. Banerji and another AIR 1941 PC 128; P&T Cooperative Housing Society Ltd., Karachi v. Ch. Manzoor Ahmed Sahi PLD 1961 Kar. 53; Yeditha Satyanarayanamurty and others v. Tadi Subrahmanyam and others AIR 1959 Andhra Pradesh 534; Stuart & Co. v. C. Mackertich AIR 1963 Calcutta 198 and Shamim Akhter v. Muhammad Rasheed PLD 1989 SC 575 ref.
Mian Fazal‑e‑Mehmood, Advocate Supreme Court and Ch. Akhter Ali, Advocate‑on‑Record for Petitioner.
Gulzarin Kiyani, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Respondent No.4.
Date of hearing: 20th May, 2004.
2004 S CM R 1334
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, C.J. Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ
PERVEZ IQBAL‑‑‑Petitioner
Versus
FEDERATION OF PAKISTAN and others‑‑‑Respondents
Constitutional Petition No.41 of 2002, decided on 18th February 2003.
(On appeal from the judgment of Chief Court Northern Areas, Gilgit, dated 29th August, 2002, passed in Criminal Appeal No.5 of 2001)
(a) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Arts. 184(3) & 185(3)‑‑‑Original and appellate jurisdiction of Supreme Court‑‑‑Not available against the judgments/orders passed by the Chief Court of Northern Areas‑‑‑Judgments or orders passed by the Chief Court of Northern Areas are not challengeable before Supreme Court under Art.185 of the Constitution, 1973‑‑‑Provisions of Art. 184 of the Constitution, 1973, can be invoked by any citizen of Pakistan including the peoples of Northern Areas in a matter of public importance involving the question of fundamental rights, but the individual grievances arising out of the judgment of any Court, Tribunal or Authority, either in the Northern Areas or in any other part of Pakistan, cannot be agitated before the Supreme Court under Art.184 of the Constitution, 1973‑‑‑Remedy of an appeal or a petition under Art.185(3) of the Constitution can be availed before the Supreme Court only against the judgments; orders and decrees of the High Courts in the Provinces and no such appeal or petition can be filed in the Supreme Court against the judgments, orders, decrees and sentences passed by the Chief Court, Northern Areas, the status of which is not that of the High Court of the Province.
(b) National Accountability Ordinance (XVIII of 1999)‑‑‑
------S.9----Constitution of Pakistan (1973), Art. 184(3)‑‑‑Petition under Art.184(3) of the Constitution‑‑Maintainability‑‑‑Accused was convicted in a criminal case by an Accountability Court at Gilgit and the appeal preferred by him before the Chief Court of Northern Areas, Gilgit, was dismissed with reduction in sentence‑‑‑According to the criminal law in Pakistan a convict could avail the remedy of one appeal as of right to challenge his conviction and sentence and such right of appeal was also available in the Northern Areas‑‑‑Accused wanted to use the provisions of Art.184 of the Constitution for the redressal of his individual grievances and not in a matter involving the question of public importance relating to the enforcement of any of the fundamental rights guaranteed by the Constitution‑‑‑Petition was not maintainable and was dismissed accordingly.
Al‑Jehad Trust through Habibul Wahab Al‑Khairi, Advocate and 9 others v. Federation of Pakistan 1999 SCMR 1379 ref.
Muhammad Ikram Chaudhry, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing: 18th February, 2003.
2004 S C M R 1338
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Sardar Muhammad Raza Khan, JJ
ZAHEER‑UD‑DIN BABAR and another‑‑‑‑Petitioners
Versus
ALLAH LUBHAIYA‑‑‑‑Respondent
Civil Petition No.3465‑L of 2001, decided on 19th June, 2002.
(On appeal from the judgment of the Lahore High Court, Lahore dated 4‑10‑2001 passed in Civil Revision No. 930 of 1993).
Punjab Pre‑emption Act (IX of 1991)‑‑‑
‑‑‑‑S.34(2)‑‑‑North West Frontier Province Pre‑emption Act (X of 1987), S.35(2)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Judgments and decrees passed before 1‑8‑1986‑‑‑Provisions of S.34(2) of Punjab Preemption Act, 1991 and S.35(2) of North West Frontier Province Preemption Act, 1987‑‑‑Comparison‑‑‑Scope and consequence of both the provisions are the same which were meant to protect the judgments and decrees passed in cases and appeals before the target date of 31‑7‑1986 and if a decree in favour of pre‑emptor was not passed before the target date; pending proceedings could not continue in accordance with the provisions of the repealed Act‑‑‑Judgment and decree having not been passed by the Trial Court prior to, the target date of 31‑7‑1986, therefore, High Court had rightly allowed revision petition and the .suit was dismissed‑‑‑Judgment and decree passed by High Court did not warrant for interference by Supreme Court under Art.185(3) of the Constitution‑‑‑Leave to appeal was refused.
Babar Shehzad v. Said Akbar 1999 SCMR 2518; Government of N.‑W.F.P. v. Said Kamal Shah PLD 1986 SC 360; Sardar Ali v. Muhammad Ali PLD 1988 SC 287; Muhammad Shoaib v. Member (Revenue) PLD 1988 SC 355; Ghulam Qadir v. Nawab Din PLD 1988 SC 701: Aiwaz Khan v. Allah Bukhsh PLD 1988 SC 730; Ahmed v. Abdul Aziz PLD 1989 SC 771; Sultan v. Habib Ahmad PLD 1990 SC 897; Aziz Begum v. Federation of Pakistan PLD 1990 SC 899; Muhammad Yasin v. Khan Muhammad PLD 1990 SC 1060; Muhammad Ismail v. Ghulam Haider 1991 SCMR 1443; Rozi Khan v. Karim Shah 1992 SCMR 445; Zafar Ullah Khan v. Muhammad Khan 1993 SCMR 696; Asghar Abbas v. Muhammad Amin 1993 SCMR 2022; Said Amir Khan v. Shahzadi Khatoon 1993 SCMR 2050; Khushal Khan v. Rao Nawaz 1994 SCMR 814; Hasan Mahmood v. Bashir Ahmad 1994 SCMR 1624; Muhammad Salam v. Wali Muhammad 1997 SCMR 108 and Muhammad Sarwar v. Muhammad Hussain 1998 SCMR 1938 ref.
Abdul Hafeez Cheema, Advocate Supreme Court and S. Abul Asim Jafri, Advocate‑on‑Record for Petitioners.
Taki Ahmad Khan, Advocate Supreme Court and Ch. Mebdi Khan Mehtab, Advocate‑on‑Record for Respondent.
Date of hearing: 19th June, 2002.
2004 S C M R 1342
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, C.J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ
ABBAS ALI SHAH and 5 others‑‑‑‑Appellants
Versus
GHULAM ALI and another‑‑‑‑Respondents
Civil Appeal No. 1932 of 1996, heard on 29th November, 2002.
(On appeal from the order, dated 30‑4‑1995 of the High Court of Sindh, Circuit Bench, Hyderabad passed in Second Appeal No. 6 of 1985).
(a) Registration Act (XVI of 1908)‑‑‑
‑‑‑‑S. 50‑‑‑Registration of document‑‑‑Effect‑‑‑Document which is registered under Registration Act, 1908, acquires the status of public document‑‑‑General presumption of notice is attached with a registered document from the date of its registration unless lack of knowledge is proved through convincing evidence‑‑‑Presumption of notice is raised from the date of registration of document.
(b) Specific Relief Act (I of 1877)‑‑‑-
‑‑‑‑S. 12‑‑‑Limitation Act (IX of 1908), Art. 113‑‑‑Registration Act (XVI of 1908), Ss. 17 & 50‑‑‑Specific performance of contract ‑‑‑Limitation‑‑Computation‑‑‑Disputed sale made by owner through registered sale deed‑‑‑Effect‑‑‑When in the agreement, no date was fixed for performance of contract, limitation for the purpose of suit for specific performance is computed from the date of breach of contract‑‑‑In absence of any evidence to the contrary, limitation would be deemed from the date of registration of the sale‑deed.
(c) Specific Relief Act (I of 1877)‑‑‑--
‑‑‑‑S. 12‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 72, 117 & 120‑‑Specific performance of agreement to sell‑‑‑Execution of agreement‑‑‑Onus to prove‑‑‑Plaintiffs sought specific performance of agreement to sell and assailed registered sale‑deed of the suit‑land‑‑‑Defendants denied execution of any agreement to sell in favour of plaintiffs‑‑‑Trial Court dismissed the suit but Appellate Court allowed appeal and the suit was decreed‑‑‑High Court in exercise of jurisdiction under S.100, C.P.C. allowed the second appeal and the judgment and decree passed by Trial Court was restored‑‑‑Validity‑‑‑Case in which the execution of document was denied, the party producing such document was under heavy burden to prove its execution or genuineness of such document and in absence of any evidence, the document would remain unproved‑‑‑Out of five marginal witnesses, the plaintiffs produced only one witness who was also not found reliable‑‑‑Petition writer was also not called to the witness box to establish execution of the agreement‑‑‑No convincing evidence was brought by plaintiffs in support of existence of a valid agreement of sale between the parties‑‑‑Without proof of existence of agreement to sell the foundation of the suit of plaintiffs would demolish‑‑Appellate Court reversed the findings of Trial Court without logical reasons and also committed the error of misreading of evidence, therefore, High Court was right in disagreeing with the Appellate Court and rightly reversed the finding to second appeal‑‑‑Supreme Court declined to interfere with the judgment and decree passed by High Court in exercise of jurisdiction under S.100, C.P.C.‑‑‑Appeal was dismissed.
(d) Civil Procedure Code (V of 1908)‑‑‑--
‑‑‑‑S. 100‑‑‑Second appeal‑‑‑Jurisdiction of High Court‑‑‑Finding of fact at variance‑‑‑Effect‑‑‑Ordinarily the findings of Appellate Court are not interfered with in second appeal if the same are found to be substantiated by evidence on record and are supported by logical reasoning‑‑‑If the findings of the two Courts are at variance, the conflict would be seen to assess the comparative merits of such findings in the light of the facts of case and reasons in support of two different findings given by two Courts on a question of fact‑‑‑If findings of Appellate Court are not supported by evidence on record and the same are found without logical reasons or are found arbitrary or capricious, same can he rejected in second appeal.
M.M. Aqil, Advocate Supreme Court and Faizanul Haq, Advocate‑on‑Record (Absent) for Appellants.
Raja Abdul Ghafoor, Advocate Supreme Court/Advocate‑on-Record for Respondent No.2.
Respondent No. 1: Ex parte.
Date of hearing: 29th November, 2002.
2004 S C M R 1348
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ
MUHAMMAD AFZAL---Petitioner
Versus
THE STATE --- Respondent
Criminal Review Petition No. 29 of 2003, decided on 1st April, 2004.
(On appeal from the judgment, dated 19-9-2003 of this Court passed in Criminal Appeals Nos. 321 and 322 of 2001).
(a) Penal Code (XLV of 1860)---
----S. 302(b)---Constitution of Pakistan (1973), Art.188---Review petition---Maintainability---Scope---Points now raised on behalf of the accused had been considered thoroughly and repelled as discussed in the impugned judgment---Review was not meant for rehearing of the matter---Impugned judgment did not call for any interference---Review Petition was dismissed accordingly.
(b) Constitution or Pakistan (1973)---
----Art. 188---Review of judgments or orders by Supreme Court--Scope---Review is not meant for rehearing of the matter.
M. Zaman Bhatti, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioner.
Nemo for Respondent.
Date of hearing: 1st April, 2004.
2004 S C M R 1350
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Faqir Muhammad Khokhar, JJ
MUHAMMAD IRSHAD---Petitioner
Versus
SESSIONS JUDGE, OKARA and 2 others---Respondents
Criminal Petition No. 401-L of 2003, decided on 25th March, 2003.
(On appeal from the judgment of the Lahore High Court, Lahore, dated 20-1-2003 passed in Writ Petition No. 826 of 2003).
Penal Code (XLV of 1860)-----
----Ss. 337-A(i)/337-L(2)/34---Constitution of Pakistan (1973), Art. 185(3)---Sessions Court on complaint of the complainant against the Investigating Officer had stopped the investigation in the case and summoned the entire record---Constitutional petition filed by the accused assailing the said order was dismissed through the impugned order---Supreme e7ourt in view of the fact that challan had also been submitted in the Trial Court did not exercise discretion to grant leave to examine the question of further investigation of the case and directed the Trial Court to complete the trial and pronounce final judgment---Accused were allowed to produce before the Court all the evidence which they wanted to produce before the Investigating Officer---Leave to appeal was refused to accused with such observation.
Ch. Manzoor Hussain Basra, Advocate Supreme Court and Mehmud-ul-Islam, Advocate-on-Record for Petitioner.
Muhammad Riaz Loan, Advocate Supreme Court for Respondents.
Date of hearing: 25th March, 2003.
2004 S C M R 1352
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah Khalil-ur-Rehman Ramday and Falak Sher, JJ
MUHAMMAD PERVEZ---Petitioner
Versus
Mst. NABILA YASMEEN and 2 others---Respondents
Civil Petition for Leave to Appeal No.3144 of 2003, decided on 26th April, 2004.
(On appeal from order, dated 4-11-2003, passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi, in Writ Petition No.784 of 2003).
West Pakistan Family Courts Act (XXXV of 1964)---
----S. 13---Constitution of Pakistan (1973), Art.185(3)---Execution of decree---Warrant of arrest against attorney of the judgment-debtor---Suit for maintenance was decreed in favour of wife and minor daughter--Husband was living abroad and the whole proceedings were contested through attorney---During execution proceedings, the attorney made a statement regarding payment of decretal amount---Before next date of hearing, the husband revoked the power of attorney but the Executing Court issued non-bailable warrants against the attorney---Plea raised by the attorney was that the warrants could not be issued against him as the suit was not decreed against him---All the Courts below rejected the plea of the attorney---Validity---Once the decree was passed, the same could not be allowed to be set at naught through mala fide act of the judgment debtor whereby he might propose to revoke the power of attorney--Courts were aware of their authority and obligation to implement the decrees passed by them---Judgment-debtor was bound to satisfy the decree either himself or through the attorney who had been throughout representing the judgment-debtor in the suit---Orders of the Courts below were based on sound and cogent reasons which were neither perverse nor capricious and were the result of proper appreciation of facts and law--Leave to appeal was refused.
Abdur Rashid Awan, Advocate Supreme Court for Petitioner.
Nemo for Respondent.
Date of hearing: 26th April, 2004.
2004 S C M R 1355
[Supreme Court of Pakistan]
Present: Khalil-ur-Rehman Ramday, Muhammad Nawaz Abbasi and Faqir Muhammad Khokhar, JJ
NAZEER AHMAD and another---Petitioners
Versus
Hafiz GHULAM HUSSAIN ---Respondent
Civil Petition for Leave to Appeal Nos. 1611-L of 1999 and 1612-L of 1999, decided on 16th July, 2002.
(On appeal from the judgment of the Lahore High Court, dated 15-7-1999 passed in Civil Revision Nos. 317-D of 1999 and 318-D of 1999).
Constitution of Pakistan (1973)-----
----Art. 185(3)---Petition for leave to appeal---Concurrent findings of fact by the Courts below---Effect---Concurrent findings of three Courts were recorded against petitioners---Neither any illegality in the judgments could be pointed out, nor there was any misreading or non reading of evidence available on record---Concurrent findings of Trial Court and Appellate Court which were maintained by the High Court in exercise of revisional jurisdiction were based on proper appreciation of evidence and the same were neither perverse nor whimsical---Leave to appeal was refused.
Ch. Muhammad Sadiq, Advocate Supreme Court for Petitioners.
Nemo for Respondent.
Date of hearing: 16th July, 2002.
2004 S C M R 1356
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
MUHAMMAD DIN (deceased) through Mujahid Hussain Qasim and others---Petitioners
Versus
MUHAMMAD AMIN and others---Respondents
Civil Petition for Leave to Appeal No. 1238/L of 1999, decided on 30th May, 2002.
(On appeal from the judgment, dated 31-5-1999 of the Lahore High Court, Lahore passed in Civil Revision No. 516 of 1984).
Specific Relief Act (I of 1877)-----
----S. 42---Constitution of Pakistan (1973), Art.185(3)---Suit for declaration---Plaintiff challenged validity of decree having been obtained after death of predecessor-in-interest of defendant---Two Advocates while appearing as witnesses stated that, such decree, was passed in presence' of predecessor-in-interest of defendant---Trial Court relying on their evidence concluded that such decree had been validly passed-Appellate Court and High Court maintained such findings ---Validity--Predecessor-in-interest of defendant had not challenged such decree in his life time---Supreme Court dismissed petition and refused leave.
Muhammad Anwar Bhaur, Advocate Supreme Court and S. Abul Aasim Jafri, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 30th May, 2002.
2004 S C M R 1358
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry and Faqir Muhammad Khokhar, JJ
KARAM DIN---Petitioner
Versus
PROVINCE OF PUNJAB through Collector, Mianwali and others---Respondents
Civil Petition No. 935-L of 1999, decided on 15th May, 2002.
(On appeal from the judgment/order, dated 13-4-1999 passed by Lahore High Court. Lahore in Writ Petition No. 6491 of 1999).
Constitution of Pakistan (1973)---
----Art. 185(3)---Supreme Court Rules, 1980, O.XIII, R.1---Petittor, barred by 18 days ---Condonation of delay---Petitioner's plea of being indisposed could not be entertained in absence of medical certificate, thus, delay in filing petition was not condoned---Supreme Court dismissed petition being barred by time.
C.M. Latif Rawn, Senior Advocate Supreme Court and M Aslam Chaudhry, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 15th May, 2002.
2004 S C M R 1359
[Supreme Court of Pakistan]
Present: Tanvir Ahmad Khan and Khalil-ur-Rehman Ramday, JJ
Mst. MAJEEDA and others---Petitioners
Versus
Mst. GHULAM AISHA and others---Respondents
Civil Petition No. 1908-L of 2000, decided on 24th April, 2003.
(On appeal from the judgment of the Lahore High Court, Lahore, Multan Bench, dated 9-3-2000 passed in R.S.A. No. 896 of 1978).
Specific Relief Act (I of 1877)---
----S.42---Constitution of Pakistan (1973), Art. 185(3)---Declaration of title- --Concurrent findings of facts by two Courts below---Property was owned by predecessor-in-interest of the parties and plaintiffs claimed to be the owners to the extent of their share---Defendants denied the right of plaintiffs as legal heirs of their predecessor-in-interest---Suit dismissed by the Trial Court was decreed by Appellate Court and the judgment and decree passed by the Appellate Court was maintained by High Court in second appeal---Validity---Defendants failed to prove their assertion as their own witnesses did not support them m that regard---Defendants did not point out any illegality or legal infirmity in the judgment passed by High Court warranting interference by Supreme Court---Leave to appeal was refused.
Islam Ali Qureshi, Advocate Supreme Court for Petitioners.
Nemo for Respondent.
Date of hearing: 24th April, 2003.
2004 S C M R 1361
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Khalil-ur-Rehman Ramday, JJ
NASEER AHMAD---Petitioner
Versus
THE STATE---Respondent
Criminal Petition for Leave to Appeal No.335 of 2003, decided on 14th April, 2004.
(On appeal from order, dated 16-7-2003, passed by the Lahore High Court Lahore, in Criminal Appeal No.971 of 1999).
(a) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c)---Constitution of Pakistan (1973), Art. 185(3)---Co-accused or officials of the Anti-Narcotics Force had no ill-will, prejudice or malice against the accused to falsely implicate him in the case---Huge quantity of heroin was recovered by the raiding party from the house of accused---Recovered narcotics could not be produced before the Trial Court as the same had been destroyed during the trial under the valid orders of the Magistrate and the accused had not raised any objection against such destruction---Statement of accused recorded by the Judicial Magistrate under S.164, Cr.P.C. was to accordance with the law and the High Court Rules---Police officials were as good witnesses as others and their evidence could not be discarded on this score alone---Main role of purchase, sale and storing the narcotics was attributed to accused showing him to be the ring leader of the smugglers gang---Prosecution version being truthful was rightly believed by the Trial Court and upheld by High Court---Leave was declined to accused by Supreme Court accordingly.
(b) Control of Narcotic Substances Act (XXV of 1997)---
----S. 9(c)---Appreciation of evidence---Principles---Police officials are as good witnesses as other witnesses, and. their evidence on this score alone should not be discarded.
Dr. Khalid Ranjha, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.
Nemo for Respondent.
Date of hearing: 14th April, 2004.
2004 S C M R 1365
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry and Khalil-ur-Rehman Ramday, JJ
KHAIR MUHAMMAD and others---Petitioners
versus
ABDUL GHAFOOR and others---Respondents
Civil Petition No. 1152-L. of ..1999, ,decided on 28th May, 2002.
(On appeal from the judgment/order, dated 26-5-1999 passed by Lahore High Court, Bahawalpur Bench, Bahawalpur in Civil Revision No. 198-D of 1999).
Constitution of Pakistan (1973)---
----Art. 185---Findings of fact based on documentary evidence---Supreme Court would not interfere with such findings.
Rana Abdul Rahim Khan, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 28th May, 2002.
2004 S C M R 1367
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry and Faqir Muhammad Khokhar, JJ
UMAR HAYAT---Petitioner
versus
ADDITIONAL DISTRICT JUDGE and others---Respondents
Civil Petition No. 915-L of 1999, decided on 14th May, 2002.
(On appeal from the judgment, dated 16-4-1999 passed by the Lahore High Court, Lahore in Writ Petition No. 6709 of 1990.
Civil Procedure Code (V of 1908)---
----O.XVI, R.1(2)---Constitution of Pakistan (1973), Art. 185(3)--Summoning of witness after a delay of 3-1/2 years---Trial Court summoned the witness required by plaintiff to be produced and the order was maintained by Appellate Court as well as by High Court in exercise of Constitutional jurisdiction---Validity---Trial Court was competent to grant permission under O.XVI, R.1(2), C.P.C. for summoning any witness at any stage subject to showing good cause---Trial Court, in exercise of its discretionary jurisdiction had granted permission to summon the witnesses for recording evidence and the order was maintained by Appellate Court as well as by High Court---Supreme Court in exercise of jurisdiction under Art. 185(3) of the Constitution, declined to interfere with the orders---Leave to appeal was refused.
Muhammad Saleem Shahnazi, Advocate Supreme Court and Sh. Salah-ud-Din, Advocate-on-Record for Petitioner.
Nemo for Respondent.
Date of hearing: 14th May, 2002.
2004 S C M R 1370
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Mian Muhammad Ajmal, ii
MUHAMMAD TUFAIL and 4 others---Petitioners
versus
AKBAR ALI and 4 others--Respondents
Civil Petition No. 1029-L of 1999, decided on 1st July, 2002.
(On appeal from the judgment of the Lahore High Court, Lahore, dated 29-6-1999 passed in Civil Revision No. 541 of 1998).
(a) Islamic Law---
----Gift---Gift by old illiterate Pardahnashin ladies in favour of nephews (sons of brothers)---Validity---First donor was about 75 years old, when mutation was sanctioned---Mutation was not sanctioned in the village, where property was situated and it was not proved from proceedings of mutation that sons and husband of first donor were present at the time of sanction of mutation-- -First donor had her own sons and daughters---Second donor had a daughter, married to one of the donees---No reason whatsoever was brought on record as to why and under what circumstances, she was compelled to make gift in favour of her nephews---Strong proof to be given in case of disposal of property by an old illiterate Pardahnashin lady, that she had advice of her relatives such as husband and sons ---Donees had failed to prove the same---Gift of share in land of donors was declared to be not valid in circumstances---West Pakistan Land Revenue Act (VI1 of 1967), S.42.
(b) Pardahnashin lady -
----Disposal of property by an old illiterate Pardahnashin lady---Proof--Strong proof should be given that she had advice of her relatives, such as husband and sons.
Malik Muhammad Qayyum, Advocate Supreme Court and Sh. Masood Akhtar, Advocate-on-Record for Petitioners.
M. Zahid Abbasi, Advocate Supreme Court for Respondents.
Date of hearing 1st July, 2002
2004 S C M R 1373
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Faqir Muhammad Khokhar, JJ
NAWAZISH ALI ---Petitioner
Versus
THE STATE---Respondent
Criminal Petition No. 175/L of 2004, decided on 12th May, 2004.
(On appeal from order, dated 27-2-2004 of the Lahore High Court, Lahore, passed in Criminal Miscellaneous No.585/B of 2004).
Criminal Procedure Code (V of 1898)-----
----S. 498---Penal Code (XLV of 1860), S.365---Constitution of Pakistan (1973), Art.185(3)---Pre-arrest bail, refusal of---Accused was, prima facie, involved in commission of an offence falling within the prohibition of S.497(1), Cr.P.C.---Allegation against the accused were serious in nature---Accused had not joined police investigation and he had failed to satisfy necessary conditions for grant of pre-arrest bail---Discretion exercised by the Courts below declining the extraordinary concession of grant of anticipatory bail to the accused did not call for interference by Supreme Court---Leave to appeal was refusal to accused accordingly.
Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court for Petitioner.
Muhammad Zaman Bhatti, Advocate Supreme Court for Respondent.
Date of hearing: 12th May, 2004.
2004 S C M R 1375
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah Khalil-ur-Rehman Ramday and Falak Sher, JJ
MUHAMMAD IRSHAD and others---Petitioners
Versus
AMANAT ALI and another---Respondents
Criminal Petition for Leave to Appeal No.127 of 2004, decided on 27th April, 2004.
(On appeal from judgment/order, dated 9-3-2004, passed by the Lahore High Court, Multan Bench, Multan, in Criminal Miscellaneous No. 164/CB of 2003).
Criminal Procedure Code (V of 1898)---
----S. 498---Penal Code (V of 1860), Ss.420, 468 & 471---Constitution of Pakistan (1973), Art. 185(3)---Pre-arrest bail, grant of---Pre-arrest bail , granted to the accused by Sessions Judge was recalled by High Court---Accused instead of surrendering before police appeared before Supreme Court for pre-arrest bail---During investigation, the police had found the accused guilty of the offence and Challan had been filed in the Trial Court---Validity---Prima facie the allegations against the accused were of serious nature---Criteria for grant of pre- arrest bail to an accused person was quite different to that after arrest---High Court had exercised its discretionary jurisdiction after scanning the record---Order of recalling the bail was neither perverse nor capricious or arbitrary and the same did not call for interference by Supreme Court---Bail was declined to the accused---Leave to appeal was refused.
Muhammad Munir Peracha, Advocate Supreme Court for Petitioners.
Nemo for Respondents.
Date of hearing: 27th April, 2004.
2004 S C M R 1377
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Faqir Muhammad Khokhar, JJ
Malik NAZIR AHMAD through his legal heirs---Petitioners
Versus
MUHAMMAD YAR---Respondent
Civil Petition No.3-L of 2000, decided on 8th July, 2002.
(On appeal from the judgment, dated 13-10-1999 of the Lahore High Court, Multan Bench, Multan passed in R.F.A. No. 54 of 1995).
Punjab Pre-emption Act (IX of 1991)-----
----S.13---Constitution of Pakistan (1973), Art. 185(3)---Right of pre emption, exercise of ---Talb-i-Muwathibat---Proof---Trial Court found that the pre-emptor failed to prove Talb-i-Muwathibat which finding of fact was upheld by High Court in its appellate jurisdiction ---Talb-iMuwathibat had to be made immediately on attaining the knowledge about sale by the intending pre-emptor declaring his intention to preempt the sale---If such demand was not made or not established by cogent evidence, the subsequent demands would become inefficacious--No error or legal infirmity in the judgment passed by High Court was found warranting interference by Supreme Court under Art.185(3) of the Constitution ---Leave to appeal was refused.
Ijaz Feroze, Advocate Supreme Court for Petitioners.
Nemo for Respondent.
Date of hearing: 8th July, 2002.
2004 S C M R 1379
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Faqir Muhammad Khokhar, JJ
MUHAMMAD ANWAR and 7 others---Petitioners
Versus
MEMBER (JUDICIAL) BOARD OF REVENUE, PUNJAB, LAHORE and 5 others---Respondents
Civil Petition No. 49-L of 2000, decided on 10th July, 2002.
(On appeal from the judgment, dated 21-10-1999 of the Lahore High Court, Lahore passed in Writ Petition No. 3793 of 1985).
West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---
----S.10---Constitution of. Pakistan (1973), Art. 185(3)---Consolidation scheme---Setting aside of review order passed by Board of Revenue on limited point for fresh order---Effect---High Court by setting aside such order had virtually set aside the revisional order of Board of Revenue as without setting aside the revisional order, the Board of Revenue could not exercise jurisdiction under any authority---High Court by remanding the case had reopened the revisional jurisdiction of the Board of Revenue, therefore, the Board would decide the revision petition afresh instead of limited point as directed by High Court---Leave to appeal was refused.
Malik Allah Yar Khan, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 10th July, 2002.
2004 S C M R 1382
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Tanvir Ahmad Khan, JJ
Mst. MARYAM MAI ---Petitioner
Versus
JUDGE FAMILY COURT, D.G. KHAN and 4 others---Respondents
Civil Petition No. 3645-L of 2001, decided on 27th June, 2002.
(On appeal from the judgment, dated 7-11-2001 of the Lahore High Court, Multan Bench, Multan passed in Writ Petition No. 751 of 2001).
Guardians and Wards Act (VIII of 1890)----
----S. 25---Constitution of Pakistan (1973), Art. 185(3)---Custody of minor---Welfare of minor---Right of maternal grandmother---Mother of the minor girl died a few days after giving her birth and the minor was brought up by her maternal grandmother---Grandmother was an old lady with weak eyesight and was hard of hearing---Due to careless treatment, arm of the minor was fractured which had not been fully recovered--Although a school and mosque was adjacent to the house of the grandmother yet the minor was neither admitted in the school nor any arrangement was made for her religious studies---Neither the grandmother nor her husband had learnt the Holy Qur'an as against it, the father of the minor and his parents owned sufficient land and could take care of the minor in more appropriate manner than the maternal grandmother being natural guardian--All the three Courts below on proper appreciation of evidence had concurrently found that welfare of the minor was that she should live in guardianship of her real father who could better look after her interest Supreme Court declined to interfere with the Concurrent findings of fact by the. Courts below---Leave to appeal was refused.
Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.
Nemo for Respondent.
Date of hearing: 27th June, 2002.
2004 S C M R 1384
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Faqir Muhammad Khokhar and Falak Sher, JJ
MUHAMMAD NAWAZ alias NAWAZA and others---Petitioners
Versus
MUHAMMAD NAWAZ and others---Respondents
Civil Petition No. 1519/L of 2000, decided on 2nd June, 2003.
(On appeal from the judgment, dated 29-9-1999 of the Lahore High Court, Lahore, passed in Writ Petition No. 4803 of 1986).
Punjab Pre-emption Act (I of 1913)---
----S.21---Martial Law Regulation No. 115, Para. 25---Notification, dated 10-8-1973 of Land Commission---Constitution of Pakistan (1973), Art. 185(3)---Right of pre-emption ---Tenant from lessee ---Entitlement--Petitioners were denied right of pre-emption under Para. 25 of Martial Law Regulation No. 115, being tenants from lessee---Contention of the petitioners was that in para. 25 of Martial Law Regulation No. 115, it had been provided that a tenant qua land comprising his tenancy had superior right of pre-emption and under the Notification, dated 10-8-1973 of Land Commission, such tenant was also found to be entitled to benefit of Para. 25 of Martial Law Regulation No.115--Petitioners further contended that even if lessee had been excluded from the definition of tenant, the petitioners actually tilling the land would still be entitled to right of pre-emption under para. 25 of Martial Law Regulation No. 115 regarding land comprising their tenancy and it was irrelevant as to who was their landlord---Leave to appeal was granted by Supreme Court to consider the contentions of the petitioners.
Saeed-ur-Rehman Farrukh, Advocate Supreme Court and Sh. Naveed Sheharyar, Advocate Supreme Court for Petitioners.
Shahbaz Khurshid, Advocate Supreme Court for Respondents.
Date of hearing: 2nd June, 2003.
2004 S C M R 1387
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah Khalil-ur-Rehman Ramday and Falak Sher, JJ
ZAMAN KHAN alias ZAMA KHAN through Legal Heirs---Petitioners
Versus
Mst. SARDARAN MAI alias SADDAH MAI through Legal Heirs---Respondents
Civil Petition for Leave to Appeal No.956/L of 2004, decided on 27th April, 2004.
(On appeal from order dated 9-2-2004, passed by the Lahore High Court, Lahore, in Civil Revision No. 151 of 2002).
Specific Relief Act (I of 1877)
----S.42---Qanun-e-Shahadat (10 of 1984), Arts.85(4), 117 & 120--Constitution of Pakistan (1973), Art.185(3)---Declaration of title to ownership---Document---Onus to prove---Failure to produce stamp vendor---Effect---Public document not in proper custody---Plaintiffs produced record of Zakat and Ushr Committee in support of their claim---Such record was produced by a person who had no concern with the Committee at the time when his statement was recorded as the witness could not bring the record containing the original document as relied upon by the plaintiffs---Validity---Original record should have been in the custody of the concerned Record Keeper, Secretary or the Chairman of the Committee who were running the business of the Committee at the relevant time---Burden was upon the plaintiffs to prove that the document relied upon by them was actually signed and executed by the deceased but they could not discharge the onus of the issue--Appellate Court as well as High Court had rightly observed that stamp vendor was neither summoned nor produced before Trial Court which was the real evidence available with the plaintiff---Judgment passed by High Court was legal, unexceptional according to the facts and circumstances of the case and did not call for any interference by Supreme Court---Leave to appeal was refused.
Jehangir A. Jhoja, Advocate Supreme Court for Petitioners.
Nemo for Respondents.
Date of hearing : 27th April, 2004.
2004 S C M R 1389
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Faqir Muhammad Khokhar, JJ
MUHAMMAD AMJAD KHAN---Petitioner
Versus
PROVINCE OF PUNJAB and others---Respondents
Civil Petition No. 2106-L of 1999, decided on 10th July, 2002.
(On appeal from the judgment, dated 15-10-1999 passed by the Lahore High Court, Lahore in Civil Revision No. 144-D of 1994).
Transfer of Property Act (IV of 1882)-----
---S.118---Valid agreement of exchange---Non-delivery of possession--Effect---Absence of transfer of possession would not be sufficient to invalidate transaction of exchange---No bar in law to exchange of land, if due to some reasons, delivery of possession does not take place.
Rana Abdul Rahim Khan, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record (absent) for Petitioner.
Walayat Umer Chaudhry, Advocate-on-Record for Respondents.
Date of hearing: 10th July, 2002.
2004 S C M R 1391
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Tanvir Ahmad Khan, JJ
Mst. HUSSAIN BIBI and others---Petitioners
Versus
BARKAT ALI and others---Respondents
Civil. Petition for Leave to Appeal No.997/L of 1999, decided on 2nd July, 2002.
(On appeal from the judgment, dated 4-5-1999 of the Lahore High Court. Lahore passed in Civil Revision No. 1402/D of 1988).
(a) Islamic Law---
----Inheritance---Opening of succession--- Inheritance under Muslim Personal Law takes place automatically and each legal heir is entitled to get his respective share irrespective of any claim or demand therefor.
Ghulam Ali v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 rel.
(b) Constitution of Pakistan (1973)---
----Art.185---Jurisdiction of Supreme Court--Scope---Supreme Court being the Apex Court, is not only possessed of jurisdiction, but also under a duty to dispense justice without being hindered by any technicality, which should not be allowed to thwart the course of justice under the law.
Ch. Muhammad Arshad Ramay, Advocate Supreme Court and C.M. Lateef, Advocate-on-Record for Petitioners.
Taki Ahmed Khan, Advocate Supreme Court and Ch. Mohdi Khan Mehtab, Advocate-on-Record for Respondents.
Date of hearing: 2nd July, 2002.
2004 S C M R 1394
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah Khalil-ur-Rehman Ramday and Falak Sher, JJ
MUHAMMAD DIN through Legal Heirs---Appellants
Versus
NAZIR MUHAMMAD through Legal Heirs---Respondents
Civil Appeal No. 1008 of 2001, decided on 27th April, 2004.
(On appeal from the judgment/order of the Lahore High Court, Lahore, dated 10-4-2001, passed in Civil Revision No. 1331 of 1988).
Punjab Pre-emption Act (I of 1913)-----
----S.21---Qanun-e-Shahadat (10 of 1984), Art. 114---Constitution of Pakistan (1973), Art.185(3)---Right of pre-emption, exercise of--Principle of estoppel and waiver ---Proof---Pre-emption suit was decreed by Trial Court in favour of pre-emptors ---Appellate Court allowed appeal and dismissed the suit for the reason that the pre-emptors were estopped by their words and conduct from filing the suit---High Court in exercise of revisional jurisdiction set aside, the judgment and decree passed by the Appellate Court and the suit was decreed---Plea raised by vendee was that the High Court did not consider the point of waiver--Validity---High Court had rightly observed that in order to support the plea of estoppel or waiver very cogent evidence was to be led reflecting the person's conduct clearly indicative of abandonment of his rights---To deprive a person of any legal right that he possessed there must be clear and cogent evidence on record justifying such order of the Court and mere oral statements of a few witnesses deposing about certain circumstances from which it might be possible to infer that the prospective pre-emptor had knowledge of the sale, would not be enough to prove that the pre-emptor had positively relinquished the enforcement of his right---Judgment passed by High Court did not call for any interference by Supreme Court---Leave to appeal was refused.
Jam Pari v. Muhammad Abdullah 1992 SCMR 786; Baqri and others v. Salehon and other PLD 1972 SC 133; Naseer Ahmad v. Arshad Ahmad PLD 1984 SC 403 and Kidar Nath and others v. Bhag Singh and others AIR 1937 Lah. 504 ref.
Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court, Kh. Muhammad Farooq, Advocate Supreme Court and. M.A. Zaidi, Advocate-on-Record for Appellants.
Agha Tariq Mehmood, Advocate Supreme Court for Respondents.
Date of hearing: 27th April, 2004.
2004 S C M R 1397
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Khalil-ur-Rehman Ramday, JJ
I.G. HQ FRONTIER CORPS and others---Appellants
Versus
GHULAM HUSSAIN and others---Respondents
Civil Appeals Nos. 1541 to 1544 of 2003, decided on 1st June, 2004.
(On appeal against the judgment dated 30th March, 13th April, 15th May and 12th June, 2001 passed by Federal Service Tribunal in Appeals Nos.44(P)CS, 86(P)CS, 120(P)CS and 142(P)CS of 2001).
(a) Constitution of Pakistan (1973)---
----Art. 212(3)---Civil Servants Act (LXXI of 1973), S.2(b)---Service Tribunals Act (LXX of 1973), S.2-A---Removal from Service (Special Powers) Ordinance (XVII of 2000), S.3---Leave to appeal was granted by Supreme Court to consider; whether the employees of Frontier Corps were civil servants within the meaning of S.2(b) of Civil Servants Act,' 1973; whether as civil servants as such or by virtue of deeming proceedings of S.2-A of Service Tribunals Act, 1973, they could file appeal in Federal Service Tribunal to call in question the disciplinary action taken against them; and what w4s the impact of provisions of Removal from Service (Special Powers) Ordinance, 2000, on the employees of Frontier Corps.
(b) Frontier Corps Ordinance (XXVI of 1959)---
----S. 6---Service Tribunals Act (LXX of 1973), S.2-A---Employees of Frontier Corps---Jurisdiction of Service Tribunal, invoking of---Scope--Such employees can invoke the jurisdiction of Service Tribunal for redressal of their grievance.
(c) Frontier Corps Ordinance (XXVI of 1959)---
----Preamble, Ss. 6, 8 & 9---Frontier Corps, formation of---Object and scope---Signing of recruitment roll and affirmation---Effect--- Frontier Corps is responsible for better protection and administration of external frontiers of Pakistan within the limits or adjoining tribal areas in time- of peace to discharge functions in respect of administration, on the call of Deputy Commissioner of the area within which Headquarters of Frontier Corps are located---Employees of Frontier Corps are always subject to the provisions of Frontier Corps Ordinance, 1959, because after signing the recruitment roll and affirmation, the employees are bound to exhibit discipline of high standard which cannot be achieved unless stringent punishments are provided---Otherwise there can be no difference between status of an ordinary civil servant and of civil servant who is member of para-military force---Maintenance of discipline cannot be compromised in any case dealing with the matter pertaining to civil servants discharging their duties in non-military administration because in absence of strict discipline in Governmental organizations the object of good governance cannot be achieved---No amount of relaxation in maintaining discipline in para-military forces is permissible otherwise it becomes difficult to achieve the object for which such forces are created---If an employee of uniform violates discipline, it causes tremendous loss to the credibility of the force as a whole, therefore, stringent punishments are provided through special statute having strict application on its employees etc.---So long as the employees of such forces are governed by such special enactments, there would be no difficulty in achieving the object for which the force was formed.
(d) Frontier Corps Ordinance (XXV1 of 1959)---
----Ss. 6, 8 & 9---Removal from Service (Special Powers) Ordinance (XVII of 2000), Ss. 3 & 11---Employees of Frontier Corps---Disciplinary proceedings---Special law and general law---Applicability---Employees being aggrieved of their removal from service filed appeal before Service Tribunal, which was allowed by the Tribunal on the ground that after promulgation of Removal from Service (Special Powers) Ordinance, 2000, the proceedings should not have been conducted under the provisions of Frontier Corps Ordinance, 1959---Service Tribunal remanded the matter to the authorities with a direction that the proceedings might be initiated afresh under the provisions of Removal from Service (Special Powers) Ordinance, 1959---Validity---After promulgation of Removal from Service (Special Powers) Ordinance, 2000, which essentially was a general law in its nature and it had impliedly repealed earlier Efficiency and Disciplinary Rules by dint of its S.11 but as far as the provisions relating to maintenance of discipline as contained in Frontier Corps Ordinance, 1959, were concerned they could not be repealed as it was a special law and was applicable to a particular class of civil servants/employees---Repealing S.11 of Removal from Service (Special Powers) Ordinance, 2000, would not affect its provision as the same was non obstante clause as per S.8(2) of Frontier Corps Ordinance, 1959---In view of principle for avoiding collision between different statutes, the general law in its nature i.e. Removal from Service (Special Powers) Ordinance, 2000, would give way to special law i.e. Frontier Corps Ordinance, 1959, being earlier in time and special in nature having its peculiar provisions to deal with particular subject, therefore, a general/later law could not impliedly repeal it---Even otherwise without specific repeal of Frontier Corps Ordinance, 1959, the Removal from Service (Special Powers) Ordinance, 2000, could not be applied in view of the special features of the former---Both the statutes could not co-exist while dealing with the provisions relating to enforcement of discipline in the force---Members of Frontier Corps were governed under the provisions of Frontier Corps Ordinance, 1959, and for limited purposes, status of civil servants was given to them so that they might have remedy before Service Tribunal for the redressal of their grievance in accordance with law---Judgment passed by Service Tribunal was set aside and the case was remanded for decision afresh in view of the provisions of Frontier Corps Ordinance, 1959---Appeal was allowed.
The State v. Syed Mir Ahmed Shah and another PLD 1970 Quetta 49 rel.
Mrs. Nahida Mehboob Elahi Standing Counsel and Ch. Muhammad Akram, Advocate-on-Record for Appellants (in all cases).
Sheikh Riaz-ul-Haq, Advocate Supreme Court and M.A. Zaidi; Advocate-on-Record for Respondents (in C.As. Nos. 1541-1543 of 2003).
Muhammad Munir Piracha, Advocate Supreme Court (in C.A. -No. 1544 of 2003).
Date of hearing: 1st June, 2004.
2004 S C M R 1411
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Falak Sher, JJ
TAJ DIN alias TAJ MUHAMMAD ---Petitioner
Versus
PROVINCE OF THE PUNJAB through Collector, Rahimyar Khan---Respondent
Civil Petition for Leave to Appeal No.2298/L of 2001 and Civil Misc. Application No.215/L of 2004.
(On appeal from order, dated 7-5-2001, passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur, in C.R. No.291-D of 2001).
Colonization of Government Lands (Punjab) Act (V of 1912)-----
----S.24---Constitution of Pakistan (1973 (1973), Art.185(3) --- Lease of Government land, cancellation of---Concurrent findings of facts by the Courts below---Grievance of petitioner was that his lease was cancelled by the authorities---Plea raised by the authorities was that the lease was for five years and the same was not renewed---Suit filed by the petitioner was dismissed by the Trial Court and the judgment and decree was maintained by Appellate Court as well as by High Court ---Validity--Revenue authorities heard the petitioner and after going through the record rightly cancelled lease of the petitioner---High Court had considered the case in its proper perspective and after going through the material on record had rightly dismissed the revision petition of the petitioner with sound and cogent reasons---Order passed by High Court was based on proper appreciation of facts and law and no misreading or non-reading of the material or any contravention of S.24 of Colonization of Government Lands (Punjab) Act, 1912 was found therein---Leave to appeal was refused.
Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record (absent) for Petitioner.
Nemo for Respondent.
Date of hearing: 4th June, 2004.
2004 S C M R 1413
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ
MUHAMMAD ZAHOOR NASIR and others---Petitioners
Versus
ADDITIONAL DEPUTY COMMISSIONER, KASUR and others---Respondents
Civil Petitions Nos.61, 62, 499-L, 500-L, 593-L, 1951-L of 2002 and Criminal Original No.44 of 2002 in C.P. No.62 of 2002.
(On appeal from the judgment, dated 27-I1-2001 of the Lahore High Court, Lahore, passed in W.Ps. Nos.832/R, 78, 104/R, 75/R of 1979, 110/R of 1978, 353/R and 150/R of 1986 respectively).
Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)-----
----Ss. 2, 3 & 4---Transfer of Property Act (IV of 1882), S.52--Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider; whether the judgment passed by High Court was in accordance with law laid down by Supreme Court in its various judgments; whether the provisions as contained in Ss.2, 3 and 4 of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, had been misconstrued and misinterpreted qua the determination of jurisdiction of forum concerned in the hierarchy of settlement laws in view of verification of claim and compensation of necessary formalities in the Province of Sindh whereas the property in question was located in the Province of Punjab; whether the principles as embodied in S.52 of Transfer of Property Act, 1882, would have some bearing on the fate of the case; whether the remand order passed by High Court in earlier Constitutional petition had been complied with substantially by Officer authorized under S.2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, Additional Settlement Commissioner (Ind. Rural) Central Settlement Cell Board of Revenue Sindh (Hyderabad); whether the judgment passed by High Court in earlier Constitutional petition could be considered as judgment in rem or in personam; whether the Additional Settlement Commissioner (Ind. Rural) Central Settlement Cell, Board of Revenue Sindh (Hyderabad) had no jurisdiction qua the subject-matter while passing order dated 29-5-1976 in view of notification dated 8-5-1976 issued under S.2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, by Governor of Punjab whereby Member Board of Revenue Punjab was Settlement Commissioner, Rehabilitation Commissioner and Claim Commissioner for Province of Punjab for disposal of pending proceedings under the Evacuee Property and Displaced Persons Laws (Repeal) Act. 1975; and whether the petitioner being vendee had any locus, standi to challenge the cancellation of entitlement certificate of another person.
Nawab Syed Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236; Majidullah Khan v. N.-W.F.P. 1980 SCMR 728; Barkat Ali v. Bashir Ahmad 1980 SCMR 731; Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC .(Pak.) 104; Faqir Muhammad Punjabi v. Federation of Pakistan PLD 1958 SC (Pak.) 118; Muhammad Tufail v. Abdul Ghafoor PLD 1958 SC (Pak.) 201; Atta Muhammad Qureshi v. Settlement Commissioner PLD 1971 SC 61 and Muhammad Ramzan v. Member (Rev.) CSS 1997 SCMR 1635 ref.
Mian Fazal Mahmood, Senior Advocate Supreme Court, Malik Noor Muhammad Awan, Advocate Supreme Court, Muhammad Zahoor Nasir, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioners (in all cases).
A. Karim Malik, Senior Advocate Supreme Court for Respondents (in C.P. 61 of 2002).
Tahir Munir Malik, Advocate Supreme Court. for Respondents Nos.6 and 12 to 19.
Ihsanul Haq Chaudhry, Advocate Supreme Court for Respondent (in C.P. 593/L of 2002).
Date of bearing: 6th April, 2004.
2004 S C M R 1416
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Falak Sher, JJ
MUHAMMAD BAKHSH and others---Petitioners
Versus
Mst. ZOHRAN SARWAR and others---Respondents
Civil Petition for Leave to Appeal No.6 of 2004, decided on 4th June, 2004.
(On appeal from judgment, dated 6-11-2003, passed by the Lahore High Court, Multan Bench, Multan, in R.S.A. No. 198 of 1984).
Specific Relief Act (I of 1877)---
----Ss. 12 & 42---Constitution of Pakistan (1973), Art.185(3)--Declaration of title---Concurrent findings of facts by the Courts below--Plaintiff claimed to be the owner in possession of suit land and in alternative claimed specific performance of agreement to sell---Trial Court decreed the suit in favour of plaintiff and judgment and decree passed by Trial Court was maintained by Appellate Court as well as by High Court---Validity---Concurrent findings of facts were available on record by three Courts below---All such Courts had considered the entire material evidence and there was no misreading or non-reading of the material or misconstruction of law---Judgment passed by High Court was based on proper appreciation of facts and law and was not open to any exception---Leave to appeal was refused.
Khan Baig Janjua, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 4th June, 2004.
2004 S C M R 1419
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Rona Bhagwandas and Khalil-ur-Rehman Ramday, JJ
Dr. MUHAMMAD ARSLAN---Appellant
Versus
CHANCELLOR, QUAID-E-AZAM UNIVERSITY, ISLAMABAD and others---Respondents
Civil Appeal No.901 of 1999, decided on 27th May, 2004.
(On appeal from the judgment/order, dated 16-12-1998 passed by Federal Service Tribunal, Islamabad, in Appeal No.381(R) of 1998).
(a) Service Tribunals Act (LXX of 1973)---
----Ss. 2-A & 4---Limitation Act (X of 1908), Ss.5 & 14---Constitution of Pakistan (1973), Art.212(3)---Appeal before Service Tribunal---Delay, condonation of---Contention of the petitioner was that after retrospective operation of S.2-A of Service Tribunals Act, 1973, question of limitation should have been decided by Service Tribunal in the light of special circumstances since provisions of S.4 of Service Tribunals Act, 1973 provided departmental appeal, only to civil servant and not to a person having fixed term employment to invoke the jurisdiction of Service Tribunal by virtue of S.2-A of Service Tribunals Act, 1973---Petitioner also contended that he was not seeking reinstatement in service but only arrears for the un-expired period of his statutory term by four years--Leave to appeal was granted by Supreme Court to consider the questions raised by the petitioner.
Lt.-Col. (Retd.) Muhammad Siddique v. Allama Iqbal Open University, Islamabad Civil Petitions Nos.483 and 658 of 1998 ref.
(b) Service Tribunals Act (LXX of 1973)-----
----Ss. 2-A & 4---Appeal before Service Tribunal---Maintainability-- Limitation---Change in forum of appeal---Effect---On account of change in forum, the question of limitation should not be considered seriously because insertion of S.2-A in Service Tribunals Act, 1973, created confusion about its applicability, therefore, it would be deemed that the aggrieved employee had been diligently pursuing his remedy before the wrong forum---If appeal was barred by time, the period of (imitation would be extended in the interest of justice---Proceedings were instituted by the appellant before Service Tribunal in time and the appellant should not have been non-suited for such reason---Appeal before Service Tribunal was not barred by limitation.
M.D. Sui Southern Gas Co. Ltd. v. Ghulam Abbas and others PLD 2003 SC 724; Muhammad Afzal v. Karachi Electric Supply Corporation 1999 SCMR 92; Aftab Ahmed v. K.E.S.C. 1999 SCMR 197 and Rehmatullah v. Postmaster-General 2003 SCMR 705 fol.
(c) Quaid-e-Azam University Act (XXVIII of 1973)-----
----S. 12---Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Fixed term employment---Termination of service before the expiry of term fixed--Appellant was appointed as Vice-Chancellor of Quaid-e-Azam University for a period of four years but his services were terminated prior to the completion of the term of employment---Appellant in Constitutional petition, sought recovery of the salaries of the remaining ---During the pendency of Constitutional petition, S.2-A was inserted in Service Tribunals Act, 1973, Ad the petition abated period Appellant invoked jurisdiction of Service Tribunal but the relief claimed by him was declined firstly for the reason that the appeal filed by him was barred by time and secondly because remedy of departmental appeal' was not availed b y the appellant ---Validity---When a person had been appointed by a competent authority with a condition to retain the post for a specific period, such period became statutory period in terms of S.12 of Quaid-e-Azam University Act, 1973---Chancellor himself had granted the tenure of four years to appellant to retain the post as Vice Chancellor, therefore, before dispensing with his service, the Chancellor had to exercise such powers judiciously and could not have terminated the services of the appellant merely for the reason that another person had to be accommodated at his place---Such appointments were to be made in the interest, and welfare of the institution, therefore, whenever a change was to be made, the competent authority was required to record certain reasons while dispensing with the service of earlier officer and appointing a new one at his place---Authorities were required to exercise the powers fairly, justly and transparently because statutory functionary was not supposed to act arbitrarily and against the canons of natural justice---Judgment passed by Service Tribunal was set aside and remaining period of service of the appellant after termination order was credited to complete the tenure of four years---Supreme Court directed the authorities to pay the arrears of pay of remaining period to the appellant was allowed.
Gul Zarin Kiani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.
Muhammad Munir Piracha Advocate Supreme Court and Manzoor Sheikh, Registrar, Quaid-e-Azam University for Respondents Nos.1 and 3.
Nemo for Respondent No.2.
Date of hearing: 27th May, 2004.
2004 S C M R 1426
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Humeed Dogar, JJ
STATE BANK OF PAKISTAN---Petitioner
Versus
KHYBER ZAMAN and others---Respondents
Civil Petitions Nos.505 to 556 of 2003, decided on 10th June, 2004.
(On appeal from the judgment of the Federal Service Tribunal, Islamabad, dated 24-1-2003 passed in Appeals Nos.295 to 335, 339 to 341, 477(R)/C of 2002, 4, 10 to 15(P)/CE of 2002).
(a) State Bank of Pakistan Circular No.9, dated, 30-10-1997-----
----Golden Handshake Scheme---Payment of Benevolent Fund Grant--Principles---Golden Handshake Scheme was totally voluntary in nature and it was optional for the employees of State Bank of Pakistan to accept the same or not---Option under Golden Handshake Scheme once exercised was irrevocable and there was no element of inducement or compulsion in the Scheme No other payment was to be made after final payment and Benevolent-Fund Grant equivalent to ten years payment whereof was to be made in lump sum---Portion of Golden Handshake Scheme could not be stretched to include payment of Benevolent Fund Grant on monthly basis for ten years or till the age of seventy years--Supreme Court could not make any deletion, amendment, addition or insertion in Golden Handshake Scheme when the same was free from any ambiguity and did not call for scholarly interpretation---In fact lump sum Benevolent. Fund Grant was in lieu of monthly Benevolent Fund Grant for fifteen years which was to be paid under the normal / existing rules.
(b) State Bank of Pakistan Circular No.20, dated, 7-11-2000---
----Scope---Benevolent Fund Grant---Revised rates ---Applicability--Employees of State Bank of Pakistan who had volunteered for Golden Handshake Scheme were not benefited from State Bank of Pakistan Circular No.20, dated 7-11-2000, because the Circular could not be given retrospective effect and it could be invoked by only those employees who were entitled to get such Benevolent Fund Grant on 1-9-2000, when the employees accepting the Golden Handshake Scheme stood retired w.e.f. 15-12-1997---Employees who were not in the service of State Bank of Pakistan on the date of issuance of Circular No.20, provisions of the same could not be applied to such employees retrospectively---Employees who had obtained Benevolent Fund Grant equivalent to ten years in lump sum had no concern with the Circular No.20.
(c) State Bank of Pakistan Employees Benevolent Fund Regulation---
---- Regln. No.8(v)(c)---Grant of Benevolent Fund--Employees accepting Golden Handshake Scheme---Effect---Employees who opted for Golden Handshake Scheme were to be governed by the terms and conditions enumerated in the Scheme and the provisions of Regln. No.8(v)(c) of State Bank of Pakistan Employees Benevolent Fund Regulation, were applicable in normal course---For all those employees who had opted for Golden Handshake Scheme, the existing rules concerning Benevolent Fund had been substituted with lump sum grant equivalent to ten years of Benevolent Fund Grant---Both the advantages stipulated in. Regln. No.8(v)(c) of State Bank of Pakistan Employees Benevolent Fund Regulation and Golden Handshake Scheme simultaneously could not be claimed---Once the option was exercised by an employee of State Bank of Pakistan in favour of Golden Handshake Scheme, he would have no concern whatsoever with the subsequent changes and amendments to the policy rules qua Benevolent Fund Grant specially after retirement of the employees under Golden Handshake Scheme.
(d) State Bank of Pakistan Circular No.9, dated, 30-10-1997----
----Golden Handshake Scheme---Expression "in addition to normal retirement benefits"---Applicability---Expression cannot be interpreted in the manner to include double benefit, one under the existing rules which provided fifteen years Benevolent Fund Grant on monthly basis plus Benevolent Fund Grant equivalent to ten years in lump sum as embodied in Golden Handshake Scheme.
(e) Interpretation of document-----
----Intention of parties, ascertaining of---Principles---In order to resolve ambiguity and to ascertain the real intention of parties, resort has to be made to the corresponding preceding and / or subsequent to the execution of the contract document, conduct of the parties and attending circumstances.
Sandoz Limited v. Federation of Pakistan 1995 SCMR 1431; Muhammad Akram v. Muhammad Salim PLD 1964 (W.P.) Lah. 490; Pakistan Tobacco Co. Ltd. v. Pak. Cigarette Labour Union PLD 1977 Kar. 586 and Mehendra Nath Mandal v. Samsuddin AIR 1921 Cal. 146 ref.
(f) State Bank of Pakistan Employees Benevolent Fund Regulations-----
---- Regin. No.8(v)(c)---State Bank of Pakistan Circular No.9, dated, 30-10-1997---State Bank of Pakistan Circular No.20 of 7-11-2000--Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Constitution of Pakistan (1973), Art.212(3)---Benevolent Fund Grant on monthly basis, entitlement to---Retirement under Golden Handshake Scheme---Seeking of benefit of State Bank of Pakistan Circular No.20, dated, 7-I1-2000--Employees had retired under Golden Handshake Scheme and had received all their dues under the Scheme---Four years after the retirement of the employees, State Bank of Pakistan introduced Benevolent Fund Grant under Circular No.20 dated 7-11-2000--Employees claimed to be entitled to such Grant---Service Tribunal allowed the appeal and held the employees entitled to the Benevolent Fund Grant under Circular No.20 dated 7-11-2000---Validity--Employees stood retired on. 19-10-1997 and first demand regarding Benevolent Fund Grant on monthly basis for 15 years was made after about four years i.e. 19.10.2001 meaning thereby that the policy as enshrined in Golden Handshake Scheme was never challenged at proper moment and no departmental representation challenging the Golden Handshake Scheme regarding Benevolent Fund Grant was made within 30 days---Employees could not be allowed to approbate and reprobate after the acceptance of Golden Handshake Scheme in toto without any objection and after about 48 months the appeal of employees was barred by time---Piecemeal relief with gap of four years could not be granted which otherwise was devoid of merits---Double benefit as claimed by the employees had neither any rationale nor logic but was half-hearted attempt made after four years---Such aspect of the matter had not been properly adverted to and discussed by the Service Tribunal as the appeal being barred by time should have been dismissed.--Supreme Court converted petition for leave to appeal into appeal and judgment passed by Service Tribunal was set aside-Appeal was allowed.
(g) Service Tribunals Act (LXX of 1973)---
----S. 4---Appeal---Limitation---Principle---When appeal before departmental authority is time-barred, the appeal before Service Tribunal is incompetent.
Anwarul Haq v. Federation of Pakistan 1995 SCMR 1505 and Chairman, PIAC v. Nasim Malik PLD 1990 SC 951 ref.
Khalid Anwar, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Petitioner (in all Petitions).
Abdul Hafeez Pirzada, Senior Advocate Supreme Court and M. S. Khattak, Advocate-on-Record for Respondents (in C. Ps. Nos.505507, 509-544, 546-556 of 2003).
Muhammad Akram Sheikh, Senior Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondent (in C.P. No.508 of 2003).
Respondent in Person (in C.P. 545 of 2003).
Date of hearing: 26th February, 2004.
2004 S C M R 1437
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Falak Sher, JJ
MUHAMMAD RIAZ and others---Petitioners
Versus
PROVINCE OF THE PUNJAB through Secretary, Education Department, Punjab, Lahore and others---Respondents
Civil Petitions for Leave to Appeals Nos.699 and 1352/L of 2003, decided on 10th June, 2004.
(On appeal from judgment, dated 25-2-2003, passed by the Punjab Service Tribunal, Lahore in Appeal No.2740 of 2002).
Punjab Service Tribunals Act (IX of 1974)-----
-----S. 4--Constitution of Pakistan (1973), Art. 212(3)---Reduction in lower stage in time scale----Fixing of period--Service Tribunal had rightly modified the appeal of civil servant and fixed the period of reduction in lower stage in time scale---Judgment passed, by Service Tribunal did not suffer from misreading or non-reading of the material available on record---No question of general public importance as contemplated under Art.212(3) of the Constitution was involved---Leave to appeal was refused.
S.M. Abdul Wahab, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Petitioner. (in C.P. No.699 of 2003).
Ch. Aamir Rehman, Addl. A.-G, Punjab for Petitioners (in C.P. 1352/L of 2003).
Date of hearing: 10th June, 2004.
2004 S C M R 1439
[Supreme Court of Pakistan]
Present: Hamid Ali Mirza and Sardar Muhammad Raza Khan, JJ
WAPDA---Petitioner
Versus
FIDA HUSSAIN ---Respondent
Civil Petition No.917 of 2003, decided on 1st June, 2004.
(On appeal from the judgment, dated 6-3-2003 of the Federal Service Tribunal passed in Appeal No. 1355(R) of 1999).
Pakistan Water and Power Development Authority Act (XXXI of 1958)----
----S. 17(1-A)(a)---Service Tribunals Act (LXX of 1973), Ss.2-A & 4--- Constitution of Pakistan (1973), Art.212(3)---Compulsory retirement from service---Non issuance 'of show cause notice---Principle of audi alterm partem---Applicability---Failure to file departmental appeal--Effect- employee, was compulsorily retired from service without issuance of any show cause notice and providing any opportunity of hearing by the authorities---Service Tribunal allowed the appeal and order of compulsory retirement was set aside---Plea raised by the Authority was that the employee had not filed any departmental appeal, therefore, his appeal before the Service Tribunal was not competent--Contention of the employee was that the reply of the Authority filed in High Court during pendency of his Constitutional petition on the same subject was the decision of the Authority---Validity---Employee bad an inalienable right of hearing and he could not be condemned unheard on the principle of natural justice audi alterm partem without assigning any reason for his retirement from service---Authority had taken action under S.17(1-A)(a) of Pakistan Water and Power Development Authority Act, 1958, whereunder no provision for filing appeal, review or representation had been provided and action of retirement was not initiated or taken under Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978, therefore, filing of appeal was no bar against filing appeal before Service Tribunal ---Constitutional petition filed by employee before High Court could be treated to be a departmental appeal against the order of compulsory retirement---Objections/comments of Water and Power Development Authority filed in the Constitutional petition could legitimately be deemed to be an order of competent authority on the appeal of dismissal, therefore, there was no legal impediment in filing appeal before Service Tribunal on account of non-availing of departmental remedy---Supreme Court declined to interfere with the judgment passed by Service Tribunal---Leave to appeal was refused.
Pakistan and others v. Public-at-large and others PLD 1987 SC 304; Muhammad Mushtaq Akbar Civil Appeal No.947 of 1999; WAPDA and others v. Shahen Yasrab and others Civil Petition No.1118/L of 2003 and Syed Aftab Ahmad and others v. K.E.S.C. and others 1999 SCMR 197 rel.
Muhammad Sharif, Advocate Supreme Court for Petitioner.
Respondent No. 1 (in person).
Date of hearing: 1st June, 2004.
2004 S C M R 1443
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Khalil-ur-Rehman Ramday and Falak Sher, JJ
Messrs CENTRAL COTTON MILLS LTD. ---Appellant
Versus
HABIB BANK LIMITED---Respondent
Civil Appeals Nos. 1694 and 1793 of 1996, decided on 11th may, 2004.
(On appeal against the order, dated 28-10-1996 passed by High Court of Sindh, Karachi, passed in J.M. No.38 of 1992).
Companies Ordinance (LXVII of 1984)-----
----Ss. 305 & 306---Winding up of company---Bank defaulter---Failure to clear the debts---Right of bank to initiate winding up proceedings against defaulter company---Providing additional securities to bank---Company failed to demonstrate that it was in a functional condition and was making profits---Company further failed to prove that it was capable to discharge its liabilities to point out the debts owed to the bank as per record of the Company nor the company had come out with the statement showing how much amount could be deposited by it to discharge the liabilities of the bank---Company in written statement made no specific denial regarding liabilities towards the bank---Civil suits were pending between the parties against each other particularly one filed by bank for recovery of amount of loan---Company Judge concluded that the .Company was not commercially viable unit and continued proceedings of winding up---Plea raised by the company was that the bank had instituted winding up proceedings for the recovery of its outstanding amounts and such proceedings could not be substituted for the recovery of amount and that the Company had assets more than the alleged outstanding dues--Validity---Demand of bank requiring the Company to pay the amount which was due, was neither fulfilled, nor the security was enhanced within the period of 30 days, therefore, on completion of period of 30 days, notwithstanding any development which had taken place later on, including the furnishing of security, would render the proceedings of winding up which had been initiated after furnishing of security, because it was construing strictly to the provision of S.306(1)(a) of Companies Ordinance, 1984---Cause of action had accrued to bank for initiating proceedings of winding up---Company might be having assets more than the liabilities which it owed to the bank but fact remained that it was not in a running condition nor it was commercially viable because it could not show profit for the purpose of discharging its debts / loans obtained by it from bank---Company Judge had rightly wound up the Company--Appeal was dismissed.
Kamadenu Enterprises v: Vivek Textile Mills Pvt. Ltd. (1984) 55 Company Cases 68; Ambala Bus Syndicate P. Ltd. v. Bala Financiers P. Ltd. (1986) 69 Company Cases 838; Re. Dogulas (Griggs) Engineering Ltd. (All England Law Reports Vol. I, 498; Sindh Glass Industries Ltd.. v. National Development Finance Corporation PLD 1996 SC 601; Platinum Insurance Co. Ltd. v. Daewoo Corporation PLD 1999 SC 1: Punjab National Silk Mills Ltd. v. National Bank of Pakistan and another 1986 SCMR 1126; Brush Rehman Ltd. v. Brush Electrical engineering Co. Ltd. 1986 SCMR 1612 and Ali Woolen Mills Ltd. v. I.D.B.P. PLD 1990 SC 763 ref.
Muhammad Ali Syed, Advocate Supreme Court for Appellant (in CA No. 1694 of 1996 and Respondent in 1793 of 1996).
Abu Bakar Chandraikar, Advocate Supreme Court and M. Bilal, Senior Advocate Supreme Court for Respondent (in C.A. No.1793 of 1976 and for Appellant in C.A. 1694 of 1996).
Date of hearing :11th May, 2004.
2004 S C M R 1451
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Falak Sher, JJ
Dr. AZAM SARFRAZ---Petitioner
Versus
GOVERNMENT OF PAKISTAN through Secretary, Establishment Division, Islamabad and 4 others---Respondents
Civil Petition for Leave to Appeal No.343 of 2004, decided on 10th June, 2004.
(On appeal from judgment, dated 8-12-2003, passed by the Punjab Service Tribunal, Lahore, in Appeal No. 1890 of 2002).
Service Tribunals Act (LXX of 1973)---
----S. 4---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Remedy--- Question of jurisdiction---Conversion of Federal Department into Provincial Department---Service Tribunal, jurisdiction of---Civil servant, an employee of Population Welfare Programme which was initially a Federal Department was dismissed from service---Department later on, vide Transfer of Population Welfare Programme (Field Activities) (Amendment) Ordinance, 2001, was converted into a Provincial Department---Federal Service Tribunal declined to entertain the appeal of the civil servant for lack of jurisdiction and similar position was taken by Punjab Service Tribunal---Contention of the civil servant was that rejection of appeal by Federal as well as Provincial Service Tribunals declining to exercise the power vested in them had resulted into miscarriage of justice---Civil servant further contended that both the Service Tribunals had knocked him out without adjudicating on merits and the conflicting decisions of the Tribunals required just, fair and equitable decision in accordance with law laid down by Supreme Court---Validity---Leave to appeal was granted by Supreme Court to consider the points raised by the civil servant and also to see whether the findings of both the Service Tribunals on point of jurisdiction were tenable.
Muhammad Bilal, Senior Advocate Supreme Court with Mehr Khan Malik, Advocate-on- Record for Petitioner.
Nemo for Respondents.
Date of hearing: 10th June, 2004.
2004 S C M R 1453
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J., Jayed Iqbal and Abdul Hameed Dogar, JJ
M.H. MUSSADAQ---Petitioner
Versus
MUHAMMAD ZAFAR IQBAL and another---Respondents
Civil Petition No. 1186/L of 2004, decided on 1st June, 2004.
(On appeal from the judgment dated 20-1-2004 of the Lahore. High Court, Lahore passed in F.A.O. No.8 of 2003).
Cantonments Rent Restriction Act (XI of 1963)----
---S. 17(9)---Constitution of Pakistan (1973), Art.185, (3)---"Default"---Striking off defence---Tentative rent order, non-compliance of---Default of few days in deposit of tentative rent---Rent Controller passed tentative rent order and directed the tenant to deposit the same within specified period---Tenant deposited the rent with a delay of three days in first month and with a delay of ten days in subsequent month---Rent Controller struck off the defence of the tenant and passed eviction order---Validity---If the tenant failed to deposit the amount of rent before specified date, or, as the case may be, before 5th of each month, then under S.17 (9) of Cantonments Rent Restriction Act, 1963, his defence would be struck off---Even one day's delay in making the deposit would be default within the meaning of S.17(9) of Cantonments Rent Restriction Act, 1963, as the same was mandatory in nature and Rent Controller' had no power to extend time and condone the delay-- Tentative rent order could be passed by the Rent Controller even if ground of default was not alleged for seeking eviction---Non-compliance with the tentative rent order was directly punishable and in consequence the defence of tenant could be struck off and eviction could be ordered Supreme Court maintained the eviction order passed by the Rent Controller---Leave to appeal was refused.
Misbahullah Khan v. Mst. Memoona Taskinuddin 1995 SCMR 287 and Province of Punjab and others v. Muhammad Jalil-ur-Rehman 1986 SCMR 1705 rel.
Akhtar Masood Khan, Advocate Supreme Court for Petitioner.
Nemo for Respondents.
Date of hearing: 1st June, 2004.
2004 S C M R 1456
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Khalil-ur-Rehman Ramday and Falak Sher, JJ
MUNIR AHMAD and another---Petitioners
Versus
DISTRICT RETURNING OFFICER/APPELLATE AUTHORITY, SARGODHA and others---Respondents
Civil Appeal No.3128/L, of 2000, decided on 13th May, 2004.
(On appeal from the judgment/order, dated 19-12-2000 passed by Lahore High Court, Lahore in W.P. No.24915 of 2000).
(a) Punjab Local Government Elections Ordinance (V of 2000)---
----S. 14(k) & (1)---Criminal Procedure Code (V of 1898), S.345---Qanun-e-Shahadat (10 of 1984), Art.66---Constitution of Pakistan (1973), Art. 185(3)---Character of candidate---Determination---Criminal case---Compounding of offence---Presumption---Candidate was involved in criminal cases registered against him by Forest Department--Application for compounding of offences was filed by the candidate but neither any permission was granted to compound the offence nor the candidate had been put to trial except in one of the cases under S.14 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, but in that case as well the candidate was acquitted under S.249-A, Cr.P.C. by the Trial Court---Returning Officer, thought that the candidate did not have good character, therefore, his nomination papers were rejected---Order passed by the. Returning Officer was maintained by the District Returning Officer---High Court also declined relief to the candidate on the ground that he had prayed for compounding of offence, therefore, it was an admission on his part for the commission of offence being committed by him--- Validity---High Court traveled beyond the scope of law i.e. S.14(k)(1) of Punjab Local Government Elections Ordinance, 2000,. for disqualifying the candidate to contest the election--Determination regarding corrupt character of a person was to be proved as a fact on the basis of cogent evidence independently and character of a person could not be determined on the basis of inferential evidence, presuming that after the cancellation of FIR and reimbursement of loss allegedly caused by the candidate, for which no cogent evidence was available on record, if the candidate had made a request for compounding the offence, then under S. 14(k) of Punjab Local Government Elections Ordinance, 2000, it would not tantamount to admitting a crime by an individual---For proving character of a person in terms of Art.66 of Qanun-e-Shahadat, 1984, strong convincing and admissible evidence had to be brought on record, being a pure question of fact, relevant for decision of the case---High Court was not justified in disqualifying the candidate to contest the election being a man of not good character, in terms of S. 14(k) of the Ordinance, or being a parson who had been convicted as per the requirement of S.,14(1) of Punjab Local Government Elections Ordinance, 2000---Supreme Court converted tae petition for leave to appeal into appeal and the order passed by High Court was set aside---Appeal was allowed.
Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain PLJ 1986 SC 530 rel.
(b) Punjab Local Government Elections Ordinance (V of 2000)------
----S. 14 (k) & (1)---Qanun-e-Shahadat (10 of -1984), Art.66---Evidence Act (I of 1872), S.45---Character of candidate ---Determination--Principles---While determining character of a person, in view of S.45 of the Evidence Act, 1872 [Qanun-e-Shahadat (10 of 1984), Art.66], opinion of individuals about character, conduct and disposition would not be admissible in evidence but specific instances only from which an interference with regard to fact in issue could be drawn, were admissible---No specific evidence had been produced by objectors to establish that the candidate was not man of good character--Candidate could not be held to be a man of bad character in circumstances. [p. 146119
Ehsan-ul-Haq Chaudhry, Advocate Supreme Court and Ch Talib Hussain, Advocate-on-Record (absent) for Petitioner.
Nemo for Respondents Nos.1 and 2.
Ch. M. Ashraf Wahlah, Senior Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record (absent) for Respondent No.3.
Date of hearing: 13th May, 2004.
2004 S C M R 1462
[Supreme Court of Pakistan]
Present Mian Muhammad Ajmal, Sardar Muhammad Raza Khan and Karamat Nazir Bhandari, JJ
Dr. MUNAWAR HUSSAIN ---Petitioner
Versus
Dr. MUHAMMAD KHAN, DISTRICT HEALTH OFFICER, SARGODHA and 2 others---Respondents
Criminal Appeal No. 77 of 1996, decided on 3rd November, 2003.
(On appeal from the judgment of the Lahore High Court; Lahore, dated 5-10-1995 passed in Criminal Miscellaneous No. 341-Q of 1995).
(a) Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979)---
----S. 7/11---Constitution of Pakistan (1973), Arts. 185(3), 203-G & 199---Leave to appeal was granted to complainant for correct interpretation of Art. 203-G and Art,. 199 of the Constitution and to determine whether the proceedings falling within the exclusive jurisdiction of the Federal Shariat Court could be quashed by the High Curt in exercise of its Constitutional jurisdiction under Art. 199 of the Constitution.
(b) Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979)-----
----S. 7/11---Constitution of Pakistan (1973), Arts. 203-DD, 203-A, 203-G, 203-GG & 199---Criminal Procedure Code (V of 1898), 5.561-A---Conversion of application under S.561-A, Cr.P.C. for quashment into a Constitutional petition under Art.199 of the Constitution---Validity---High Court had no jurisdiction under Art.203-DD of the Constitution to convert an application for quashment under S.561-A, Cr.P.C. into a Constitutional petition under Art. 199 of the Constitution---Provisions of Arts. 203-A to 203-J of the Constitution had overriding effect on its other provisions---Article 203-G of the Constitution had, imposed bar on the jurisdiction of the Courts and Tribunals including the Supreme Court and the High Court to entertain any proceedings or exercise any power or jurisdiction in respect of the matters within the power or jurisdiction of the Federal Shariat Court--High Court, therefore, neither had the jurisdiction under. S.561-A, Cr.P.C. nor under Art.199 of the Constitution in the matter which fell within the jurisdiction of the Federal Shariat Court---Jurisdiction exercised by the High Court under Art. 199 of the Constitution after conversion of quashment petition, thus, was coram non judice---Federal Shariat Court had already directed the Trial Court to issue process against the respondent and to decide his case alongwith other respondents in accordance with law---Said judgment rendered by three Judges of the Federal Shariat Court was binding on the High Court and all other Courts subordinate to it under Art.203-GG of the Constitution, and a Single Judge of High Court had no jurisdiction to sit in judgment over the judgment . of the Federal Shariat Court which had exclusive jurisdiction in the matter and its decision had a binding effect---Matter being exclusively amenable to the jurisdiction of the Federal Shariat Court under Art. 203-G of the Constitution, the impugned judgment passed by the Single Judge of the High Court was set aside being coram non judice with the directi6n to Trial Court to proceed with the complainant as directed by the Federal Shariat Court and decide `the same in accordance with law---Appeal was allowed accordingly.
Akhtar Masood Khan, Advocate Supreme Court for Petitioner.
Nemo for Respondents Nos. 1 and 2.
Ms. Afshan Ghazanfar, Advocate Supreme Court for the State.
Hafiz S.A. Rehman, D.A.-G. (on Court's Notice).
Date of hearing: 3rd November, 2003.
2004 S C M R 1467
[Supreme Court of Pakistan]
Present Syed Deedar Hussain Shah and Falak Sher, JJ
AFTAB HUSSAIN ---Petitioner
Versus
THE STATE---Respondent
Criminal Petition for Leave to Appeal No. 105-L of 2004, decided on 11th June, 2004.
(On appeal from the judgment/order of the Lahore High-Court, Lahore, dated 27-1-2004, passed in Criminal Miscellaneous No. 118-B of 2004).
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss.302/324/148/149/109--Constitution of Pakistan (1973). Art.185(3)---Bail, grant of---Two co accused in the case who had been attributed the same role of ineffective firing as assigned to the present accused, had been allowed the concession of bail by the High Court---Mere registration of other F.I.Rs. against the accused without conviction could not be considered as a circumstance against him---Case of the accused, prima facie, was that of further inquiry---Accused was admitted to bail in circumstances.
Inayatullah Khan Niazi, Advocate Supreme Court and Tanveer Ahmad, Advocate-on-Record (absent) for Petitioner.
Azhar Naveed Shah, Advocate Supreme Court and Muhammad Nawaz S.-I. Police Station Saddar T.T. Singh for the State.
Date of hearing: 11th June, 1994.
2004 S C M R 1469
[Supreme Court of Pakistan]
Present Mian Muhammad Ajmal, Sardar Muhammad Raza Khan and Karamat Nazir Bhandari, JJ
NAVID AKHTAR and others---Petitioners
Versus
MUHAMMAD SAEED KHAN and another---Respondent
Criminal Petitions Nos. 92 and 94 of 2003, decided on 23rd October, 2003.
(On appeal from the judgment of tire Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 7-2-2003 passed in Criminal Appeal No. 9/2000 and Criminal Revision No. 11 of 2000).
Penal Code (XLV of 1860)-----
----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Plea of self defence taken by the accused was unfounded as he had failed to discharge the onus on him by proving the same through cogent evidence, so much so that he did not even appear under S.340(2), Cr.P.C. to give evidence on oath in disproof of the charges or allegations against him---Ocular testimony was reliable which was supported by the production of his licensed pistol by the accused---Crime empties recovered from the spot had matched with the licensed pistol of the accused---Medical evidence had further supported the prosecution version---Prosecution, thus, had proved its case beyond any doubt---Occurrence being a sudden one and being neither premeditated nor motivated, Trial Court had awarded lesser punishment to accused which being legal had rightly been affirmed by the High Court---Two Courts had awarded one of the legal punishments after proper appraisal of evidence which did not need enhancement---Leave to appeal was refused by Supreme Court accordingly.
Qazi Muhammad Amin, Advocate Supreme C6urt and Ch. Akhtar Ali, Advocate-on-Record for Petitioner (in Criminal Petition No.92 of 2003).
Nemo for Respondent (in Criminal Petition No.92 of 2003).
Tariq Azam Chaudhry, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner (in Criminal Petition No.94 of 2003).
Nemo for the State (in Criminal petition No.94 of 2003).
Date of hearing: 23rd October. 2003.
2004 S C M R 1472
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, CJ. and Abdul Hameed Dogar, J
MUHAMMAD ASHRAF KHAN---Petitioner
Versus
DIRECTOR FOOD, PUNJAB, LAHORE and another---Respondents
Civil Petition No. 1848 of 2002, decided on 16th June, 2004.
(On appeal from the judgment, dated 21-8-2002 of the Punjab Service Tribunal, Lahore in Appeal No.383 of 1992).
(a) Punjab Civil Servants Act (VIII of 1974)-----
----S. 12(1)---Compulsory retirement---Record showed that in, compliance of the show-cause notice, civil servant fully participated in the proceedings and was afforded an opportunity of personal hearing by the Competent Authority---Inquiry had established that huge amount was due from civil servant because of shortage of about 2000 tons of wheat at a Government Godown against the civil servant and it was at his behest that the recovery of the said amount was allowed by the Minister in instalments from him---Such fact amply proved participation of the civil servant in the embezzlement---Acquittal in the criminal case did not debar departmental authorities, from taking action against the civil servant in accordance with service laws and rules, since both proceedings, could go side by side as their nature was quite different-- Acquittal in criminal case is no bar for imposing any penalty in departmental proceedings under Government Servants (Efficiency and Discipline) Rules, 1973---Principles.
Civil servant fully participated in the proceedings and was afforded an opportunity of personal hearing by the Competent Authority. It was established in inquiry that an amount of Rs.1,07,932.50 became due against the civil servant because of shortage of 1535-479 M. Tons and 212.208 M. Tons of wheat at the centre and it was at his behest, the recovery of the said amount was allowed by the then Food Minister in instalments from him. This factor amply proved his participation in the above-mentioned embezzlement. Acquittal in criminal case does not debar Departmental Authorities to take action against civil servant in accordance with the service laws and rules. Both proceedings, can, go side by side, as their nature is totally different. Criminal proceedings are conducted by the Criminal Court on the allegations leveled in the criminal case whereas departmental proceedings proceed on the charges of misconduct and malversation in accordance with service laws. Objects of prosecution on criminal charge and departmental proceedings are entirely different; one relates to the enf9rcement of criminal liability and the other is concerned with service discipline. Acquittal on criminal charge had no bearing on disciplinary proceedings.
Acquittal in criminal case is no bar for imposing any penalty in departmental proceedings under Government Servants (Efficiency and Discipline) Rules, 1973.
Inspector-General of Police Punjab, Lahore and others v. Muhammad Tariq 2001 SCMR 789 fol.
Attaullah Sheikh v. WAPDA and, others 2001 SCMR 269 ref.
(b) Civil service---
---- Acquittal of civil servant in criminal case does not debar Departmental Authorities from taking action against civil servant in accordance with Service Laws and Rules---Principles.
Acquittal in criminal case does not debar Departmental Authorities from taking action against civil servant in accordance with the service laws and rules. Both proceedings, can go side by side, as their nature is totally different. Criminal proceedings are conducted by the Criminal Court on the allegations leveled in the criminal case whereas departmental proceedings proceed on the charges of misconduct and malversation in accordance with service laws. Objects of prosecution on criminal charge and departmental proceedings are entirely different, one relates to the enforcement of criminal liability and the other is concerned with service discipline. Acquittal on criminal charge has, no bearing on disciplinary proceedings.
Acquittal in criminal case is no bar for' imposing any penalty, in departmental proceedings under Government Servants (Efficiency and Discipline) Rules, 1973.
Inspector-General of Police Punjab, Lahore and others v. Muhammad Tariq 2001 SC MR 789 fol.
Attaullah Sheikh v. WAPDA and others 2001 SCMR 269 ref.
Raja Muhammad Asghar Khan, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 16th June, 2004.
2004 S C M R 1476
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ
GHAZANFAR HUSSAIN CHANGEZI---Petitioner
Versus
SECRETARY, MINISTRY OF INTERIOR, GOVERNMENT OF PAKISTAN, ISLAMABAD and 2 others---Respondents
Civil Petition No. 1849 of 2002, decided on 28th June, 2004.
(On appeal from the judgment, dated 31-8-2002 of the Federal Service Tribunal, Islamabad, in Appeal No.43(K)/CS of 2000).
Government Services (Efficiency and Discipline) Rules, 1973---
----R. 6---Manual of Traveling Allowance Rules, R. 5.25---Constitution of Pakistan (1973), Art.212---Dismissal from service---Admittedly, no allegation of corruption or corrupt practice had been levelled against the civil servant, throughout his service; he had been awarded major penalty only for non-attending the Advance Training Course at the Academy which allegedly he declined merely on the ground that he should be paid T.A./D.A.' in advance for going to Islamabad from Karachi; that he had remained absent for 27 days without any justification and when show cause notice was served upon him, he in his reply passed certain objectionable remarks against his Superintendent; and since the civil servant had refused to join Academy, as such, there was no need for holding regular inquiry---Validity---Rule 5.25 of the manual of Travelling Allowance Rules provided that travelling allowance was allowed to the Government Servant who had to undergo a course of training, Competent Authority may allow him to draw travelling allowance, as per scale decided by it, for the original journey to and the last journey from the place of training and for halt at such place---Rule 6, Government Servants (Efficiency and Discipline) Rules, 1973 clearly provided that in case of awarding a major penalty, a proper inquiry was to be conducted wherein a delinquent officer was provided an opportunity of defence and personal hearing after issuing him show-cause notice and filing .of his reply thereto and if the charges were proved in the regular inquiry, thereafter he be penalized---Supreme Court, converted the petition into appeal and impugned judgment of Service Tribunal was set aside and civil servant was ordered to be reinstated within a week---Supreme Court observed that Authorities, however, could hold fresh inquiry, as required under the law, on the basis of facts of the case, if deemed necessary---Principles.
In the present case admittedly, no allegation of corruption or corrupt practice had been levelled against civil servant throughout his service. He had been awarded major penalty only for non-attending the Advance Training- Course at Academy, Islamabad. According to Rule 5.25 of the manual of Travelling Allowance Rules, travelling allowance is allowed to the Government servant who has to undergo a course of training, a Competent Authority may allow him to draw travelling allowance, as per scale decided by it, for the original journey to and the last journey from-the place of training and for halts at such place. The traveling allowance may also be granted for holidays and vacations and journey during the course of training. Irrespective of above, he being a Government servant, his services are to be governed under the. Government Servants (Efficiency and Discipline) Rules, 1973. Rule 6 of the Rules. 1973 clearly stipulates that in case of awarding a major penalty, a proper inquiry was to be conducted wherein a delinquent officer is provided an opportunity of defence and personal hearing after issuing him show-cause notice and filing of his reply thereto and if the charges were proved in the regular inquiry, thereafter, he be penalized.
In case of imposing a major penalty, the principle of natural justice requires that .a regular inquiry is to be conducted in accordance with rule 6 of the Rules and an opportunity of defence and personal hearing is to be provided to civil servant proceeded against.
Federation of Pakistan through Secretary, Establishment Division Government of Pakistan, Islamabad and another v. Noor Jamal, Ex-Executive Engineer 2004 SCMR 294 and Inspector-General of Police, Police Headquarters Office, Karachi and 2 others v. Shafqat Mehmood 2003 SCMR 207 ref.
Muhammad Akram Sheikh, Senior Advocate Supreme Court, Sahibzada Murad Karim Abbasi Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.
Ms. Nahida Mahboob Elahi, Advocate Supreme Court Standing Counsel for Respondents.
Date of hearing: 28th June, 2004.
2004 S C M R 1481
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ
WAPDA---Applicant
Versus
Messrs DADA BHOY CEMENT INDUSTRIES LTD. ---Respondent
Civil Miscellaneous Application No.811 of 2003 in Civil Appeal No. 1840 of 1998, decided on 21st May, 2004.
(a) Supreme Court Rules, 1980---
----O. X, R.1 & O.XIX, R.6---Notice to Advocate-on-Record---Cause list is issued which is equivalent to proper notice to the Advocate-on Record and such is a well entrenched practice of the Supreme Court which is being followed for the last few decades.
(b) Supreme Court Rules, 1980---
----O. XV, R.5---Dismissal of appeal for non-prosecution ---Application for restoration of appeal after lapse of 731 days and seeking condonation of delay---Validity---Application for restoration having been filed long after the expiry of limitation and being otherwise vitiated by unexplained laches and gross negligence, was dismissed---Principles.
Dur Muhammad v. Abdul Sattar PLD 2003 SC 828 fol.
Fazal Ghani Khan, Advocate Supreme Court for Applicant.
Muhammad Ali Sayyeed, Senior Advocate Supreme Court for Respondent.
Date of hearing: 21st May, 2004.
2004 S C M R 1484
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ
Sh. AMJAD AZIZ---Appellant
Versus
HAROON AKHTAR KHAN and 10 others---Respondents
Civil Appeal No.44 of 2004, decided on 20th May, 2004.
(On appeal from the judgment, dated 16-2-2004 of the Lahore High Court/Election Tribunal, Punjab, Lahore, passed in Election Petition No.59 of 2002).
(a) Conduct of General Elections Order [Chief Executive's Order 7 of 2002]---
----Art. 8-A---Educational qualification for member of Parliament/ Provincial Assembly---Candidate who was not a graduate, his candidature to contest the general election suffered from a major defect and he was not qualified to be elected or chosen as a member of the Provincial Assembly.
(b) Conduct of General Elections Order [Chief Executive's Order 7 of 2002]--
----Art. 8-A---Representation of the People Act (LXXXV of 1976), S.69---Educational qualification for member of Parliament/ Provincial Assembly---Disqualification of returned candidate---Phrase "throw away votes"---Meaning---If the disqualification, of a returned candidate was not notorious at the time of polling, the votes polled in favour of the successful candidate could not be thrown away by giving seat to the candidate with next highest votes---Voters, in the present case, did not know that the candidate was not a graduate and lacked requisite qualification for contesting the election---No steps were taken by anybody to bring to the knowledge of the electors that the candidate was not a graduate---Nomination papers of the candidate were accepted without any objection---Such fact unequivocally postulated that the voters were unaware of his disqualification, therefore, rule of "throw away votes" could not. be involved---Principles.
As to what the phrase "throw away votes" means with reference to election, it means that if an elector definitely knows as a fact that the candidate for whom he is about to vote, is disqualified, yet persists in voting for him, the vote is utterly thrown away as if he voted for a dead person or dad not vote at all. With reference to a disqualified person, it is also to be seen if the disqualification not being apparent on the face of it, the votes given by the voters could not be treated as having been thrown away. In order to make the vote a nullity, there must be wilful persistence against known disqualification.
If a person is a candidate who is manifestly disqualified, then in such a case the votes given for him may be treated as having been thrown away, since they were perversely and wilfully given to a candidate whom the electors knew to be disqualified.
But where the disqualification does not appear on the nomination paper and the election proceeds, and the disqualification is not known to the electors, then, unless on a scrutiny a sufficient number of the votes given for the candidate who has the majority can be struck off to give the petitioner a majority, he cannot successfully claim the seat, and the votes given to his opponent cannot be disregarded.
If disqualified candidate was not permitted to contest the election then how the voters would have voted in favour of the candidate who, has secured more votes than other remaining candidates, would be a question in the realm of speculation and unpredictability. In such a situation, declaring the election of the returned candidate invalid on the ground of his initial disqualification to contest the election by itself would not entitle the election petitioner or any other candidate to be declared elected.
If the disqualification of a returned candidate was not notorious at the time of polling, the votes polled in favour of the successful candidate could not be thrown away by giving seat to the candidate with next highest number of votes. In the present appeal, it was riot known to the voters that the candidate was not a graduate and lacked requisite qualification for contesting the election. No steps were taken by anybody to bring to the knowledge of the electors that the candidate was not a graduate. The nomination, papers of the candidate were accepted without any objection. This unequivocally postulates that the voters were unaware of his disqualification, therefore, rule of "throw away votes" could not be invoked.
The Queen v. Mayor, Alderman and Burgess of Tewkesbury (1868) Q.B.D. (sic); Drinkwater v. Deakin (1874) L.R. 9 C.P.626; Beresford Hope v. Lady Sandhurst (1889) L.R. 23 Q.B.D. 79 CA; Hobbs v. Morey (1904) 1 K.B. 74; Templeton v. M'Leod .(1939) S.L.T.(Sh Ct) 41; 1n Re Parliamentary Election for Bristol South East (1964) 2 Q.B. 257; Fitzpatrick v. Hodge 1995 S.L.T. (Sh Ch) 118; Prakash. Khandre v. Dr. Vijaya Kumar Khandre AIR 2002 SC 2345; Kanappa Rudrappa Nadgouda v. Vishwanath Reddy and another (1969(2) SCR 90; Keshav Laxman Borkar v. Dr. Devrao Laxman Anande (1977(3) SCR 538; Thiru John and another v. Returning Officer and other's (1977(3) SCR 538; R.K. Seshadri v. G. Vasantha Pai (1969(1) SCC 27; Lata Devi (Mali) v. Haru Rajwar (1989(4) SCC 773; D.K Sharma v. Ram Sharan Yadav and others (1993 Supp. (2) SCC 117; Dewan Joynal Abedin v. Abdul Wazed (1988 Supp. SCC 580); Munishamappa v. B. Venkatarayappa and others (181(3) SCC 260; Smt. Aslhing Q Lhingjanong v. L.S. John and others (1984(1) SCC 205; Konappa Rudrappa Nadgouda v. Vishwanath Reddy and another (1969(1) SCR 395; Chatturbhuj Vithaldas Jassani v. Moreshwar Parashram and others 1954 SCR 817; Rashid Ahmad Rahmani v. Barkat Ali PLD 1968 SC 301; Lal Muhammad v. Muhammad Usman 1975 SCMR 409; Syed Saeed Hassan v. Pyar Ali PLD 1976 SC 6; Muhammad Ilyas v. The Returning Officer 1981 SCMR 233; Junaid Ahmad Soomro v. Mehmood Ali Bhayo PLD 1986 SC 698; Dr. Sheela B. Charles v. Qaiser Iraeem Soraya 1996 SCMR 1455; Sahibzada Tariqullah v. Haji Amanullah Khar PLD 1996 SC 717; Iqbal Zafar Jhagra v. Khalilur Rehman 2000 SCMR 250; Mian Ahmed Saeed v. Election Tribunal 2003 SCMR 1611; Elahi Bakhsh v. District Judge, Rajanpur PLD 2003 SC 268; Bashir Ahmed Bhanbhan v. Shaukat Ali Rajpur C.A. No.1 of 2004; Sher Zaman Sher v. Jehan Zeb Khan C.P. No.83/P of 2003, Muhammad Ayub v. Ubedullah Khan C.P. No. 1164/K of 2002, and Haji Alam Sher v. Malik Muhammad Nawaz C.P. No. 1760 of 2002. ref.
(c) Election---
------ Throw away votes"---Concept.
Raja Muhammad Anwar, Senior Advocate Supreme Court, Raja M. Shafqat Khan Abbasi, Advocate Supreme Court and Imtiaz Muhammad Khan Advocate-on-Record for Appellant.
Malik Muhammad Qayyum, Advocate Supreme Court, Umer Atta Bandial, Advocate Supreme Court, Shaukat Ali Mehr, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.1.
Nemo for the Remaining Respondents.
Date of hearing: 20th May, 2004.
2004 S C M R 1493
[Shariat Appellate Jurisdiction]
Present: Justice Nazim Hussain Siddiqui, Chairman, Justices Javed Iqbal, Tanvir Ahmed Khan, Dr. Allama Khalid Mahmood and Rashid Ahmed Jullundhari, Members
Mirza TAHIR HUSSAIN ---Appellant
Versus
THE STATE and another---Respondents
Criminal Appeal No. 38(S) of 1998 and Criminal Petition No.26(S) of 1998, decided on 1st December, 2003.
(On appeal from the judgment, dated 29-8-2002 of Federal Shariat Court, Islamabad passed in Crl. A.No.122/I of 1996 and Crl. Rev. 22/1 of 1996).
Penal Code (XLV of 1860)-----
----S. 302---Appreciation of evidence---Close scrutiny of the prosecution's entire evidence on record unequivocally postulated that, it was the accused and accused alone, who had killed the deceased---Fact was established that deceased was the driver of the taxi in question and the accused hired the said taxi to take him to another village---Accused had admitted that he drove the said taxi from place of occurrence to the petrol station and also admitted his presence at the relevant time at the place of occurrence---Dead body of the deceased was recovered after a disclosure was made by accused to the police---Dead body was lying in the bushes and not in the taxi---Prosecution witness maintained that the accused brought taxi at the petrol station, got the same refilled and tried to start the same but filed---Said prosecution witness had noticed bloodstains on front seat and thereafter, informed the police officials available at the hotel adjacent to the petrol station immediately---All this happened swiftly, the police officials immediately reached the petrol pump alongwith owner of the hotel and saw accused in the taxi, when he could not produce its necessary documents and thereafter, pistol and Khanjar were recovered from him---More prosecution witnesses, in the meanwhile also reached the petrol station and identified the taxi which belonged to the owner of the taxi and not the accused (person sitting therein)---Accused, thereafter, in police custody led the police to the place of occurrence and pointed out the dead body of the deceased--Story of alleged scuffle between the deceased with another person, neither named nor his particulars provided, ex facie, did not inspire confidence---Companion of the deceased, in the normal course of events, who allegedly grappled with the 'deceased and killed him, must have taken the pistol with himself and not thrown it away at the scene of occurrence---Accused did not disclose his defence version to the police at the time of arrest nor it was put to the prosecution witnesses at the earlier stage, it Was in fact an afterthought---Defence version, however, was put to only one prosecution witness who vehemently repudiated the same---Robbed taxi was recovered from the possession of accused soon after the occurrence which proved that the accused was guilty of snatching the taxi---Unbroken chain of circumstances existed showing that accused had committed the murder---Accused after getting the taxi refueled, had tried to start the same and never informed the police about the earlier part of the incident---Two different Sessions Judges, had delivered judgments in the prosecution case and both believed the prosecution's version and convicted the accused under S.302, P.P.C.--Federal Shariat Court, held, had rightly awarded death sentenced to the accused in circumstances.
Muhammad Khurshid alias Khurshid v. The State 1973 SCMR 324; Aurangzeb v. The State 1978 SCMR 255 and Fazal Hussain and another v. Suleman Khan and another 1991 SCMR 56 ref.
Dr. Khalid Ranjha, Advocate Supreme Court and M.A. Zaidi Advocate-on-Record for Appellant and for Respondent No. 1 (in Crl. P.No.26(S) of 1998).
Ms. Afshan Ghazanfar, A.A.-G. for the State.
Malik Rab Nawaz Noon Senior Advocate Supreme Court, Mehr Khan Malik, Advocate-on-Record for Respondent No.2 and for Petitioner (in Crl. P. No.26(S) of 1998).
Date of hearing: 1st December, 2003.
2004 S C M R 1502
[Supreme Court of Pakistan]
Present : Hamid Ali Mirza and Sardar Muhammad Raza Khan, JJ
REHMAN---Appellant
Versus
YARA through L.Rs. and others---Respondents
Civil Appeal No. 1487 of 1997, decided on 13th May, 2004.
(On appeal from the judgment, dated 20-11-1995 of the Lahore High Court, Lahore, passed in R.S.A. No.371 of 1971).
(a) Specific Relief Act (I of 1877)---
----S. 39---Limitation Act (IX of 1908), Art. 91---Suit filed not for cancellation of any document---Provisions of Art.91, Limitation Act, 1908 and S.39, Specific Relief Act, 1877 were not attracted.
(b) Specific Relief Act (I of 1877)---
----S. 42---Limitation Act (IX of 1908), Art. 120---Suit for declaration to the effect that plaintiff was the owner in possession of the suit-land and that defendants had no right or interest in the suit-land on the grounds stated in the plaint---Limitation---Provisions of S. 42, Specific Relief Act, 1877 and Art. 120, Limitation Act, 1908 would be applicable whereby the suit for declaration as to right or interest in immovable property could be filed within six years from the date on which right to sue accrued to the plaintiff---Right to sue, had accrued to plaintiff when the defendants in the suit about one week prior to the filing of suit had denied his right of ownership and threatened his possession of the suit-land---Suit having been filed by plaintiff for declaration of his right of ownership in the suit property from the date of cause of action within six years, was not time-
(c) Specific Relief Act (I of 1877)---
----S. 42---Limitation Act (IX of 1908), Art. 120---Suit for declaration of ownership of immovable property---Adverse entry in the Revenue Record---Limitation---Documentary and ocular evidence produced by the plaintiff coupled with admission of witnesses had made it clear that the plaintiff was all along in possession of the suit-land---Suit, in circumstances would be covered by Art. 120 of the Limitation Act, 1908. and the person in possession of the land would not be obliged to rush to the Court only on the basis of adverse entry in the Revenue Record and in such a case plaintiff would get recurring cause of action by each adverse entry in the Revenue Record and plaintiff would be the sole judge of serious threat to his interest---Entry in the Revenue Record was neither a document of title nor a presumptive evidence of title and person may not feel aggrieved of such entry and cause of action in such a case would not accrue when the mutation order-in-original or in appellate or revisional jurisdiction was made---Cause of action would accrue when a person concerned would feel himself aggrieved of the situation when he would feel it necessary to approach the Court of law for relief which he considered fit and proper in accordance with law.
(d) Transfer of Property Act (IV of 1882)---
----S. 41---Specific Relief Act (I of 1877), S. 42---Guardians and Wards Act (VIII of 1890), S. 29---Suit for declaration of ownership of immovable property---Defendant knew that litigation was pending between the parties in respect of land and had knowledge that the title of the vendor was in dispute but in spite of that he purchased the land---Effect---Land which was transferred by way of correction of mutation during the minority of the plaintiff (owner) by his mother without permission of the Guardian Judge as required by S. 29 of the Guardian and Wards Act, 1890, could not be held to be validly sold to the defendant.
Ahmed Khan v. Rasul Shah and others PLD 1975 SC 311; Muhammad Amin and others v. Vakil Ahmed and others AIR 1952 SC 358; Assiz v. Chithamma AIR 1954 TRA-Co. 370; Abdul Karim and others v. Mst. Maniran and others AIR 1954 Patna 6; Ziarat Gul v. Mian Khan PLD 1950 Pesh. 69; Musali Khan v. Nazir Ahmed and others PLD 1952 Pesh. 1; Taj Din and others v. Karim Bukhsh and others 1999 MLD 1216 ref.
Malik Saeed Hassan, Senior Advocate Supreme Court for Appellant.
Gulzarin Kiani, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on Record for Respondents (L.Rs. of respondent No. 1).
Remaining Respondents: Ex parte.
Date of hearing: 13th May, 2004.
2004 S C M R 1510
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry and Javed Iqbal, JJ
ABDUL NABI and another---Petitioners
Versus
THE STATE through NAB---Respondent
Criminal Petition No. 10-Q of 2004, decided on 16th June, 2004.
(On appeal form the judgment of the High Court of Balochistan Quetta, dated 29-12-2003 passed in Cr. Eht. As. Nos. 55 and 56 of 2001).
National Accountability Ordinance (XVIII of 1979)-----
---S. 9---Constitution of Pakistan (1973), Art. 185(3)---Corruption and corrupt practices---High Court in the impugned judgment had remarked that "it may be a matter of concern for the authorities to look into it as to why the persons who were prima facie involved in the scam had been let free by the Investigating Officer and that in several cases the persons involved in the crime and against whom sufficient material had come on record, prima facie, connecting them with the offence had not been arrested/interrogated or challaned for the reason best known to the Investigating Officers which was not only earning bad name to the National Accountability Bureau but in such a way the purpose and intention for which the National Accountability Ordinance 1999 was promulgated was being frustrated"---Superior Court observed that National Accountability Bureau had to initiate action against like minded persons who were responsible for indulging in illegal activities relating to transfer of plots in the names of various persons unauthorisedly because discriminate action against corrupt persons had already eroded the credibility of the National Accountability Bureau and its such conduct ran against the observation of Supreme Court in the case of Zafar Ali Shah v. Parvez Musharraf, Chief Executive of Pakistan (PLD 2000 S.C. 869) wherein action of military take over was validated for one of the reasons that corruption in the country was so rampant amongst the politicians and Government Officers and others due to which economy of the country was about to collapse---Held, it was now the duty of National Accountability Bureau to ensure, indiscriminate criminal action against corrupt persons across the board to establish its credibility amongst the masses, failing which, public exchequer once again shall be looted by the unscrupulous persons who had no interest at all in the well-being of the Nation.
Zafar Ali Shah v. Pervez Musharraf, Chief Executive, of Pakistan PLD 2000 SC 869 quoted.
Hadi Shakil Ahmed, Advocate Supreme Court and M. Anwar Khan Durrani, Advocate-on-Record (absent) for Petitioners.
Nemo for Respondent.
Date of hearing: 16th June, 2004.
2004 S C M R 1518
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal, Muhammad Nawaz Abbasi and Karamat Nazir Bhandari, JJ
MUHAMMAD YAQOOB and others---Petitioners
Versus
Mst. SHARAF NOOR (deceased) through her legal heirs and others---Respondents
Civil Petition No. 1165 of 1999, decided on 11th September, 2002.
(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 3-5-1999 passed in Civil Revision No.42 of 1989).
West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---
----Ss. 2-A & 5---Specific.Relief Act (1 of 1877), S.8---Constitution of Pakistan (1973), Art. 185(3)---Limited estate, termination of--Entitlement of legal heirs---Constitutional jurisdiction of Supreme Court---Re-appraisal of evidence---Petition delayed by one day---Plaintiff sought recovery of possession of suit-land on the ground that the donor of the suit-land was a limited owner and she could not gift it to the defendants---Assertion of the defendants was that at the time when the suit-land was transferred in their name, the donor was full owner of the suit-land---Trial Court decreed the suit and appeal as well as revision were dismissed by Appellate Court and High Court respectively--Validity---High Court in exercise of revisional jurisdiction had rightly found that limited estate in respect of immovable property held by Muslim females under the Custom was terminated with effect from 31-12-1962 in terms of S.5 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962---Half share out of the land held by the donor as a limited owner devolved en her being sister of last male owner, which upon her death devolved upon her legal heirs, if any--Remaining land in despite would also be distributed according to Shariat between the revisioners/heirs of last male owner---Trial Court and Appellate Court concluded that the gift made by the donor was not a valid gift to create any right, title and interest in the property and the concurrent finding of fact of two Courts regarding missing of essential component of a valid gift, was further upheld by High Court, therefore, the same could not be allowed to be re-opened before Supreme Court through reappraisal of evidence---In absence of existence of a valid gift, the property left by last male owner would go to his legal heirs in accordance with the law of inheritance---Judgment passed by High Court was not suffering from any legal infirmity to be interfered by Supreme Court---Petition was barred by one day---Leave to appeal was refused.
Shankarlal Narayandas Mundade v. The New Mofussil Company Limited and others AIR 1946 PC 97 ref.
Abdur Rehman Awan, Advocate Supreme Court instructed by M.A. Zaidi, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 11th September, 2002.
2004 S C M R 1521
[Supreme Court of Pakistan]
Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ
Mst. HANIFA BIBI---Petitioner
Versus
MUNAWAR AHMAD and others---Respondents
Civil Petition No. 2220-L of 1999, decided on 28th January, 2003.
(On appeal from the judgment/order, dated 17-11-1999 of the Lahore High Court, Multan Bench, passed in Civil Revision No. 474 of 1984).
Civil Procedure Code (V of 1908)----
----O.XVIII, R.18---Constitution of Pakistan (1973), Art. 185(3)-- Constitutional jurisdiction of Supreme Court---Factual controversy---Site inspection by Trial Court---Dispute between the parties was with regard to existence of door---Matter was decided after the Court had inspected the site---Validity---Question of fact qua existence of the door needed no further probe by Supreme Court---Neither the concurrent finding of fact by the Courts below could be dislodged nor any illegality or infirmity meriting interference could be pointed out---Leave to appeal was refused.
Sheikh Maqbool Ahmad, Advocate Supreme Court for Petitioner.
Nemo for Respondents.
Date of hearing: 28th January, 2003.
2004 S C M R 1522
[Supreme Court of Pakistan]
Present: Rana Bhagwandas, Abdul Hameed Dogar and Karamat Nazir Bhandari, JJ
ABDUL QADIR---Petitioner
Versus
THE STATE---Respondent
Criminal Petition No. 103-K of 2002, decided on 11-12-2002.
(On appeal from the order, dated 28-8-2002 of the High Court of Sindh, Larkana Circuit Bench passed in Criminal Revision No. 29 of 2002).
Constitution of Pakistan (1973)---
----Art. 185(3)---Counsel and client---High Court had dismissed the Criminal Revision petition of the accused as not pressed by the counsel---Contention of the accused was that he had not instructed the counsel to withdraw the revision petition and he had acted beyond the scope of his authority---Accused by executing Power of Attorney/Vakalatnama in favour of his counsel had given him authority to act, appear and plead on behalf of his client which included the implied authority to withdraw a cause and to settle the dispute on behalf of the client---No complaint admittedly had been lodged against the counsel before any forum---Impugned order did not suffer from any legal infirmity---Leave to appeal was declined to accused accordingly.
Muzaffar-ul-Haq, Advocate Supreme Court and Faizan-ul-Haq, Advocate-on-Record for Petitioner.
Nemo for the State.
Date of hearing: 11th December, 2002.
2004 S C M R 1524
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Sardar Muhammad Raza Khan, JJ
EADA KHAN---Petitioner
Versus
Mst. GHANWAR and others---Respondents
Civil Petition for Leave to Appeal No. 1565-L of 1999, decided on 20th June, 2002.
(On appeal from the judgment, dated 15-7-1999 of the Lahore High Court, Lahore, Multan Bench, Multan in Civil Revision No. 375/D of 1999).
(a) Civil Procedure Code (V of 1908)---
----O.XIV, Rr. 1 & 5---Framing or non-framing of issues ---Effect--Once parties were alive to contentions raised and evidence had been adduced in support thereof, then framing or non-framing of issues would lose significance.
(b) Custom (Punjab)---
---- Proof of---Custom and existence thereof is a question of fact, which is found to be proved strictly qua the tribe involved and not others.
(c) Islamic law---
----Inheritance---Existence of custom depriving females from inheritance at time of opening of succession---Proof---Once such custom was not proved, then property would devolve in accordance with normal principles of Islamic inheritance.
(d) Co-sharer---
----Neither any adverse possession nor any limitation could run against a co-sharer.
Rana A. Rahim Khan, Advocate Supreme Court for Petitioner.
Azam Sultan, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Respondent No.3.
Date of hearing: 20th June, 2002.
2004 S C M R 1526
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Rana Bhagwandas and Khalil-ur-Rehman Ramday, JJ
KARAM ALI (deceased) through legal heirs---Petitioners
Versus
MEMBER (CONSOLIDATION), BOARD OF REVENUE PUNJAB and others---Respondents
Petition for Leave to Appeal No. 907-L of 1999, decided on 28th June 2002.
(On appeal from the order of Lahore High Court, Lahore, dated 10-3-1999 passed in Writ Petition No. 9684 of 1998).
West Pakistan Consolidation of Holdings Ordinance (VI of 1960)-----
----S.10---Constitution of Pakistan (1973), Arts. 185(3) & 199--Consolidation scheme sanctioned by Consolidation Officer was reopened by the Board of Revenue---Petitioners challenged such order through Constitutional petition, but during its pendency, Consolidation Officer in pursuance of such order of Board of Revenue sanctioned the fresh scheme---Petitioners challenged fresh scheme in appeal before Collector failing which they challenged the scheme in Constitutional petition---High Court dismissed Constitutional petition for petitioners having availed remedy against fresh scheme---Contention of petitioners was that in appeal filed against fresh scheme, they could neither challenge order of Board of Revenue nor such appeal was an alternate remedy against an order of Board of Revenue---Validity---Respondents could not meet such contentions of the petitioners---Supreme Court converted petition into appeal, set aside impugned order being not sustainable and remanded the case to High Court for its decision on merits in accordance with law.
Muhammad Naveed Shahryar, Advocate Supreme Court for, Petitioners.
Ejaz Awan, Advocate Supreme Court for Respondents.
Date of hearing: 28th June, 2002.
2004 S C M R 1528
[Supreme Court of Pakistan]
Present: Mamoon Kazi and Wajihudin Ahmad, JJ
Messrs NAFEES SHAUKAT---Petitioner
Versus
Haji NOOR MUHAMMAD ---Respondent
Civil Petition No. 423-K of 1997, decided on 17th July, 1998
(On appeal from the judgment of the High Court of Sindh, dated 9-10-1997 passed in C.R.A. No. 222 of 1997).
Civil Procedure Code (V of 1908)-----
----O. VIII, Rr.10 & 12---Constitution of Pakistan (1973), Art. 185(3)Absence of defendant on date fixed for hearing---Striking off defence--Penal consequences of O.VIII, Rr. 10 and 12, C.P.C.---Applicability--Trial Court, due to absence of defendant, struck off defence and decreed the suit---Order passed by Trial Court was set aside by Appellate Court but High Court in exercise of revisional jurisdiction restored the order passed by Trial Court---Validity---Contention of the defendant was that like O.VIII, R.12, C.P.C., the provisions of O.VIII, R.10, C.P.C. also created a liability and it was not mandatory for the Court to pronounce judgment or strike off defence and the matter being in the discretion of the Court, penalty should not be imposed without compelling reasons--Validity---Such provisions required to be strictly construed and whenever a reasonable doubt had arisen as to its interpretation or implementation, it should have to be resolved in favour of the victim of its application--Petition raised question of public importance which was required to be considered---Leave to appeal was granted.
Sardar Sakhawatuddin v. Muhammad Iqbal 1987 SCMR 1365; Jamal v. Rai Nadeem Ullah Khan 1991 SCMR 1551 and Messrs Jholey Lal Cotton Factory v. Tanweer Ahmad 1989 CLC 625 ref.
Shahenshah Hussain, Advocate Supreme Court, A. Aziz Khan, A. Qadir Khan, Advocate-on-Record for Petitioner.
Muhammad Muzaffarul Haq, Advocate Supreme Court and Faizanul Haq, Advocate-on-Record for Respondent.
Date of hearing: 17th July, 1998.
2004 S C M R 1530
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ
MUHAMMAD MUNIR---Petitioner
Versus
MUHAMMAD SALEEM and others---Respondents
Civil Petition No. 763-L of 1999, decided on 7th May, 2002.
(On appeal from the judgment, dated 7-4-1999 passed by the Lahore High Court, Lahore in R.S.A. No. 483 of 1970).
(a) Specific Relief Act (I of 1877)---
----S. 12---Transfer of Property Act (IV of 1882), S.41--- Constitution of Pakistan (1973). Art. 185(3)---Suit for specific performance of agreement to sell---Vendor after entering into agreement to sell with plaintiff executed sale-deed in favour of defendant in year 1967---Defendant claimed to be bona fide purchaser of suit-land for valuable consideration without noticed prior agreement---Trial Court dismissed suit, which decision was upheld by First Appellate Court, but High Court in second appeal decreed the suit---Validity---Defendant had later on surrendered possession of suit-land in favour of vendor, who had again transferred the same to other persons in year 1982---Defendant despite registered sale-deed in his favour coupled with delivery of possession way back in year 1967 had been out of possession throughout, which rendered transaction in his favour as being shrouded in mystery---Defendant having surrendered vacant possession in favour of vendor had virtually lost his right, interest and title to suit-land---Defendant had not challenged before competent Court subsequent transaction of sale in favour of other persons, who were in possession of suit-land in their own right ---Sale-deed in favour of defendant, thus, would be of no value--Such conduct of defendant had disentitled him to exercise of equitable discretion in his favour---Supreme Court dismissed the petition being misconceived and devoid of merit.
(b) West Pakistan Land Revenue Act (XVII of 1967)-----
----Ss. 39 & 42---Mutation entries in record of rights---Maintained for fiscal purpose---Such entries, neither decide question of title finally nor confer right of ownership to the property.
(c) West Pakistan Land Revenue Act (XVII of 1967)-----
----S. 42---Mutation entries---Power of Revenue Officer to correct wrong entries---Scope---Revenue Authorities may be able to rescind and revoke mutation entries wrongly entered, but they are not empowered in law to annul and set aside a registered sale-deed, which has far greater value and weight.
Ch. Muhammad Afzal Wahla, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 7th May, 2002.
2004 S C M R 1533
[Supreme Court of Pakistan]
Present: Munir A. Sheikh. Actg. C.J. Iftikhar Muhammad Chaudhry and Faqir Muhammad Khokhar, JJ
SAID MUHAMMAD ---Petitioner
Versus
MUHAMMAD HANIF and another---Respondents
Civil Petition No. 2777 of 2001, decided on 24th September, 2002.
(On appeal from the judgment/order, dated 25-7-2001 passed at Lahore High Court, Rawalpindi Bench in Civil Revision No. 62-D of 1999).
Specific Relief Act (I of 1877)---
----S.54---Qanun-e-Shahadat (10 of 1984), Art. ,114---Constitution of Pakistan (1973), Art. 185(3)---Permanent injunction, grant of---Principle of estoppel ---Applicability---Capital Development Authority allotted disputed plot in favour of plaintiff who entered into agreement to sell in favour of defendant---As the plot could not be transferred in favour of any person without permission of ' Capital Development Authority, therefore, in order to secure his rights, the defendant got executed general power of attorney in his favour by the plaintiff---Capital Development Authority on coming to know about the bargain between the parties, initially cancelled the allotment being violative of rules, then subsequently agreed to transfer the same in favour of the defendant subject to deposit of revised price of the plot---Grievance of the plaintiff was that the Capital Development Authority could not transfer the disputed plot to the defendant on the basis of general power of attorney already executed in favour of the defendant---Trial Court dismissed the suit and the judgment and decree was maintained by Appellate Court as well as by the High Court--Validity---If Capital Development Authority had acknowledged the fights of defendant and was of the view to grant him permission to get document of title of plot in his own name, the plaintiff could not object to the same---Same was not a case, of estoppel in strict sense but enforcement and acknowledgement of right of plaintiff under the power of attorney by the transferring authority i.e. Capital Development Authority, therefore, the plaintiff had no right to get any decree for permanent injunction against the Capital Development Authority---Since owner of the property i.e. Capital Development Authority had acknowledged the rights of defendant conferred upon him by plaintiff himself, therefore, there was no reason as to why the plaintiff should object to the same who had received the entire amount of consideration as far back as year, 1976, from the defendant--Judgments passed by the Courts below did not suffer from any legal infirmity---Leave to appeal was refused.
Ms. Nahida Mehboob Ellahi, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.
Respondent No. 1 in person.
Date of hearing: 24th September, 2002.
2004 S C M R 1536
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Muhammad Nawaz Abbasi, JJ
ASHRAF ALI (deceased) through his legal heirs and others---Petitioners
Versus
MARYAM BIBI and 4 others- --Respondents
Civil Appeals Nos. 1521 and 1522 of 1999, decided on 28th November, 2002.
(On appeal from the judgment of Lahore High Court, Lahore, dated 28-6-1999 passed in R.S.A. Nos.516 of 1977 and 535 of 1977 respectively).
(a) Specific Relief Act (I of 1877)---
----S.42---Civil Procedure Code (V of 1908), S.100---Constitution of Pakistan (1973), Art. 185(3)---Title over suit-land---Re-appraisal of evidence---Accepting of second appeal by High Court---Grievance of petitioners was that finding of fact had been recorded by Appellate Court after assessing/perusing the entire evidence on record thus there was no justification with High Court to accept the appeals without giving cogent reasons---Plea raised by the petitioners was that possession of the suit property was passed on to them on 12-2-1969 and there was an entry about possession of the petitioners in the Revenue Record---Petitioners raised further pleas that vendor of the suit-land remained alive for three years after its sale and he did not raise any objection to the transaction and that re-appraisal of evidence on record was necessary for doing justice between the parties---Leave to appeal was granted by Supreme Court to consider the points raised by the petitioners.
(b) Transfer of Property Act (IV of 1882)---
----S.54---Specific Relief Act (I of 1877), S.42---West Pakistan Land Revenue Act (XVII of 1967), Ss. 42 & 45---Civil Procedure Code (V of 1908), S.100---Valid sale---Determination---Re-appraisal of evidence by High Court in exercise of jurisdiction under S.100, C.P.C.---Mutation of sale in favour of defendants was assailed before Trial Court on the ground that the same was the result of fraud---Trial Court decreed the suit in favour of plaintiffs but Appellate Court allowed appeal and dismissed the suit---High Court in exercise of jurisdiction under S.100, C.P.C. reversed the findings of Appellate Court and restored that of the Trial Court---Contention of the defendants was that mutation of sale was sanctioned in open meeting, thus mere denial to the genuineness of the transaction of sale would not be sufficient to challenge the title of the defendants---Validity---High Court was not supposed to disturb the findings of facts based on evidence through reappraisal of evidence in second appeal but if issue of fact had not been properly determined by the Lower Courts by reason of any substantial error or defect of drawing a wrong inference about the correct legal position which materially affected the decision on merits, High Court in second appeal could correct such error in the interest of substantial justice---Controversy as to whether mutation by itself was a sufficient proof of the sale and would create a valid title being a mixed question of law and facts could conveniently be gone into by High Court in second appeal if the inference drawn was contrary to law---High Court having come to the conclusion that no valid sale was in existence between the parties to create title, had rightly reversed the finding of Appellate Court on the relevant issue---Supreme Court declined to take any exception to the conclusion drawn by High Court---Appeal was dismissed.
Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court and C.M. Lateef, Advocate-on-Record (absent) (in both cases) for Appellants.
Muhammad Munir Peracha, Advocate Supreme Court and Ch. Tanveer Ahmed, Advocate-on-Record (absent) (in Loth cases) for Respondents.
Date of hearing: 28th November, 2002.
2004 S C M R 1541
[Supreme Court of Pakistan]
Present: Khalil-ur-Rehman Ramday and Karamat Nazir Bhandari, JJ
ALLAH DITTA---Petitioner
Versus
THE STATE---Respondent
Criminal Petition for Leave to Appeal No. 173-L of 2003, decided on 8th May, 2003.
(On appeal from the order, dated 18-2-2003 passed by the Lahore High Court, Lahore in Criminal Revision No. 56 of 2003).
Criminal Procedure Code (V of 1898)---
----S.514---Constitution of Pakistan (1973), Art. 185(3)---Forfeiture of bond---Petitioner had stood surety for the accused at the time of her release on bail---Due to absence of accused on one of the dates of hearing a notice, was issued to the petitioner to show cause against forfeiture of his bond---Petitioner did not appear before the Court in pursuance of the said notice---Bond furnished by the petitioner was consequently forfeited and the recovery of the amount of bond was directed---High Court in revision reduced the amount from Rs.50,000 to Rs.25,000---Non-appearance of accused before the Trial Court on any date of hearing had made her or her surety liable to pay the amount of bond---Jurisdiction exercised by the Courts below was, thus, valid and legal---Leave to appeal Was refused to petitioner accordingly.
Abdul Sami Khawaja, Advocate Supreme Court for Petitioner.
Nemo for the State.
Date of hearing: 8th May, 2003.
2004 S C M R 1542
[Supreme Court of Pakistan]
Present: Munir A. Sheikh. Iftikhar Muhammad Chaudhry and Faqir Muhammad Khokhar, JJ
MATLOOB HUSSAIN and others---Petitioners
Versus
AHMAD KHAN---Respondent
Civil Petition No. 638 of 2002, decided on 18th September, 2002.
(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, dated 17-1-2002 passed in Civil Revision No.330 of 1993).
Easement Act (V of 1882)-----
----Ss. 61 & 63---Civil Procedure Code (V of 1908), S. 115-Constitution of Pakistan (1973), Art. 185(3)---Licence, termination of-Recovery of possession---Plea of defective title---Plaintiff had established that he constructed house on the plot and the defendants being his step brothers were inducted as licensees for temporary residence---Defendants refused to deliver the possession to the plaintiff, after termination of the licence, on the ground that plaintiff had no title over the suit property--Validity---When plaintiff had established his case, the question of title inter se the parties was not relevant---Once the licence was proved and the same was terminated, the plaintiff was entitled to recover the possession---Findings of facts recorded by Trial Court and affirmed by High Court did not suffer from any illegality such as mis-reading or non reading of evidence of any material piece of evidence---High Court in exercise of jurisdiction under 5.115, C.P.C. had rightly struck down the findings of Appellate Court as the same had rested on non reading of documentary evidence on record---Leave to appeal was refused.
Ajmal Kamal Mirza, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioners.
M. Niaz Ahmed Rathor, Advocate Supreme Court for Respondent.
Date of hearing: 18th September, 2002.
2004 S C M R 1545
[Supreme Court of Pakistan]
Present: Khalil-ur-Rehman Ramday and Muhammad Nawaz Abbasi, JJ
Haji HASHMAT ALI (deceased) through Legal Heirs and another---Petitioners
Versus
MANZOOR AHMED ---Respondent
Civil Petitions Nos. 2010-L and 2011-L of 1999, decided on 17th July, 2002.
(On appeal from the judgment of Lahore High Court, Lahore, dated 27-8-1999 passed in Civil Revisions Nos. 843-D and 844-D of 1986).
(a) Registration Act (XVI of 1968)-----
----Ss. 34 & 35---Registration of document---Non-compliance of provisions of Ss. 34 & 35 of Registration Act, 1908---Effect--Procedural defects in registration of a document neither reflect upon its execution nor invalidate the registration but if the defect is of substantial nature, such as presentation of document by unauthorized person the registration of document in absence of its executant or his authorized representative, the denial of the execution of the document by the executant or the language used in the execution of document is not understandable by the parties or description of the property has been incorrectly given in the document, the registration of the document becomes invalid and is not an evidence of genuineness of transaction---In case of denial of execution- of a document by its executant, the registration of such document, in absence of independent proof of its genuineness,, makes the registration invalid for all practical purposes--Registration endorsement, prima facie, is a proof of execution off document by executant and compliance of all necessary formalities by Registering Officer therefore, presumption of correctness is attached to the document---Non-compliance of requirement of Ss. 34 and 35 of Registration Act, 1908, is only of procedural in nature, the error. does not affect the registration of document---If defect is of substantial nature which is not curable; the registration becomes invalid.
(b) Registration Act (XVI of 1908)---
----Ss. 34, 35 & 38---Specific Relief Act (I of 1877), Ss.39 & 42--Constitution of Pakistan (1973), Art. 185(3)---Registration of document--Procedural defect---Non-appearance of executant before- Registration Officer---Two cross suits were filed by both the parties one for cancellation of registered sale-deed and the other for declaration--Executant of sale-deed alleged fraud and forgery and sought cancellation of registered sale-deed---Executant was not found suffering from any disability for exemption from personal appearance or his through local commission and neither he applied for exec personal appearance nor he made a request for examination through local commission, who was also not appointed through an express order---Both the Courts below dismissed the suit but High Court in exercise of revisional jurisdiction set aside the concurrent findings of fact by the Courts below and decreed the suit---Validity---Due to non-appearance of the executant, the execution of sale-deed by its exectqtant had become doubtful and its registration was invalidated---Record did not contain any explanation as to why the executant did not appear before Registering officer ands why his examination was felt necessary by a Local Commission. Who was neither authorized by the executant nor was appointed by the Registering Officer through express order---High Court had right drawn the conclusion that defects in registration of sale-deed were of substantial nature and the same had invalidated the registration--As executant had denied execution of sale-deed, receipt of sale price and giving authority to Local Commission to make statement on his behalf before Registering authority, therefore, mere registration of sale-deed would not be enough to declare it a legal document of title---Judgment of High Court was not suffering from misreading or non-reading of evidence, therefore, Supreme Curt declined to take any exception to such conclusions ---Leave to appeal was refused.
Muhammad Saleem Shahnazi Advocate Supreme Court and Sh. Salah-ud-Din, Advocate-on-Record for Petitioners.
Nemo for Respondent.
Date of hearing: 17th July, 2002.
2004 S C M R 1551
[Supreme Court of Pakistan]
Present: Khalil-ur-Rehman Ramday and Muhammad Nawaz Abbasi, JJ
MUHAMMAD MUNIR and others---Petitioners
Versus
Hafiz MUHAMMAD RAFIQ and others---Respondents
Civil Petitions Nos. 2534-L, 2536-L, 2547 and 2548-L of 2001, decided on 17th July, 2002.
(On appeal from the judgment of Lahore High Court, Lahore, dated 23-5-2001 passed in Civil Revisions Nos. 1420, 1421, 1422 and 1423 of 1995).
(a) Constitution of Pakistan (1973)---
----Art. 185(3)---Constitutional jurisdiction of Supreme Court---Concurrent findings of fact by the Courts below---Re-appraisal of evidence---Scope---Supreme Court in case of non-reading or mis-reading of evidence can set at naught the concurrent findings of fact but no such interference is made to disturb the finding of fact through re-appraisal of evidence.
(b) Civil Procedure Code (V of 1908)---
----S.115---Revisional jurisdiction of High Court under S.115, C.P.C.--Re-appraisal of evidence --Scope---High Court in exercise of revisional jurisdiction is not supposed to re-appraise the evidence and upset the finding of facts even if erroneous--Reversal of finding of fact by High Court in revisional jurisdiction is only possible in case of misreading or non-reading of evidence or any irregularity in exercise of jurisdiction which can render the judgment of subordinate Courts illegal.
(c) Specific Relief act (I of 1877)---
----S. 42---Civil Procedure Code (V of 1908), S.115---Constitution of Pakistan (1973), Art. 185(3)---Assailing of registered sale-deed--Separate civil revisions decided by High Court in one consolidated judgment---Concurrent findings of fact by the Courts below---Plaintiff sought declaration to the effect that the sale-deed was forged---Trial Court dismissed the suits and Appellate Court as well as High Court dismissed the appeal and revision respectively---Plea raised by the plaintiffs was that as separate revisions were filed before High Court, therefore, the same could not be dismissed with one consolidated judgment---Validity---Plaintiffs neither pointed out any mis-reading or non-reading of evidence on record nor any question of law involved in the case which was, left undecided by the High Court---Separate civil revisions arising out of civil suits which were decided through the consolidated judgment could legally be disposed of through single judgment as all material facts were common in all suits which were tried and disposed of together and thus the disposal of revision petition through the single judgment caused no prejudice to the plaintiffs---Supreme Court declined to interfere with the judgment passed by High Court on such technical grounds---Leave to appeal was refused.
Muhammad Sharif Chohan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.
Ahmed Hasan Khan, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Respondents.
Date of hearing: 17th July, 2002.
2004 S C M R 1555
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Mian Muhammad Ajmal, JJ
UMER BUKHSH----Petitioner
Versus
NIKKU and others----Respondents
Civil Petition No.1403-L of 2002, decided on 4th July, 2002.
(On appeal from the judgment of the Lahore High Court, Lahore dated 11-3-2002 passed in Civil Revision No. 1160-D of 1991).
Specific Relief Act (I of 1877)---
----S.42---Constitution of Pakistan (1973), Art. 185(3)---Declaration as to title over suit land---Plea raised by the defendant was that in presence of the plaintiffs, he had no right to inherit the suit land---Only grievance of the defendant was that the land allotted to predecessor-in-interest of the plaintiffs in lieu of her claim about land left in India was not the entire land which was subject matter of the suit---Land subject-matter of the suit also included the land owned by the defendant in his own rights---Plea raised by the defendant was that finding should have been given on such aspect of the case which was raised in High Court but was not given consideration on the ground that no specific plea to that effect was raised in the pleadings---Validity---As per entries in Revenue Record, High Court should have gone through the question as the plaintiffs themselves claimed to be entitled to inherit the land which was allotted against the claim of their predecessor-in-interest---Such claim of the defendant required further investigation and recording of evidence--Supreme Court converted the petition for leave to appeal into appeal and the case was remanded for decision afresh after recording further evidence---Appeal was allowed.
Shaukat Ali Mehr, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.
Mian Khalid Habib Elahi, Advocate Supreme Court and S. Abul Aasim Jafri. Advocate-on-Record for Respondents.
Date of hearing: 4th July, 2002.
2004 S C M R 1558
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ
WALAYAT KHAN and 3 others------Petitioners
Versus
KHYZER HAYAT KHAN and 6 others----Respondents
Civil Petition No. 1554 L of 2001, decided on 27th September, 2002.
(Off appeal froth the judgment of Lahore High Court, Lahore dated 15-2-2001 passed in R.S.A. No. 269 of 1984).
Punjab Pre-emption Act (I of 1913)--------
----Ss. 4 & 21---Constitution of Pakistan (1973), Art 185(3)---Superior right of pre-emption, exercise of---Sale price of suit-land, non determination of---Rival. pre-emptors, family members of vendor---Plea of collusion ---Pre-emptors assailed the sale of suit-land and to counter the suit, the wife and children of vendor filed another suit pre-empting the sale of the suit-land---Trial Court decided the matter in favour of the wife and children of the vendor but the judgment and decree was set aside by the Appellate Court and the suit of pre-emptors was decreed-- high Court in second appeal restored the ,judgment and decree passed the Trial Court---Contention of the pre-emptors was that the rival pre emptors were members of the family of the vendor who were living him in the same house with no clash of interest and they in collusion the vendees and for their benefit filed the suit to defeat the superior right of pre emption of the pre emptors Pre emptors further contended that the Trial Court passed conflicting decrees by fixing sale price of Rs.13,510 in the suit of the rival pre-emptors and Rs.32,000 in the suit of-the pre-emptors---Other contentions of the pre-emptors was that High Court without attending the pivotal issue relating to collusive nature of suits and non-determination of the market value of the laud by Thai Court, reversed the findings of the Appellate Court through misreading and non-reading of evidence---Leave to appeal was granted by Supreme Court to consider the contentions raised by the pre-emptors.
Syed Najamul Hassan Kazmi, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record (absent) for Petitioners.
Nemo for Respondents.
Date of hearing: 27th September, 2002.
2004 S C M R 1560
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ
MUHAMMAD AMIN alias IRFAN and another---Petitioners
Versus
THE STATE---Respondent
Criminal Petitions Nos.218 and 366-L of 2003, decided on 21st January, 2004.
(On appeal from the order, dated 29-4-2003 of the Lahore High Court, Lahore passed in Criminal Miscellaneous Nos.2085 and 2086/B of 2003)
(a) Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss. 302/324/436/427, P.P.C.--Constitution of Pakistan (1973), Art. 185(3)---Bail---Sufficient incriminating material connecting the accused with the commission of the alleged offence was lacking---Investigation had been conducted in a haphazard manner and no evidence worth the name could be collected against the -accused making a prima facie case against them--Documentary evidence was ambiguous and was not got verified from the concerned quarter authenticity and genuineness of which was yet to be ascertained---Till such determination the concession of bail could not have been withheld in absence of any other incriminating material--Matter fell within the domain of further inquiry---Incident no doubt, was gray, leading to a tragic loss of precious human lives, but no iota of evidence had come on record against the accused---Bail was allowed to accused in circumstances.
Nazir v. State 1978 SCMR 285; Falak Sher v. State 1979 SCMR 103; Arbab Ali v. Khamiso 1985 SCMR 195; Ibrahim v. Hayat Gul 1985 SCMR 382; Najeeb Gul v. Khalid Khan 1989 SCMR 899; Muhammad Sadiq v. Sadiq PLD 1985 SC 182; Muhammad Amir v. State 1985 SCMR 565; Manzoor and 4 others v. State PLD 1972 SC 81; Bashiran Bibi v. Nasar Ahmad Khan PLD 1990 SC 83; Pakistan Oil Mills v.. Sale Tax Officer 1969 SCMR 175; Mst. Zaro v. State 1974 SCMR 11 and Abdul Haq v. State 1979 SCAR 254 ref.
(b) Criminal Procedure Code (V of 1898)---
----S.497---Bail---Principle---Onus is on the prosecution to disclose those reasonable grounds existing on record which connected the accused with the commission of the alleged offence of examination by the Court in bail matter.
Manzoor and 4 others v. State PLD 1972 SC 81 ref.
(c) Constitution of Pakistan (1973)-----
----Art. 185(3)---Leave to appeal to Supreme Court---Grant or refusal of---Principles---Supreme Court would be reluctant to interfere in matters involving exercise of discretion, but in exceptional cases where the interest of justice demands and it is evident that either a provision of law has been misconstrued or wrongly applied or the decision is contrary to the principles laid down by Supreme Court as well as those governing the safe administration of criminal justice, then it is the Constitutional obligation of Supreme Court to set the matter right.
Bashiran Bibi v. Nasar Ahmad Khan PLD 1990 SC 83; Pakistan Oil Mills v. Sale Tax Officer 1969 SCMR 175; Mst. Zaro v. State 1974 SCMR 11 and Abdul Haq v. State 1979 SCMR 254 ref.
Wasim Sajjad Senior Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record (absent) for Petitioner (in Criminal Petition No. 218 of 2003).
Muhammad Sharif Chohan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Petitioner (in Criminal Petition No. 366-L of 2003).
Raja M. Irshad, Deputy Attorney-General, and Ms. Afshan Ghazanfar, A.A.-G. for Respondents.
Date of hearing: 21st January, 2004.
2004 S C M R 1568
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Faqir Muhammad Khokhar and Falak Sher, JJ
WAHEED ULLAH---Appellant
Versus
Mst. REHANA NASIM and others---Respondents
Civil Petition No. 1077-L of 2003, decided on 4th June, 2003.
(On appeal from the judgment; dated 2-4-2003 of the Lahore High Court passed in Writ Petition No- 16407 of 2002).
West Pakistan Urban Rent Restriction Ordinance (VI of 1959)----
----S. 13(6)---Denial of relationship of landlord and tenant----Tenant alleged oral agreement to sell to his favour by landlord---Rent Controller passed order for deposit of rent under S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959 with observations that tenant should first establish oral agreement before proper forum---Rent Controller passed ejectment order against tenant for his failure to comply with order of deposit of rent---Appeal and Constitutional petition filed by tenant were dismissed by Appellate Court and High Court respectively--Validity---Tenant should have complied with order of deposit of rent. in order to qualify him to be heard in support of his plea---Such plea did not appear to be bona fide---Till decision of Court of competent jurisdiction about existence of oral agreement of sale, same could not be made basis for denying landlord's right of rent and to protect such right of landlord impugned order was necessary to be passed so that he might not be deprived of rent in frivolous litigation---Supreme Court dismissed petition and refused leave to appeal.
A.H. Masood, Advocate-on-Record for Appellant.
Nemo for Respondent.
Date of hearing: 4th June, 2003.
2004 S C M R 1570
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Tanvir Ahmed Khan, JJ
Mian MUHAMMAD AFZAL---Petitioner
Versus
PROVINCE OF PUNJAB and others---Respondent
Civil Petition for Leave to Appeal No. 513/L of 2002. decided on 1st July, 2002.
(On appeal from the order, dated 31-12-2001 of the Lahore High Court, Lahore passed in Writ Petition No. 21740 of 2001)
Educational institution---
---- Educational institution---Admission in medical college- -Fixation of upper age limit---Grievance of candidate was that the authorities could not fix upper age limit of 25 years for admission in medical colleges--Constitutional petition filed by the candidate was dismissed by High Court---Plea raised by the candidate was that he was non-suited on account of fixation of upper age limit---Validity---Candidate by getting admission in F.Sc. with Biology and Science subjects had neither acquired any vested right to admission in M.B.B.S. nor the authorities were debarred from prescribing maximum age limit for admission to such course of studies---Matter purely being of an administrative nature relating to policy of Government, Supreme Court declined to interfere with the same---Leave to appeal was refused.
Sultana Khokhar v. The University of the Punjab through its Registrar PLD 1962 SC 35 ref.
Ch. Naseer Ahmed Bhutta, Advocate Supreme Court and S. Abul Aasim Jafri, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 1st July, 2002.
ORDER
2004 S C M R 1571
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Faqir Muhammad Khokhar, JJ
MUHAMMAD SHARIF and others---Petitioners
Versus
ABDUR REHMAN---Respondent
Civil Petition No. 1298-L of 1999, decided on 2nd December, 2002.
(On appeal from the judgment, dated 24-6-1999 of the Lahore High Court, Lahore passed in Regular Second Appeal No. 93 of 1978).
Civil Procedure Code (V of 1908)---
----S. 100---Constitution of Pakistan (1973), Art. 185(3)---Jurisdiction of High Court under S.100, C.P.C.---Scope---Re-appraisal of evidence--Trial Court while accepting evidence of witnesses produced by defendants did not take into consideration the material fact that the case of estoppel as alleged by them was not put to plaintiff when he appeared as a witness which aspect of the evidence was ignored---Suit was dismissed by Trial Court but Appellate Court allowed the appeal and the suit was decreed---High Court, after reappraisal of evidence dismissed the second appeal filed by the defendants---Plea raised by the defendants was that High Court could not reappraise the evidence while deciding second appeal---Validity---Such aspect of the evidence which had been ignored by Trial Court had material bearing on the fate of the case and the findings of Trial Court were based on ignoring such material piece of evidence---High Court was justified in law to reappraise the evidence of the witnesses to arrive at a conclusion whether the appraisal of their evidence by the Trial Court in its judgment dismissing the suit was correct---Supreme Court itself compared the findings recorded by High Court and the statements of the witnesses produced by defendants in the original record---Judgment passed by High Court not suffering from any misreading or non-reading of material evidence leave to appeal was refused.
Mian Fazl-e-Mahmood, Senior Advocate Supreme Court and Tanvir Ahmad Advocate-on-Record for Petitioners.
Sheikh Khizar Hayat, Advocate Supreme Court and Mahmudul Islam Advocate-on-Record for Respondent.
Date of hearing: 2nd December, 2002.
2004 S C M R 1574
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Faqir Muhammad Khokhar, JJ
MUHAMMAD IQBAL---Petitioner
Versus
ADDITIONAL DISTRICT JUDGE, BAHAWALPUR and others---Respondents
Civil Petition No. 673-L of 2003, decided on 13th May, 2003.
(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench, Bahawalpur, dated 17-1-2003 passed in Writ Petition No. 2996 of 2000).
West Pakistan Family Courts Act (XXXV of 1964)-----
----Ss. 5, 9 & Sched.---Constitution of Pakistan (1973), Art. 185(3)-------- Suit for recovery of dower amount---Ex parte decree, setting aside of--Plea of defendant was that two suits were pending against him before Trial Court one for recovery of dower and other for recovery of damages, that he was under impression that both suits Mad been consolidated; that since suit for damages was dismissed for non prosecution, he assumed that suit for dower had also been dismissed--Trial Court dismissed application for setting aside ex parte decree for not disclosing sufficient cause---Appeal and Constitutional petition filed by defendant were dismissed by Appellate Court and High Court respectively---Validity---No formal order for consolidation of both suits had been passed by Trial Court---Dates of hearing in both suits were different---Copy of Nikahnama relied upon by defendant did not contain signatures of plaintiff---Impugned order did not suffer from any illegality---Supreme Court dismissed petition and refused leave to appeal.
Muhammad Hanif Niazi, Advocate Supreme Court and Malik Rehmat Khan Awan, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 13th May, 2003.
2004 S C M R 1576
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, C. J., Sardar Muhammad Raza Khan and Faqir Muhammad Khokhar, JJ
MUHAMMAD SHAHBAZ and others---Petitioners
Versus
MUHAMMAD ASLAM and others---Respondents
Civil Petition No. 2175-L of 2002, decided on 1st July, 2002.
(On appeal from the orders, dated 25-4-2001, 25-2-2004 and 5-6-2002 of the Lahore High Court in Civil Revision No. 1123 of 2000).
Civil Procedure Code (V of 1908)---------
----S. 115---Limitation Act (IX of 1908), S.5---Constitution of Pakistan (1973), Art. 185(3)---Revision, restoration of---Failure to seek condonation of delay---Revision was dismissed for non-prosecution and application for restoration of the revision was also dismissed for non-prosecution---Application for restoration of said application was also dismissed on the ground that such application was barred by time and neither any sufficient cause had been shown to seek condonation of delay nor any application under S.5 of Limitation Act, 1908 was filed--Effect---Order passed by High Court did not disclose any material irregularity warranting interference by Supreme Court as the application was justifiably dismissed for non-prosecution and on the ground of limitation--Leave to appeal was refused.
Mushtaq Ahmad Qureshi, Advocate Supreme Court for Petitioners.
Nemo for Respondents.
Date of hearing: 1st July, 2002.
2004 S C M R 1578
[Supreme Court of Pakistan]
Present: Rana Bhagwandas, Sardar Muhammad Raza Khan and Khalil-ur-Rahman Ramday, JJ
MUHAMMAD YASIN and others---Petitioners
Versus
MEMBER, BOARD OF REVENUE and others---Respondents
Civil Petition for Leave to Appeal No. 389-L of 2002, decided on 11th July, 2002.
(On appeal from the judgment, dated 8-11-2001 of the Lahore High Court, Lahore passed in Writ Petitions No. 243/R of 1994).
Displaced Persons (Land Settlement) Act (XLVII of 1958)---
----Ss. 10, 11 & 14(1-A)(a)---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2(2)---Constitution of Pakistan. (1973), Arts. 185(3) & 199---Allotment by Settlement authorities--Verification of claims---Pendency of proceedings---Constitutional jurisdiction of High Court---Disposal of Constitutional petitions together---Leave to appeal was granted by Supreme Court to consider, whether entitlement of petitioners against verification of separate claim forms warranted a separate and independent consideration by High Court and the matter should not have been mingled with the other Constitutional petitions and heard together, particularly when each allotment had taken place through different orders passed by Additional Settlement Commissioner, whether filing of application under Ss. 10 and 11 of Displaced Persons (Land Settlement) Act, 1958, needed to be decided on its own distinct premises; whether the case of petitioners fell within the ambit of S.2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, and the petitioners were entitled to the benefit of S.14(1-A)(a) of Displaced Persons (Land Settlement) Act, 1958, because of the pendency of dispute before a Court of competent jurisdiction; whether High Court had properly appreciated various orders passed by Settlement Authorities; whether in the light of positive report given by Additional Deputy Commissioner (General), the petitioners were entitled to get the land settled against their pending units and whether the remand in question would prolong the suffering of the petitioners.
Ghulam Mahmood Qureshi, Advocate Supreme Court and M.A,. Qureshi, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 11th July, 2002.
2004 S C M R 1580
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan acid Falak Slier, JJ
ALLAH BAKHSH and another---Petitioners
Versus
FALAK SHER ---Respondent
Civil Petitions Nos.1443-L to 1445-L of 2003, decided on 23rd December, 2003.
(On appeal from the judgment of the Lahore High Court, Lahore, dated 12-5-2003 passed in Civil Revisions Nos. 1564 of 2001, 1620 of 2001 and 1621 of 2001 respectively).
Punjab-Pre-emption Act (IX of 1991)-----
----S. 13---Talb-e-Ishhad, performance of---Proof---Non-service of registered letter was due to defendant's refusal to receive same---Both parties were residents of same village and they knew each other---Minor discrepancy of tithe would not come in the way of pre-emptor--- Decree passed by Courts below did not suffer from any legal infirmity, misreading or non-reading of evidence---Supreme Court dismissed petition and refused leave to appeal.
Ch. Khurshid Ahmed, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioners:
Hasnat Ahmed Khan; Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record for Respondent.
Date of hearing: 23rd December, 2003.
2004 S C M R 1581
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Muhammad Nawaz Abbasi, JJ
MUHAMMAD IQBAL---Appellant
Versus
MUHAMMAD ASHRAFRespondent
Civil Appeal No.2016 of 1998, decided on 27th November, 2002.
(On appeal from the judgment, dated 12-12-1997 passed in Peshawar High Court, Circuit Branch, Abbotabad in Civil Revision No. 25 of 1992).
(a) Constitution of Pakistan (1973)---
----Art. 185(3)---Leave to appeal was granted by Supreme Court to consider, whether High Court was justified in reversing the judgment of Appellate Court which was based on the rule laid down by the Supreme Court.
1989 SCMR 130; AIR 1937 Lah. 288; AIR 1987 All. 518 and 708 and AIR 1923 Lah. 205 ref.
(b) Specific Relief Act (I of 1877)---
----S. 54---Co-sharer in joint undivided property---Rights, determination of---Principles---Undertaking by defendant to remove construction in case the disputed area would fall within the share of plaintiff---Grievance of the plaintiff was that he was a co-sharer in the suit-land and defendant was raising construction over a portion of the land without having the same partitioned---Trial Court dismissed the suit but Appellate Court reversed the judgment of Trial Court and the suit was decreed---High Court in exercise of revisional jurisdiction restored the judgment passed by Trial Court---Plea raised by the plaintiff was that a co-sharer could not be permitted to raise construction over joint property without the consent of the other co-sharer or without partition --- Validity---Co-sharer in joint property could neither make any change in the property without the consent of other co-sharer, nor he could deal with the joint property in a manner prejudicial to the interest of other co-sharer without his permission---Every owner in joint property was deemed to be interested in every inch of the property, therefore, one co-sharer could not be allowed to act adversely to the interest of other co-sharer---Co-sharer while in possession of a specific portion of joint property either in consequence to family arrangement or otherwise could not be restrained from lawful utilization of the property in his possession as per his need subject to the adjustment in the partition---Defendant had given undertaking for removal of the construction if ultimately the portion of land under construction would not fall to his share in the partition and consequently, the right of plaintiff as a co-sharer in the joint property would be protected---Plaintiff instead of undertaking the futile exercise of litigation in the matter should have concentrated in availing of remedy for partition---Supreme Court declined to .interfere with the judgment and decree passed by High Court.
1989 SCMR 130; AIR 1937 Lah. 288; AIR 1987, All. 518 and 708 and AIR 1923 Lah. 205 ref.
Malik Muhammad Nawaz, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.
Respondent in person.
Date of hearing: 27th November, 2002.
2004 S C M R 1585
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Tanvir Ahmad Khan, JJ
NUR MUHAMMAD ---Petitioner
Versus
Mst. AISHA---Respondent
Civil Petition for Leave to Appeal No. 1986/L of 1999, decided on 27th June, 2002.
(On appeal from the judgment, dated 6-7-1999 of the Lahore High Court, Lahore, passed in Civil Revision No. 1644-D of 1999).
West Pakistan Land Revenue Act (XVII of 1967)---
----S. 45---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan (1973), Art. 185(3)---Mutation, assailing of---Concurrent finding of fact by the Courts below---Disputed mutation was alleged to be the result of fraud---All the Courts decided the matter in favour of the plaintiff---Validity---two Courts below, after scanning the evidence threadbare decreed the suit of plaintiff and High Court had maintained the same by giving cogent and sound reasons---Defendant failed to make out a case for interference by Supreme Court---Leave to appeal was refused.
Malik Noor Muhammad Awan, Advocate Supreme Court and S. Abul Aasim Jafri, Advocate-on-Record for Petitioner.
Nemo for Respondent.
Date of hearing: 27th June, 2002.
2004 S C M R 1587
[Supreme Court of Pakistan]
Present: Munir A. Shaikh, Faqir Muhammad Khokhar and Falak Sher, JJ
MUHAMMAD ASLAM---Petitioner
Versus
SENIOR MEMBER (COLONIES), BOARD OF REVENUE, PUNJAB and others---Respondents
Civil Petition No. 1415-L of 2003, decided on 6th June, 2003.
(On appeal from the judgment, dated 7-5-2003 of the Lahore High Court, Multan Bench passed in Writ Petition No. 6827 of 1995).
Constitution of Pakistan (1973)---
-------Art. 199---Constitutional petition---Maintainability---Alternate remedy, when a ground for non-maintainability of petition---High Court dismissed petition after ten years of its admission on the ground of availability of alternate remedy of invoking arbitration clause in the agreement---Validity---Mere availability of alternate remedy would not be a ground for holding Constitutional petition as non-maintainable without applying judicial mind to question, whether same was in fact available, if so, whether same was adequate and efficacious remedy--Availability of alternate remedy would not render Constitutional petition as un maintainable nor same was a matter affecting jurisdiction of Court to entertain Constitutional petition---Availability of alternate remedy would only be relevant to decide, whether discretion under Art. 199 of the Constitution should be exercised or not, which decision would be made on judicial application of mind to facts of each case---Finding with regard to non-maintainability of Constitutional petition would constitute a decision that High Court was not vested with jurisdiction to entertain same---Commissioner had been named as arbitrator in the agreement---Office of Commissioner had been abolished under new District Government System, thus arbitration clause had been rendered ineffective and alleged alternate remedy would not be available---Supreme Court accepted appeal, set aside impugned judgment and remanded case to High Court for its decision on merits.
Muhammad Akram Sheikh, Senior Advocate Supreme Court and Mahmood-ul-Islam, Advocate-on-Record for Petitioner.
Ms. Yasmin Sehgal, A.A.-G. for Respondents (on Court's Notice).
Date of hearing: 6th June, 2003.
2004 S C M R 1589
[Supreme Court of Pakistan]
Present: Qazi Muhammad Farooq and Muhammad Nawaz Abbasi, JJ
Master MAZHAR HUSSAIN and another---Petitioners
Versus
Mst. ROBINA BIBI and another---Respondents
Civil Petition No. 1629 of 2002, decided on 3rd December, 2002.
(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, dated 30-7-2002 passed in Civil Revision No. 498 of 2002).
Constitution of Pakistan (1973)---
----Art. 185(3)---Administration of justice---Technicalities---Concurrent findings of fact by the Courts below---Raising of new plea---Suit for recovery of money was decreed in favour of plaintiff by Trial Court and the judgment and decree was maintained by Appellate Court as well as by the High Court---Contention of the defendant was that it was a case of collective responsibility and the decree only against the defendant would not be executable---Validity---Such objection having not been taken at the proper stage of the proceedings, Supreme Court refused to allow the defendant to raise the same for the fist time---Technical defect in the suit, in any case, would not make the decree inexecutable---Supreme Court declined to interfere with the concurrent findings of fact by the Courts below---Leave to appeal was refused.
Zaheer Ahmed Qadri, Advocate Supreme Court and M. A Zaidi Advocate-on-Record for Petitioners.
Sardar Asmatullah, Advocate Supreme Court and Imtiaz Muhammad Khan., Advocate-on-Record for Respondents.
Date of hearing: 3rd December, 2002.
2004 S C M R 1591
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ
Mst. MALKANI---Appellant
Versus
Mst. BAKHAT BEGUM and 13 others---Respondents
Civil Appeal No. 423 of 1997, decided on 4th November, 2002.
(On appeal from the judgment of Lahore High Court, Lahore, Rawalpindi Bench, dated 16-5-1994 ,passed in Regular Second Appeal No. 167 of 1975).
(a) Registration Act (XVI of 1908)---
----S. 50---Civil Procedure Code (V of 1908), S.100 --- Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to consider, whether in the facts and circumstances appearing on the record, High Court was justified in reversing the judgment and decree passed by Appellate Court, and whether S.50 of Registration Act. 1908, relied upon by the petitioner had any bearing on the case.
(b) Adverse possession---
---- Ownership through adverse possession claiming of ---Principles--Persons claiming such ownership has to prove the time when lawful possession was converted into adverse possession---Continuous and peaceful possession for any length of time is not a hostile possession and cannot be termed as adverse possession to the title of true owner.
(c) Adverse possession---
---- Approbate and reprobate---Principle of----Applicability---Taking conflicting pleas of ownership by purchase and by adverse possession would tantamount to approbate and reprobate.
(d) Civil Procedure Code (V of 1908)---
----S. 100---Second appeal---Findings of facts at variance---Powers of High Court under S.100, C.P.C.---Scope where finding of facts of Trial Court and Appellate Court are at variance and if the findings of Appellate Court are not supported by evidence on record or a material, piece of evidence is not taken into consideration or such findings are not based on logical reasoning and/or are found arbitrary or capricious, such findings should be rejected in second appeal.
(e) Civil Procedure Code (V of 1908)---
----O.XX, R.4---Judgment, basis of---Evidence on record---Scope---Party claiming a right in civil suit must succeed on the basis of his own evidence but the Court must consider the entire evidence on record brought by both the sides to arrive at correct conclusion.
(f) Specific Relief Act (I of 1877)---
----S. 42---Registration Act (XVI of 1908), S. 50---Title over suit-land--Plea of ownership by purchase and adverse possession---Sale-deed registration of---Dispute related to the ownership of Haveli---Appellant sought possession over a portion of land included in Haveli on the basis of registered sale-deed---Assertion made by the respondents was that they had been in possession of the suit property since 1955, on the basis of unregistered sale-deeds, therefore, they were the owners of the property---Judgment and decree passed by Trial Court was set aside by Appellate Court but High Court reversing the findings of Appellate Court restored those of the Trial Court---Validity---Suit Haveli was jointly owned by the parties to the extent of areas purchased by them through unregistered and registered sale-deeds---Judgment of the High Court was set aside by the Supreme Court with direction for the modification of the decree passed in the suit for declaration filed by respondents---Case was remanded to the Trial Court and it was directed that the suit for possession was to be deemed to be pending---Supreme Court allowed the appellant to amend her suit for including the relief of partition of the suit property---Appeal was allowed.
Muhammad Munir Peracha, Advocate Supreme Court and Ijaz Muhammad Khan, Advocate-on-Record for Appellant.
M Younas Bhatti, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents Nos. 1 to 10.
Date of hearing: 4th November, 2002.
2004 S C M R 1597
[Supreme Court of Pakistan]
Present: Rana Bhagwandas, Syed Deedar Hussain Shah; and Hamid Ali Mirza, JJ
REHMAT ALI through Legal Heirs and 10 others---Appellants
Versus
ALLAH BACHAYO---Respondent
Civil Appeal No. 972 of 1999 decided on 2nd August, 2002.
(On appeal from the judgment, dated 13-3-1990 of High Court of Sindh, Hyderabad Circuit passed in F.R.A. No. 28 of 1985).
Sindh Rented Premises Ordinance (XVII of 1979)---
----S. 15---Damage to property---Removal of wooden stairs and its replacement by R.C.C. structure---Effect---Such construction would rather increase value of property.
Abul Khair, Advocate Supreme Court/Advocate-on-Record for Appellants.
Respondent in person.
Date of hearing: 2nd August, 2000.
2004 S C M R 1598
[Supreme Court of Pakistan]
Present: Mian Muhammad A,jmal and Tanvir Ahmad Khan, JJ
MUHAMMAD ABDUL LATEEF---Petitioner
Versus
Sheikh MUHAMMAD IKRAM, ADDITIONAL DISTRICT JUDGE, LAHORE and 3 others---Respondents
Civil Petition No. 3296-L of 2001, decided on 24th June, 2002.
(On appeal from the judgment, dated 14-9-2001 of the Lahore High Court, Lahore passed in Writ Petition No. 23750 of 2000).
West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5 & Sched.--Constitution of Pakistan (1973), Art. 185(3)---Maintenance of minor children- --Right of daughter to receive maintenance till her marriage---Father of the minors was Executive Engineer in Pakistan Works Department---Family Court having found minors entitled to the maintenance, fixed the same at the rate of Rs.3000 per child per month---Appeal filed by father was dismissed with the modification that the minor daughter would be entitled to recover the maintenance till her marriage or till her custody was lawfully given to him---Judgment and decree passed by Appellate Court was maintained by High Court in exercise of Constitutional jurisdiction---Validity---Keeping in view the socio economic status of the father, the two Courts of competent jurisdiction had rightly fixed the maintenance for the children---High Court on assessment of the evidence on record was justified to uphold the concurrent findings of fact by the two Courts below---Father was under moral and legal duty to maintain his children in befitting manner and he could not escape from his liability on flimsy grounds---Leave to appeal was refused.
Ch. Inayatullah, Advocate Supreme Court and Tanvir Ahmad Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 24th June, 2002.
2004 S C M R 1600
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Falak Sher, JJ
GUL MUHAMMAD and others---Petitioners
Versus
MATAA MUHAMMAD --- Respondent
Civil Petition No. 234-L of 2002, decided on 22nd December. 2003.
(On appeal from the order of the Lahore High Court, Lahore, dated 18-11-2002 passed in Civil Revision No: 1709 of 1996).
Civil Procedure Code (V of 1908)---
----S. 148 & O. XX, R. 14---Decree in pre-emption suit---High Court in revision directed pre-emptor to deposit incidental charges by specified ,date otherwise suit would stand dismissed---Application for extention of time was allowed by High Court on the ground that pre-emptor had deposited major amount within stipulated time, while remaining amount being a minor portion could not be deposited due to lack of knowledge about passing of order regarding such charges; that pre-emptor had been vigilantly pursuing cause before available forums; and. that in case of refusal of such application, pre-emptor would suffer immense loss---Impugned judgment did not suffer from any legal infirmity, --Supreme Court dismissed petition and refused leave to appeal.
Qazi Khurshid Alam Siddiqui, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate-on-Record for Petitioners.
M. Farooq Qureshi Chishti, Advocate Supreme Court for Respondent.
Date of hearing: 22nd December, 2003.
2004 S C M R 1602
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal, Muhammad Nawaz Abbasi and Karamat Nazir Bhandari, JJ
MUHAMMAD SAFDAR ABBASI---Petitioner
Versus
AAMIR YAR MALIK and 3 others---Respondents
Civil Petition No. 1646 of 2002, decided on 3rd October, 2002.
(On appeal from the judgment of Lahore High, Court, Lahore dated 24-9-2002 passed in Writ Petition No. 17427 of 2002).
Representation of the People Act (LXXXV of 1976)---
----S. 99(1)(cc)---Constitution of Pakistan (1973), Arts. 63(1)(d), 225, 185(3) & 199---Election---Factual controversy---Constitutional jurisdiction of High Court---Scope---Qualification of candidate--Determination---Objection to the genuineness of the degree produced by the candidate was rejected by Returning Officer and the nomination papers were accepted---Petitioner instead of filing an appeal before Election Tribunal assailed the order of Returning Officer directly in Constitutional Petition---High Court, after having the necessary verification from the University concerned dismissed the petition--Contention of the petitioner was that the candidate did not possess the required qualification, he had dual nationality and had recently retired from service---Validity---Conclusion regarding the controversial question of fact relating to the genuineness or otherwise of the degree of the candidate was drawn in his favour in summary proceedings of scrutiny of nomination papers and further High Court having sought information from the concerned University tentatively satisfied itself about the correctness of the degree---High Court could not make any further probe into the matter in exercise of Constitutional jurisdiction---Disputed questions of facts relating to qualification of a returned candidate could conveniently be adjudicated in election petition- --Judgment passed by High Court was maintained by. Supreme Court---Leave to appeal was refused.
Ch. Nazir Ahmad and others v. Election Commission of Pakistan and others PLD 2002. SC 184; Election Commission of Pakistan through its Secretary v. Javid Hashmi and others PLD 1989 SC 396; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/ Returning Officer and others 1994 SCMR 1299 and Baqra v. Muhammad Yousaf and another PLD 1996 Lah. 149 ref.
Syed Ali Hassan Gillani, Advocate Supreme Court and Mehr Klan Malik, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 3-10-2002.
2004 S C M R 1605
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil-ur-Rahman Ramday, JJ
Ch. NAVEED MANZOOR---Petitioner
Versus
CHIEF ADMINISTRATOR, AUQAF and others---Respondents
Civil Petition for Leave to Appeal No 954-L of 2000 decided on 23rd April, 2003).
(On appeal from the order, dated 29-2-2000 passed by the Lahore High Court, Lahore in F.A.O. No. 10 of 2000).
Punjab Waqf Properties Ordinance (IV of 1979)-----
----Ss. 7(1), second proviso (as added by Punjab Waqf Properties (Amendment) Ordinance (XIII of 1984) & 11---Constitution of Pakistan (1973), Art. 185(3) & 270-A---Issuance of notification under S.7, Punjab Waqf Properties Ordinance, 1979---Petition to challenge notification was filed beyond 30 days of its publication--Plea of petitioner was that period prescribed by S.11 of the Ordinance. to challenge notification had not started running as same was not affixed on conspicuous part of property sought to be taken over---District Judge dismissed petition as time-barred, which judgment was upheld by High Court---Supreme Court granted leave to appeal to consider question, whether second proviso to S.7(1) of Punjab Waqf Ordinance. 197.9 was a valid existing law in terms of Art.270-A of the Constitution; and if so, what was the effect of such proviso on issue of limitation.
Mian Saeed-ur-Rahman Farrukh, Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for Petitioner.
M.A. Khadim, Advocate Supreme Court for Respondents.
Date of hearing: 23rd April, 2003.
2004 S C M R 1607
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal, Muhammad Nawaz Abbasi and Karmat Nazir Bhandari, JJ
MUHAMMAD IQBAL---Petitioner
Versus
Syed SOHAIL WAJID GILLANI---Respondent
Civil Petition No 346-P of 2002, decided on 8th October, 2002.
(On appeal from the judgment of Peshawar High Court, Peshawar, dated 5-7-2002 passed in F.A.O. No. 185 of 2001).
Cantonments Rent Restriction Act (XI of 1963)---
----S. 17---Constitution of Pakistan (1973), Art. 185(3) --- Ejectment of tenant---Bona fide personal need of landlord---Proof---Failure to mention nature of business by landlord intended to be started in shop in question---Rent Controller dismissed the ejectment petition but appeal by the landlord was allowed by High Court and eviction order was passed against tenant---Plea raised by tenant was that the landlord had failed to disclose the business which he intended to start in the premises--Effect---Landlord was not bound to mention the nature of business in the statement as he keeping in his financial position margin, of profit and chances of success might select any suitable business after obtaining possession of premises---In absence of choice of business, the bona fide personal need of landlord was not affected---High Court had properly attended the question relating-to the bona fide personal need of landlord in the light of evidence and had rightly allowed the appeal and the conclusion drawn on the question of fact was not suffering from the defect of misreading or non-reading of evidence---Supreme Court declined to interfere with the judgment passed by High Court---Leave to appeal was refused.
Juma Sher v. Sabz Ali 1997 SCMR 1062 ref.
Javed A. Khan, Advocate. Supreme Court and Zahoor Qureshi, Advocate-on-Record (absent) for Petitioner.
Abdul Aziz Kundi, Advocate Supreme Court for Respondent.
Date of hearing: 8th October, 2002.
2004 S C M R 1610
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Falak Sher, JJ
ABDUL RAUF---Petitioner
Versus
SANAULLAH anted others---Respondents
Civil Petition No. 1459-L of 2003, decided on 23rd December, 2003.
(On appeal from the judgment of the Lahore High Court. Lahore, dated 21-5-2003 passed in Civil Revision No. 836 of 2003).
Specific Relief Act (I of 1877)---
----S. 12---Civil Procedure Code (V of 1908), O. I, R. 10---Suit for specific performance of agreement to sell---Application under O. I, R.10. C.P:C, for impleading as party---Land purchased by applicant was falling in a Khewat, which had no nexus with Khewat of disputed land--Impugned judgment refusing such application did not suffer from any illegality---Supreme Court dismissed petition and refused leave to appeal.
Rafique Javed Butt, Advocate Supreme Court for Petitioner.
Respondent No. 1 in person.
Date of hearing: 23rd December, 2003.
2004 S C M R 1611
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan, Khalil-ur-Rahman Ramday and Falak Sher, JJ
MUHAMMAD SHAFI and others---Petitioners
Versus
MUHAMMAD BOOTA and others---Respondents
Civil Petition for Leave to Appeal No.2779/L of 2000, decided on 11th December, 2002.
(On appeal from the judgment, dated 27-10-2000 of the Lahore High Court, Lahore passed in Writ Petition No. 2440 of 1989).
(a) Civil Procedure Code (V of 1908)---
----S. 152---Constitution of Pakistan (1973), Art. 185(3)---Correction of clerical mistake---Administration of justice---Act of Court---Trial Court decreed the suit in favour of pre-emptor and against defendants but decree was passed against only one defendant ---Pre-emptor filed application under S.152, C.P.C. for correction of the decree as the same had been passed against all the defendants---Application was allowed by Trial Court and the decree was amended but Appellate Court set aside the order passed by Trial Court---High Court in exercise of Constitutional .jurisdiction restored the order passed by Trial Court---Validity---Supreme Court observed with concern that initially the suit was filed as far back as on 1-4-1974, more than a quarter of century ago and since then, the defendants had embroiled the pre-emptors in uncalled for litigation for no fault of them---Trial Court inadvertently omitted the names of other defendants and passed the decree only against one defendant---Judgment was passed respecting entire suit-land and preemptors were directed to pay the entire price as stated by vendee ---Act of Court should not prejudice any person and technical objections should not come in the way of dispensation of complete and substantial justice--Supreme Court declined to interfere with the judgment passed by High Court---Leave to appeal was refused.
Sajawal Khan v. Wali Muhammad and others 2002 SCMR 134; Chaudhary Ghulam Ghaus through Legal Heirs v. Saifullah and another 2001 SCMR 159; Imran Sharif and 7 others v. The State 2001 SCMR 424 and Nazir Ahmed and another v. Muhammad Din and another 2000 SCMR 440 ref.
(b) Administration of justice---
----Act of Court should not prejudice any person and technical objections should not come in the way of dispensation of complete and substantial justice.
Taki Ahmad Khan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 11th December, 2002.
2004 S C M R 1614
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Rana Bhagwandas, JJ
MUHAMMAD LATIF and another---Petitioners
Versus
MUHAMMAD AFZAL and others---Respondents
C.P. No.161/L of 2003 and C.A. No.96 of 1997, decided on 16th December, 2003.
(On appeal from the judgments, dated 7-11-2002 and 16-12-1996 of the Lahore High Court passed in R.S.A. No.36 of 2002 and C.R. No.2623 of 1996).
West Pakistan Urban Rent Restriction Ordinance (VI of 1959)-----
-----S. 17---Specific Relief Act (I of 1877), S.12---Execution of ejectment order---Suit filed by tenant for specific performance of agreement to sell demised property, pendency of---Effect---Landlord could not be deprived of fruits of ejectment order merely on account of pendency of such suit---Execution of ejectment order, which had become final, could not legally be objected to on such ground---If tenant ultimately succeeded in suit, then possession of property might be delivered to him in execution of decree as owner.
Syed Najam-ul-Hassan Kazmi, Advocate Supreme Court for Petitioner (in C. P. No. 161/L of 2003).
Gul Zarin Kiani, Advocatc Supreme Court for Respondent No. 1 (in C. P. No. 161/L of 2003).
Nemo for other Respondents.
Gul Zarin Kiani, Advocate Supreme Court for Appellant (in C.P. No.96 of 1997).
Syed Najam-ul-Hassan Kazmi, Advocate Supreme Court for Respondent No.1 (in C. P. No. 96 of 1997).
Other Respondents: Ex parte.
Date of hearing; 16th December, 2003.
2004 S C M R 1018
[Supreme Court of Pakistan]
Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ
SHAHID---Petitioner
Versus
THE STATE---Respondent
Criminal Petition No. 230-L of 2003, decided on 22nd May, 2003.
(On appeal from the judgment of the Lahore High Court, Lahore, dated 8-4-2003 passed in Criminal Miscellaneous No. 1626/B of 2003).
Criminal Procedure Code (V of 1898)-----
----S. 497---Penal Code (XLV of 1860), Ss.302, 148 & 149--Constitution of Pakistan (1973), Art.185(3)---Bail, refusal of---Besides the F.I.R., eye-witnesses in their statements under S.161, Cr.P.C. had implicated the accused as a principal accused of the offence---Deeper appreciation of the prosecution case was not ordinarily undertaken by the Supreme Court---Impugned order of High Court refusing bail to accused having been passed after perusal of the available material on record was neither arbitrary nor exceptionable---Leave to appeal was refused to accused by Supreme Court in circumstances.
Malik Saeed Hassan, Advocate Supreme Court for Petitioner.
Nemo for Respondent.
Date of hearing: 22nd May, 2003.
2004 S C M R 1619
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Sardar Muhammad Raza Khan, JJ
MANSOOR AHMAD SHEIKH‑‑‑Petitioner
Versus
A.I.‑G. DEVELOPMENT, PUNJAB, LAHORE and another‑‑‑Respondents
Civil Petition for Leave to Appeal No.756/L of 2000, decided on 6th July, 2004.
(On appeal from judgment, dated 4‑2‑2000, passed by the Punjab Service Tribunal, Lahore, in Appeal No.2192 of 1998).
Constitution of Pakistan (1973)‑‑‑
‑‑Art. 212(3)‑‑‑Dismissal from service‑‑‑Department had issued charge sheet and appointed Inquiry Officer but the petitioner did not reply to the charge sheet and even did not contest his case before the Inquiry Officer who had no other option but to proceed ex parte against him‑‑Allegations of the department, in the absence of any defence on record, were duly proved against the petitioner‑‑‑Contentions of the petitioner were not borne out from the record‑‑‑Service Tribunal with sound and cogent reasons had rightly dismissed the appeal of the petitioner‑‑‑No question of law of general public importance as contemplated under Art.212(3) of the Constitution was involved in the petition, which was dismissed by the Supreme Court.
Mian Mahmood Hussain, Advocate Supreme Court with Faiz‑ur-Rehman, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing: 6th July, 2004.
2004 S C M R 1622
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Iftikhar Muhammad Chaudhry and Rana Bhagwandas, JJ
Maulvi AZIZ-UR-REHMAN---Appellant
Versus
AHMAD KHAN and others---Respondents
C. A. No. 1400 of 1996, decided on 12th December, 2003.
(On appeal from the judgment, dated 12-6-1996 passed by the Peshawar High Court, Peshawar in R.F.A. No.89 of 1992).
(a) West Pakistan Civil Courts Ordinance (II of 1962)-----
----S. 18---Enhancement of pecuniary jurisdiction of District Judge during pendency of appeal before High Court---Effect---Decision of appeal by High Court- validity---High Court in such situation stood deprived of jurisdiction to hear appeal which should have been transmitted to. District Judge for disposal--Supreme Court set aside impugned judgment being without jurisdiction and appeal pending before High Court was ordered to be transmitted to District Judge-for disposal on merits.
Malik Gul Hassan & Co. and 5 others v. Allied Bank of Pakistan 1996 SCMR 237 fol.
(b) Jurisdiction-----
---- Jurisdiction not vesting in Court could not be conferred upon it merely by consent of parties or omission of any party to raise objection to such effect.
M. Sardar Khan Senior Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Appellant.
Qazi Muhammad Jamil Senior Advocate Supreme Court with Raja Abdul Ghafoor, Advocate-on-Record for Respondents.
Date of hearing: 12th December, 2003.
2004 S C M R 1624
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Sardar Muhammad Raza Khan, JJ
AHMED SHER and others---Petitioners
Versus
SIKANDAR HAYAT and others---Respondents
Civil Petition for Leave to Appeal No.747/L of 2003, decided on 5th July, 2004.
(On appeal from the judgment/order of the Lahore High Court Lahore, dated 25-2-2003. passed in Civil Revision No.941 of 1995).
(a) Islamic law---
----Gift---Donor (father of donee) having admitted in his life time about the gift in favour of his sons and had done all he could do to perfect the gift by placing the donees in a position to take possession of the suit land--Gift stood proved in favour of the sons of the donor in circumstances.
Saida v. Pinnu and another (sic) and Munawar Hussain Shah v. Mst. Bhora Bi PLD 1978 SC (AJ&K) 33 ref.
(b) Islamic law---
----Gift---Sons of the donor challenged the gift through suit during the life time of the donor, their father---Sons challenging the gift did not claim through the donor but against him---Sons, held, had no locus standi to file suit against the donor (their father) during his life time.
Muhammad Sarwar and 6 others v. Muhammad Iqbal and 2 others 1997 MLD 130 ref.
(c) Civil Procedure Code (V of 1908)-----
----S. 115---Constitution of Pakistan (1973), Art. 185(3)---Contention of the petitioner that the judgment of the High Court (in revision) was the result of misreading and non-reading of material on record was not borne on from the record---High Court, after considering the entire available evidence, had rightly allowed the revision setting, aside the judgment of the Appellate Court and restoring that of the Trial Court and impugned Judgment was entirely to consonance with settled law---Petition for leave to appeal against such judgment was dismissed.
M. Aftab Iqbal Chaudhree, Advocate Supreme Court and Ch. Muhammad Aslam Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing. 5th July, 2004.
2004 S C M R 1627
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J. Javed Iqbal and Abdul Hameed Dogar, JJ
ALI S. HABIB and others-----Petitioners
Versus
Dr. SHER AFGAN KHAN NIAZI and others---Respondents
Civil Petition No.2985 of 2003, decided on 15th January, 2004.
(On appeal from the order, dated 2-9-2003, of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in C.R. No.455 of 2003).
Civil Procedure Code (V of 1908)---
-----O. I, R.10(2)---Suit for damages against car manufacturing company and its Directors---Loss of life in road accident due to failure of SRS Airbag system fixed in the car---Directors of company claimed not to be personally responsible for failure of such system, thus, prayed for striking out their names from array of defendants---Trial Court dismissed such application, which judgment was upheld in revision by High Court---Validity---Concurrent findings of fact to the effect that applicants being Directors had a distinct liability in the matter than that of company itself, would not call for interference at such stage---Issues had been framed and Trial Court had yet to decide the matter after recording evidence--Matter being at preliminary stage, deletion of names of applicants from sets of defendants would not be appropriate---Supreme Court dismissed petition and refused leave to appeal.
Qadir H. Sayeed, Advocate Supreme Court with M.S. Khattak, Advocate-on-record for Petitioners.
Mushtaq Hussain, Advocate Supreme Court for Respondent No. 1.
Date of hearing: 15th January, 2004.
2004 S C M R 1630
[Supreme Court of Pakistan]
Present: Seed Deedar Hussain Shah and Sardar Muhammad Raza Khan, JJ
HAJI AHMED and others---Petitioners
Versus
NOOR MUHAMMAD ---Respondent
Civil Petition for Leave to Appeal No. 1321/L of 2003, decided on 6th July, 2004.
(Oil appeal from judgment, dated 10-4-2003, passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur, in Civil Revision No.357-D of 1992/BWP)
Civil Procedure Code (V of 1908)----
----S. 115---Constitution of Pakistan (1973), Art. 185(3)---Revision--Dismissed as time-barred---Intentional delay on the part of the petitioners to approaching the High Court for relief---High Court, after carefully examining/analyzing the record found the revision petition to be hopelessly time-barred and on the point of limitation, revision was dismissed---Judgment of the High Court being entirely in consonance with the law, did not call for any interference by the Supreme Court--Petition for leave to appeal was dismissed.
Rana Maqbool Ahmed Khan, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.
Nemo for Respondent.
Date of hearing: 6th July, 2004.
2004 S C M R 1632
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J. Javed Iqbal and Abdul Hameed Dogar, JJ
MUHAMMAD JEHANGIR BADAR---Petitioner
Versus
CHAIRMAN, N.A.B. and others---Respondents
Civil Petition No.3247/L of 2003, decided on 15th January, 2004.
(On appeal from the order, dated 18-12-2003 of the Lahore High Court, Lahore passed in Writ Petition No. 17412 of 2003).
(a) National Accountability Ordinance (XVIII of 1999)---
----Ss. 9 & 10---Parliament and Provincial Assemblies (Disqualification for Membership) Order, 1977 (P.O. No. 17), Art.4---Criminal Procedure Code (V of 1898), Ss.227 & 403---Constitution of Pakistan (1973), Arts.13 & 185(3)---Reference under Art.4(2) of Parliament and Provincial Assemblies (Disqualification for Membership) Order, 1977--No evidence was recorded and no trial was conducted qua such reference, which Was returned under Art.4(3)(a), Parliament and Provincial Assemblies (Disqualification for Membership) Order, 1977 for want of sufficient material to establish allegation---Commencement of trial for same offence before Accountability Court---Validity---Proceedings qua reference under Art.4(2) of Order, 1977 could not be equated to that of "criminal trial "---Provisions of Art.13 of the Constitution and S.403, Cr.P.C., would not be attracted to such order passed under Art.4(3)(a) of Order, 1977 as same was neither acquittal nor discharge---Question of double ,jeopardy would not arise as petitioner had never been tried by any Court or judicial Tribunal on charges framed by Accountability Court---No prejudice was caused to petitioner, who would have opportunity to approach higher forums available in the hierarchy, in case of any grievance against judgment of Accountability Court---Filing of petition after two, years of framing of charge demonstrated propensity to prolong matter---Supreme Court dismissed petition and refused leave to appeal.
Abdul Hossain Sana v. Suwala, Agarwala PLD 1962 SC 242 ref.
(b) Criminal Procedure Code (V of 1898)---
----S. 403---Constitution of Pakistan (1973), Art. 13---Provisions of S.403, Cr.P.C. and Art.13(a) of the Constitution ---Distinction--Expression "Same offence"---Meaning---Test to determine "same offence" in relation to trial of former offence and offence subsequently charged---.Not only facts relied on by prosecution should be same at both such trials, but facts constituting former offence should be sufficient to justify conviction for offence subsequently charged---Previous prosecution must be before a Court having' jurisdiction to try both former offence as well as offence for which accused was subsequently prosecuted, otherwise there could not be a valid prosecution---Principles.
The provisions as contained in section 403, Cr.P.C. are not substantially different from the provisions contained in Article 13(a) of the Constitution. Subsection (1) of section 403, Cr.P.C., not only bars a subsequent trial of a person, who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted for the same offence, but further bars his trial on the same facts for any other offence for which a different charge from the one made against him might have been framed under, section 236 or for which he might have been convicted under section 237. An extended meaning has been given to "same offence" by including within its folds other offences for which, on the same facts, a charge under section 236 might have been framed or a conviction may have been recorded under section 237. The bar in the Constitution, however, is against prosecution or punishment for the same offence for which a person has been previously tried or convicted. No extended meaning of "same offence" as in section 403, Cr.P.C. can be given to the expression as used in the Constitution. The test for the "same offence" is, whether the former offence and the offence subsequently charge have the same ingredients in the sense that the facts constituting the one are sufficient to justify the conviction of the other, not that the facts relied on by the prosecution are the same at the two trials. Further the previous prosecution must be before a Court, which had jurisdiction to try both the first offence alleged as well as the offence for which the accused is being subsequently prosecuted. There cannot be a valid prosecution before a Court, if the Court had no jurisdiction to try the offence for which the accused is being subsequently tried.
Hoot Khan v. National Industrial Relations Commission PLD 1977 Kar. 145 fol.
(c) Constitution of Pakistan (1973)-----
----Art. 13---Word "prosecution" as used in Art. 13 of the Constitution--Meaning---Such word would mean initiation or starting of prosecution of criminal nature before a Court of law or judicial forum in accordance with procedure prescribed in the statute, which created offence and regulated Procedure.
Sheikh Zia Ullah, Senior Advocate Supreme Court, Muhammad Akram Sheikh. Senior Advocate Supreme Court and Haji Muhammad Rafi Siddiqui, Advocate-on-Record (absent) for Petitioner.
M. Jaffar Hashmi, Advocate Supreme Court for Respondents.
Date of hearing: 15th January. 2004.
2004 S C M R 1638
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah, and Sardar Muhammad Raza Khan, JJ
Syed QADIR BAKHSH SHAH and others---Petitioners
Versus
ADDITIONAL DISTRICT JUDGE, DERA GHAZI KHAN and others---Respondents
Civil Petition No. 1452/L of 2003, decided on 6th July, 2004.
(On appeal from the judgment dated 1-4-2003 passed by the Lahore High Court, Multan Bench, Multan in Writ Petition No. 1708 of 1992).
Civil Procedure Code (V of 1908)---
----S. 96---Appeal---Scope---Only those orders and judgments are, appealable under S.96, C.P.C. where the lower Court happened to exercise original jurisdiction---Question of appeal under S. 96, C.P.C. was referable to the nature of jurisdiction exercised and not to the nature of order passed.
Islam Ali Qureshi Advocate-on-Record for Petitioners.
Mehfooz-ul-Haq Khan, Advocate Supreme Court with M.A. Qureshi, Advocate-on-Record for Respondents Nos.2-20.
Date of hearing; 6th July, 2004.
2004 S C M R 1640
[Supreme Court of Pakistan]
Present: Munir A. Sheikh. Iftikhar Muhammad Chaudhry and Rana Bhagwandas, JJ
MUHAMMAD SALEEM and others --- Appellants
Versus
SARDAR ALI and others---Respondents
Civil Appeals Nos.1803 and 1804 of 1998 decided on 21st November 2003.
(On appeal from the judgment dated 4-6-1998 of the Lahore High Court passed in 957 and 958-D of 1998).
(a) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)-----
----S. 25---West Pakistan Land Revenue Act (XVII of 1967), S.42--Civil Procedure Code (V of 1908), S.9---Evacuee land---Sanction of inheritance mutation of deceased right-holder under Settlement Laws--Petitioner challenged such order in Revenue hierarchy, but failed---Suit filed against such orders was dismissed by Courts below concurrently--Validity ---Question of inheritance of deceased right-holder would be decided under relevant paragraphs of Settlement Scheme being a matter within exclusive jurisdiction of Settlement Authority---Jurisdiction of Civil Court in such matter was barred---No revision against such order of Rehabilitation Authorities would be maintainable before Board of Revenue---Board of Revenue had jurisdiction to entertain revision petition against orders of Revenue Officers passed under West Pakistan Land Revenue Act, 1967 in respect of mutation of inheritance of land other than evacuee land---Revision petition filed before Board of Revenue was not maintainable under Settlement Laws---Such orders of Settlement Authorities for not having been challenged before proper forum had attained finality and became past and closed transaction, which could not be allowed to be re-opened---Courts below had rightly dismissed suit by not interfering with such orders of Settlement Authorities---Supreme Court dismissed petition and refused leave to appeal.
Ahmad Din v. Muhammad Shafi and others PLD 1971 SC 762 rel.
(b) Administration of justice---
---- Duty of tile Court is to apply the law, which is applicable to the facts admitted or established/proved on record, as the parties are riot bound to engage a counsel.
Haji Ahdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690 fol.
Ch. Muhammad Anwar Bhinder, Advocate Supreme Court for Appellants.
Muhammad Munir Peracha, Advocate Supreme Court for Respondents.
Date of hearing; 21st November, 2003.
2004 S C M R 1645
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ
MUHAMMAD ARSHAD---Petitioner
Versus
THE STATE---Respondent
Criminal Petition for Leave to Appeal No.284/L of 2002, decided on 13th July, 2004.
(On appeal from judgment, dated 28-3-2002, passed by the Lahore High Court, Lahore in Criminal Appeal No.819 of 1996).
Penal Code (XLV of 1860)-----
---S. 302---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Prosecution witness had furnished handsome explanation for being available at the place of occurrence, as according to him he and another witness had been called by the deceased---Nothing was doubtful as to the presence of both the witnesses at the time of occurrence---Said witnesses had described the event with much exactitude which could be possible only when they had perceived everything through their senses--Witnesses had assigned fatal shots to the accused and in spite of the fact that said witnesses were subjected to a very lengthy cross-examination, defence had failed to break their testimony, which remained unshaken-Complainant was real brother of the deceased and was not expected to substitute an innocent person for the real offender, because he could never tolerate that the actual killer of his brother should escape punishment---Motive part of the occurrence had been rightly believed by the Trial Court and the High Court---Recovery of motorcycle of the deceased from possession of the accused was of great significance--Accused, had immediately picked motorcycle of the deceased from the spot , when he (deceased) fell on the ground after sustaining injuries and decamped from the spot on motorcycle and as to how the accused came to have that motorcycle had not been effectively explained by him--Recovery of motorcycle was by all means sufficient to link the accused with the commission of crime in question---Medical evidence was in consonance with the ocular account in all respects---Crime empties were found wedded with the pistol recovered from the accused---Mode of recovery of empties from the house of the accused had made the said piece of evidence somewhat doubtful which was rightly disbelieved by the Trial Court and High Court---No misreading and non-reading of the material evidence and the impugned judgment, had been found which could call for any interference by the Supreme Court---Judgment of the High Court was in consonance with the law which was not open to any exception---Petition for leave to appeal against judgment of the High Court was dismissed.
Tanvir Ahmad, Advocate-on-Record for Petitioner.
Syed Muhammad Iftikhar Shah, Advocate Supreme Court and Ch. Muhammad Hanif Zahid, Advocate-on-Record for the Complainant.
Date of hearing: 13th July, 2004.
2004 S C M R 1649
[Supreme Court of Pakistan]
Present: Hamid Ali Mirza and Faqir Muhammad Khokhar, JJ, PROVINCE OF THE PUNJAB through Secretary, Government of the Punjab Excise and Taxation Department and others---Appellants
Versus
MUHAMMAD ASLAM and others---Respondents
Civil Appeals Nos. 1785 to 1795 of 2001, decided on 10th December, 2003.
(On appeal from judgments, of the Lahore High Court, Lahore dated 29-3-2000, passed in Writ Petitions Nos. 11273 of 1999; 12257 of 1999 and 12596 of 1999 and dated 13-10-2000 passed in Writ Petitions Nos.8885, 6164, 5056, 8416, 6874, 8319, 8917 and 16537 of 2000).
(a) West Pakistan Immovable Property Tax Act (V of 1958)-----
----Ss. 2(i)(g) & 3---Lahore Development Authority Act (XXX of 1975), Ss.4, 18 & 27---Punjab Development of Cities Act (XIX of 1976), S.4--Notification declaring urban areas, excluding agricultural land, located outside limits of Municipal Corporation, but within boundaries of controlled areas of Lahore Development Authority and Faisalabad Development Authority as Pocket Rating Areas for purpose of levy of tax---Validity---Government for such purpose could specify by notification rating area within limits of existing urban areas---West Pakistan Immovable Property Tax Act, 1958 did not empower Government to declare any area other than an urban area to be a rating area within meaning of S.2(g) thereof---Impugned notifications were not valid---Principles.
Admittedly the areas for which the property tax was sought to be levied by Notification dated 28-9-1998 and 1-12-1998 were located outside the territorial limits of Faisalabad Municipal Corporation or Lahore Metropolitan Corporation being rural areas of Faisalabad and Lahore Districts. Under the provisions of section 3(1) of the Act, 1958, The Government may specify by notification rating area within the limits of an existing urban area for which the property tax shall be levied. However, the Act of 1958 does not empower the Government to declare any area other than an urban area to be a rating area within the meaning of section 2(8) (ibid). The word "Urban Area" is defined by section 2(0 of the Act of 1958, to be an area within the boundaries of a Municipal Corporation, Municipal Committee, Cantonment Board, Small Town Committee or other authorities, legally entitled to or entrusted by the Government with the control or management of a Municipal or local fund. Properties in dispute were not located within the territorial limits of Faisalabad Development Authority established by the Government under the provisions of section 4 of Punjab Development of Cities Act, 1976 or Lahore Development Authority constituted by the Legislature by section 4 of Act, 1975.
The word "Area" has been defined in section 3(b) of Act, 1975 as the Lahore Metropolitan area. Similarly section 18 of Act, 1975 empowers Lahore Development Authority to declare any locality within the "Area" to be a controlled area for the purposes of the said Act and may issue in respect of such localities such directions as it considers fit and proper and do all such things as may be necessary for the prevention of haphazard growth, encroachment and unauthorized constructions in such area. The position of Faisalabad Development Authority is also the same. Controlled area is necessarily to fall within the limits of Lahore or as the case may be, Faisalabad Development Authority. The operation of the provisions of Act of 1958.for the purpose of assessment and levy of property tax is limited only to the urban areas.
Judgment of High Court accepting the Constitutional petitions wherein the validity of such notifications were challenged, was upheld by Supreme Court in circumstances.
Mian Ahmed Saeed and others v. Election Tribunal for Kasur and 7 others 2003 SCMR 1611 ref.
(b) West Pakistan Immovable Property Tax Act (V of 1958)-----
----Preamble---Interpretation---West Pakistan Immovable Property Tax Act, 1958 being a fiscal statute would require to be construed strictly---No intendment or presumption about a tax---Courts had to go by language clearly employed by Legislature in a fiscal statute.
Messrs Star Textile Ltd. and 5 others v. Government of Sindh through Secretary, Excise and Taxation Department, Sindh Secretariat, Karachi and 3 others 2002 SCMR 356; Collector of Customs (Preventive) v. Muhammad Mahfooz PLD 1991 SC 630; Tennant v. Smith (1892) A.C. 150 (at 154); Dewer v. I.R.C. (1935) 2 K.B. 351 (360) and Attorney-General v. Milne (1914) A.C. 765 (781) ref.
Ms. Afshan Ghazanfar, A.A.-G. for Appellants.
Zahid Abbasi, Advocate Supreme Court for Respondents (in C. A. No. 1789 of 2001).
Manzoor Hussain Butt, Advocate Supreme Court for Respondents (in C.As. Nos.1790 and 1792 of 2001).
Date of hearing: 10th December, 2003.
2004 S C M R 1654
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Falak Sher, JJ
MUHAMMAD YOUSAF BUTT---Appellant
Versus
CENTRAL BOARD OF REVENUE and another---Respondents
Civil Appeal No.2587 of 2001, decided on 9th June, 2004.
(On appeal from the judgment dated 19-9-2001 passed by the Federal Service Tribunal in Appeal No.206(K)(CS/2000).
Constitution of Pakistan (1973)--
----Art. 212---ESTACODE, Ch. No. X, Serial No. 7---Civil servant had sought premature retirement upon completion of 25 years of qualifying service for health reasons which request was eventually accepted by notification dated 30-3-2000---Civil servant, subsequently acclaimed to have withdrawn the option through letter dated 29-3-2000 addressed to the Competent Authority, alleged to have been received the same day i.e. a day prior to the acceptance notification, seeking recalling of the notification of his premature retirement, which request was turned down---Validity---Civil servant though had a right to withdraw the option before its acceptance but not thereafter since the same had attained finality being a past and closed transaction, pursuant whereto he admittedly had received all the pensionary benefits.
M.M. Aqil Awan, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioner.
Nahida Mehboob Elahi (Standing Counsel) for Respondents Nos. 1-2.
Date of hearing: 9th June, 2004.
2004 S C M R 1660
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Hamid Ali Mina, JJ
Messrs DAWOOD COTTON MILLS LTD. ---Petitioner
Versus
K.F. DEVELOPMENT CORPORATION LTD. ---Respondent
Civil Petition No.229/K of 2003, decided on 9th February, 2004.
Arbitration Act (X of 1940)---
----Ss. 14 & 29---Constitution of Pakistan (1973), Art.185(3)---Interest on award--Award made rule of Court by awarding mark-up on decretal amount before date of decree---Award was not challenged in appeal--Objection to award was raised in execution proceedings that under S.29 of Arbitration Act, 1940, Court was not competent to award mark-up for such period---Executing Court overruled such objection, where against High Court appeal was dismissed---Supreme Court granted leave to appeal to consider question, whether Court was legally justified in awarding mark-up on decretal amount from a date prior to date of decree; and whether petitioner having not challenged decree could raise such objection before Executing Court?
Abrar Hassan, Advocate Supreme Court and N.C. Motiani, Advocate-on-Record for Petitioner.
M.G. Dastagir, Advocate Supreme Court and Raja Sher Muhammad Khan, Advocate-on-Record for Respondent.
Date of hearing: 9th February, 2004.
2004 S C M R 1662
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J. and Abdul Hameed Dogar, J
FEDERATION OF PAKISTAN through Secretary, Establishment Division, Islamabad and another---Petitioners
Versus
GOHAR RIAZ---Respondent
Civil Petition No. 1915 of 2002, decided on 17th June, 2004.
(On appeal from the judgment, dated 9-9-2002 of the Federal Service Tribunal, Islamabad in Appeal No.4(R)/CS/02).
Civil Servants Act (LXXI of 1973)---
----S. 6(1)(2)---Removal From Service (Special Powers) Ordinance (XVII of 2000), S. 3 [as amended]---Constitution of Pakistan (1973), Art.212(3)---Removal from service of employee on ground of misconduct and exercising political influence to get himself employed in the department- --Only a show-cause notice was issued against the employee under Removal From Service (Special Powers) Ordinance, 2000 and no full-fledged enquiry as contemplated under S. 5 of the said Ordinance was conducted---Appointee in the present case was put on probation for two years,--Only a person appointed by initial appointment, promotion or transfer could be placed on probation and appointment on ad hoc basis had been expressly excluded---Fact that the person was appointed and was placed on probation for a period of two years clearly established the regular nature of his initial) appointment--Circular of seniority list issued by the department after show-cause notice to the employee further fortified his claim that he was a permanent employee as seniority list was prepared only in the cases of regular or permanent employees-- -Contention of employer department that initial appointment of civil servant was made in violation of rules by asserting political pressure was without any substance as department had not been able to establish on record that the employee lacked requisite qualification and was not appointed by the competent authority--Employee could not be punished for any act or omission of the department---Department could not be allowed to take benefit of its lapses in order to terminate the service of employee merely because department had itself committed irregularity by violating the procedure governing the appointment---While awarding major penalty, a proper enquiry was to be conducted in accordance with law where full opportunity of defence was to be provided to the delinquent employee--Provision of S. 5 of Removal From Service (Special Powers) Ordinance, 2000 clearly stipulated that in case of charge of misconduct as defined in S. 3 of the said Ordinance, a full-fledged inquiry was to be conducted which admittedly had not been done in the present case---Petition for leave to appeal was dismissed.
Secretary to Government of N.-W.F.P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan 1996 SCMR 413; Water and Power Development Authority through Chairman, WAPDA House, Lahore v. Abbas Ali Malano and another 2004 SCMR 630 and Pakistan International Airlines Corporation through Managing Director, PIAC, Head Office, Karachi Airport, Karachi v. Ms. Shaista Naheed 2004 SCMR 316 ref.
Ms. Nahida Mahboob Elahi, Advocate Supreme Court Standing Counsel and Ch. Akhtar Ali, Advocate-on-Record for Petitioners.
Hafiz S.A. Rehman, Senior Advocate Supreme Court, Sh. Riazul Haq, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondent.
Date of hearing: 17th June, 2004.
2004 S C M R 1668
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ
HABIB KHAN and others---Petitioners
Versus
Mst. BAKHTMINA and others---Respondents
Civil Petition No.482 of 2003, decided on 9th January, 2004.
(On appeal from the judgment, dated 16-12-2002 of the Peshawar High Court, Peshawar, passed in C.R. No.267/94).
(a) Adverse possession-----
----Claim of---Essentials---Adverse possession must be actual, exclusive, visibly hostile and continuous for, statutory period without any legal origin---Act of possession exercised at interval over different portions of land in different years would not amount to adverse possession.
(b) Adverse possession---
---- Adverse possession being question of law and fact cannot be agitated for the first time before Supreme Court.
(c) Adverse possession---
---- Claim of---Proof---Persons claiming title of adverse possession must prove same by leading forthright and concrete evidence ---Mere cultivation of land to utilize its usufruct would not be proof of ownership.
Ghulam Hussain v. Iqbal Ahmad PLD 1991 SC 290; Shafaullah v. Saifur Rehman PLD 1991 SC 1106 and Bashir Ahmad v. Mushtaq Ahmed 1982 SCMR 663 rel.
(d) Adverse possession---
---- Permissive possession would not be synonymous or interchangeable to that of adverse possession---Both permissive and adverse possession were destructive of each, other being irreconcilable pleas---Ownership could not be claimed simultaneously on basis of adverse possession as well as that of permissive possession.
(e) Civil Procedure Code (V of 1908)----
----S. 115---Concurrent findings of facts---Validity---Such findings could not be termed as "sacrosanct" and could be reversed by High Court in revisional jurisdiction, if same were based on insufficient evidence, misreading of evidence, non-consideration of material piece of evidence, erroneous assumption of facts and patent error of law.
Concurrent findings of facts of the Courts below cannot be reversed in exercise of revisional jurisdiction as conferred upon the High Court under section 115, C.P.C. but it should not be ignored that such concurrent findings cannot be termed as "sacrosanct" and can be reversed, if the same are based on insufficient evidence, misreading of evidence, non-consideration of material piece of evidence, erroneous assumption of facts and patent error of law. Contention of petitioner in the present case that concurrent findings must be kept intact irrespective of the fact whether the same are erroneous or otherwise, was not correct.
Mst. Ghulam Janat v. Ghulam Janat 2003 SCMR 362; Zarshad v. Shah Gul PLD 2003 SC 650; Muhammad Akhtar v. Mst. Manna 2001 SCMR 1700; Samar Gul v. Mohabat Khan 200, SCMR 974; Anwar Zaman v. Bahadur Sher 2000 SCMR 431; Abdul Hakeem v. Habibullah 1997 SCMR 1139 and Fazal Muhammad Bhatti v. Saeeda Akhtar 1993 SCMR 2018 ref.
Raja Muhammad Ibrahim Satti, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record (absent) for Petitioners.
Nemo for Respondents.
Date of hearing: 9th January, 2004.
2004 S C M R 1673
[Supreme Court Pakistan]
Present: Nazim Hussain Siddiqui, C.J. and Abdul Hameed Dogar, J
Dr. MUBASHAR AHMED ---Petitioner
Versus
P.T.C.L. through its Chairman, Islamabad and another--Respondents
Civil Petition No. 1944 of 2002 decided on 18th June, 2004.
(On appeal from the judgment dated 12-9-2002 of the Federal Service Tribunal, Islamabad in Appeal No.788(R)/CS/2000).
(a) Civil service---
---- Employee appointed/engaged on contract/part time basis has got no vested right to claim for being absorbed/appointed on regular/permanent basis.
(b) Civil service---
---- Right to employ an employee vests with the employer only and employee cannot claim the vested right to be appointed.
(c) Civil service---
----Appointment---Allegation of discrimination---Plea of discrimination cannot be raised in absence of the party against whom discrimination was claimed.
Shahid M. Akhtar v. Water and Power Development Authority through its Chairman and another 1994 SCMR 1275 ref.
(d) Constitution of Pakistan (1973)-----
----Art. 212(3)---Petition for leave to appeal---No substantial question of law of public importance being involved in the case warranting grant of leave under Art. 212(3) of the Constitution, petition being devoid of merit was dismissed.
Ch. Sadiq Muhammad Warraich, Advocate Supreme Court for Petitioner.
Nemo for Respondents.
Date of hearing: 18th June, 2004.
2004 S C M R 1676
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, C.J., Qazi Muhammad Farooq and Mian Muhammad Ajmal, JJ
FEDERAL GOVERNMENT MINISTRY OF DEFENCE---Appellant
Versus
Sepoy LIAQAT ALI ---Respondent
C.A. No.662 of 2002. heard on 27th November, 2002.
(a) Penal Code (XLV of 1860)---
----S. 302---Sentence---Motive---Lack of motive or weakness thereof is immaterial to withhold the normal penalty of death in murder cases.
(b) Penal Code (XLV of 1860)---
----S. 302(b)---Constitution of Pakistan (1973), Arts.185(3) & 199(3)--Accused at the relevant time being on duty in his unit and as member of the Armed Forces of Pakistan was completely amenable to Pakistan Army Act and jurisdiction of High Court by virtue of Art. 199(3) of the Constitution was barred with regard to the conviction and sentence passed upon him by the Field General Court Martial---Trustworthy evidence had squarely brought home the guilt against the accused beyond any doubt---Murder was a brutal and gruesome one which was committed in a broad-daylight and that too inside the Unit of the Army---Death sentence, thus, was proportionate to the gravity of the offence--Impugned order of High Court commuting the death sentence of accused to imprisonment for life was consequently set aside and the order of the Field Court General Martial awarding death sentence to accused was restored.
Machhi Singh and others v. State of Punjab AIR 1983 SC 957 and Bachan Singh v. State of Punjab AIR 1980 SC 898 ref.
Muhammad Akram, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent.
Date of hearing: 27th November, 2002.
2004 S C M R 1679
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, C.J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ
COLONY TEXTILE MILLS LTD., MULTAN through, Factory Manager---Petitioner
Versus
CHIEF EXECUTIVE, MULTAN ELECTRICITY POWER COMPANY LTD. (MEPCO), MULTAN and 2 others---Respondents
Civil Petition No. 1278 of 2002, decided on 11th December, 2002.
(On appeal from the judgment of Lahore High Court, Multan Bench, dated 10-7-2002 passed in I.C.A No. 83 of 2002).
(a) Electricity Act (IX of 1910)-----
----Ss. 26(6) & 26-A---Electric Inspector---Jurisdiction---Dishonest obstruction of energy---Powers of licensee---Scope---Jurisdiction of Electric Inspector is confined to disputes relating to matters falling under S.26(6) of Electricity Act, 1910---Matter relating to charges on account of dishonest obstruction of energy is not referable to Electric Inspector---If matter relates to correctness of meter, maximum demand indicator, or other measuring apparatus, the dispute for consumption of electricity is referable to Electric Inspector--In case of dishonest obstruction and consumption of energy, the licensee under S.26-A of Electricity Act, 1910, may charge consumer on the basis of consideration mentioned therein---Scope of provision of S.26(6) of Electricity Act, 1910, is confined to the cases in which due to technical fault or defect the meter is not in order and is not registering energy Correctly---If consumer dishonestly obstructs and consumes the electricity through illegal device and meter equipment is not involved, ,the provisions of S.26(6) of Electricity Act, 1910, are not attracted as licensee can assess the consumption under. S.26-A of Electricity Act, 1910.
(b) Electricity Act (IX of 1910)-----
----S. 26-A---Detection bill---Remedy---Dispute relating to detection bill for dishonest obstruction through illegal method is not adjudicatable by Electric Inspector---Consumer may invoke jurisdiction of Civil Court.
(c) Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---
----S. 38---Electricity Act (IX of 1910), Ss. 26(6) & 26-A---Constitution of Pakistan (1973), Art, 185(3)---Inspection Office and Electric Inspector---Powers---Electricity theft---Issuance of detection bill--Jurisdiction of licensee---Consumer was issued detection bill for illegal consumption of electricity---Plea raised by the consumer was that the licensee was not empowered to issue such bill and the matter was to be decided by Inspection Office as established under S.38 of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997---Inspection Office was empowered, under S.38 of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, to enforce compliance with distribution companies regarding instructions in respect of metering, billing, electricity consumption charges and collection of tariff under S.26 of Electricity Act, 1910---There being no mention in S.38 of Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, of the charges of energy consumed or used through dishonest obstruction by altering or preventing from registering the amount of energy supplied, the licensee could competently assess the consumption of electricity---Provisions of S.26 of Electricity Act, 1910 were not controlled by S.38 of Registration of Generation, Transmission and Distribution of Electric Power Act, 1997, the same would operate independently and the licensee could assess the charge for consumption of electricity without intervention of Electric Inspector or Inspection Office---Supreme Court declined to go into the question whether evaluation of electricity consumption and assessment of bill was made on the basis of consideration mentioned in S.26-A of Electricity Act, 1910, or not---Such issue was to be resolved independently and independent inquiry would be necessary---Matter was remanded to, the Chairman Water and Power Development Authority with direction to constitute a committee consisting of independent engineers of relevant field for assessment of charges by evaluating the electricity consumed in the light of consideration mentioned in S.26-A of Electricity Act, 1910---Petition for leave to appeal was converted in appeal and the same was allowed.
Malik Muhammad Qayyum, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 25th July, 2002.
2004 S C M R 1690
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ
PAHNA and others---Petitioners
Versus
MEMBER (CONSOLIDATION) BOARD OF REVENUE, PUNJAB and others---Respondents
Civil Petition No. 822-L of 2000, decided on 21st April, 2003.
(On appeal from the judgment of the Lahore High Court, Lahore, dated 7-2-2000 passed in Writ Petition No. 2789 of 1980).
West Pakistan Consolidation of Holdings Ordinance (VI of 1960)-----
----S. 10---Constitution of Pakistan (1973), Art.185(3)--- Consolidation scheme---Objection---Previous possession of the parties---Land of petitioner had been consolidated at two places---Bigger plot was at the place where the petitioner held major portion of his land before consolidation proceedings---Plea raised by, the petitioner was that the previous possession of the parties had not been taken into consideration by the authorities while effecting consolidation---Validity---Petitioner was benefited from the consolidation and there was no shortage in his entitlement, instead there was an excess of 12 Marla in terms of class 1---High Court in exercise of Constitutional jurisdiction had rightly declined the request of the petitioner regarding allotment of land of his own choice--- Question of fact was determined by the Revenue Authorities and no illegality had been committed by the Judge in Chambers of high Court---Leave to appeal was refused.
Muhammad Badar-ul-Munir v. Chairman, Arbitration Council and 2 others 1989 SCMR 1097 and Allah Rehman and others v Amtul Qayyum and another 1989 SCMR 1817 ref.
Sh. Salah-ud-Din, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 21st April, 2003.
2004 S C M R 1693
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Muhammad Nawaz Abbasi, JJ
RAJA KHAN---Appellant
Versus
PATHANA and 10 others---Respondents
Civil Appeal No. 1919 of 1998, decided on 25th November, 2002.
(On appeal from the Judgment of Lahore High Court, dated 2-7-1998 passed in Civil Revision No. 1330-D of 1984).
(a) Punjab Pre-emption Act (I of 1913)---
----Ss. 4 & 21---Constitution of Pakistan (1973), Art: 185(3)---Right of pre-emption, exercise of---Proof of relationship---Contention of vendee/petitioner was that the pedigree table produced at trial as well as another pedigree produced at appellate stage which had not been formerly admitted into evidence could not have been relied upon as both the, documents failed to establish the claimed relationship and as such the Courts below had erred in decreeing the suit in respect of other vendors as well---Validity---Leave to appeal was granted by Supreme Court to consider the question raised by the petitioner.
(b) Punjab Pre-emption Act (I of 1913)---
----Ss. 4 & 21---Superior right of pre-emption ---Plea of being Yakjaddi---Proof---Oral evidence---Failure to challenge relationship of vendors and pre-emptors inter se---Trial Court decreed the suit in favour of pre-emptor and the judgment and decree was maintained by Appellate Court as well as by High Court--Plea raised by the vendee was that oral evidence was not sufficient to establish the relationship to claim superior right of pre-emption ---Validity---Vendee had neither denied relationship of vendors and plaintiff inter se' in written statement nor challenged the statement of witness in cross-examination nor brought any evidence in rebuttal ---Vendee had admitted the relationship of vendors and preemptors inter se as Yakjaddi---Superior right of pre-emption could be established through oral evidence without pedigree tables ---Vendee failed to point out any misreading or non-reading of evidence---Supreme Court declined to interfere with the concurrent judgments passed by the Courts below---Appeal was dismissed.
Khan Khizar Abbas Khan, Advocate Supreme Court and Ch. Mehdi Khan, Advocate-on-Record (absent) for Appellant.
Ch. Mushtaq Masood, Advocate Supreme Court and Sh. Masood Akhtar, Advocate-on-Record for Respondents.
Date of hearing: 25th November, 2002.
2004 S C M R 1696
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Rana Bhagwandas, JJ
ABDUL HANAN alias ABDUL MANAN---Appellant
Versus
Haji MUHAMMAD AKRAM PERACHA and others---Respondents
Civil Appeals Nos.1563 and 1564 of 1998, decided on 18th December, 2003.
(On appeal from the judgment, dated 16-6-1997 and 31-10-1997 of the High Court of Balochistan Quetta passed in Civil Revision No.273 of 1996 and Civil Revision No. 147 of 1995).
Specific Relief Act (I of 1877)---
---S. 42---Constitution of Pakistan (1973), Art.185(3)---Declaration of title---Evacuee property---Common passage---Settlement authorities allotted the evacuee property to different persons having a common passageLand of the passage was not transferred to any person and the same remained un disposed of to be used as such---Suit filed by respondents was dismissed by the Trial Court and judgment and decree passed by, the Trial Court was maintained by Appellate Court---High Court in exercise of revisional jurisdiction set aside the judgments and decrees passed by the two Courts below and decreed the suit---Validity---Matter was earlier decided by Board of Revenue declaring the passage as common among the allottees of the different portions of the property- Finding of Board of Revenue was upheld by Supreme Court---Present was not a case in which the question of easement right over the passage of any of the parties was involved or could be claimed---Property-, in question was owned by one evacuee owner and having found the same to be divisible, the Settlement authorities by carving out different portion, transferred the property to different persons which had a passage with gate towards main road---Passage was left un-disposed of to be used as such, therefore, none of the parties could claim exclusive use of the same to the exclusion of the other---Plaintiffs could not be restrained from opening their windows and doors towards the passage---Suit was wrongly dismissed by the Trial Court as ,the claim made by the defendant amounted to indirectly claiming ownership of the passage as part of portion transferred to him---Judgment arid decree passed by High Court did not warrant any interference by Supreme Court---Appeal was dismissed.
Raja Muhammad Ibrahim Satti, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate-on-Record for Appellant.
Tariq Mahmood, Advocate Supreme Court for Respondents.
Date of hearing: 18th December, 2003.
2004 S C M R 1701
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Sardar Muhammad Raza Khan, JJ
RIAZ ULLAH KHAN---Petitioner
Versus
ASGHAR ALI and 2 others---Respondents
Civil Petition for Leave to Appeal No. 1893/L of 2002, decided on 17th June, 2002.
(On appeal from the judgment, dated 6-5-2002 of the 'Lahore High Court Lahore, in Civil Revision No.2216 of 1996).
(a) West Pakistan Land Revenue Act (XVII of 1967)---
----S. 42---Mutation of registered gifted-deed---Validity---When donor had got the gift-deed registered and the same being the main transaction, subsequent entry of attestation of mutation was a mere formality for incorporation of registered deed in the Revenue Record.
(b) Islamic Law---
----Gift---Transfer of possession in favour of wife---Proof---Gift-deed was assailed by plaintiff on the grounds of fraud ---Donees produced scribe of the registered gift-deed and two marginal witnesses who had completely proved the gift transaction-- -Trial Court dismissed the suit and Appellate Court as well as High Court maintained the judgment and decree passed by Trial Court---Plea raised by the plaintiff was that at the time of gift no possession was delivered to the wife and hence the necessary ingredient of gift was missing---Validity---Three Courts below had rightly determined the validity of gift-deed---In case of gift to wife or to ward, the delivery of possession was immaterial---Plea raised by the plaintiff was repelled by Supreme Court.
(c) Constitution of Pakistan (1973)---
----Art. 185(3)---Petition for leave to appeal---Administration of justice---Concurrent findings of fact by the Courts below---Question of fact---Determination---Validity---Supreme Court was though not bound to go into question of fact because three Courts below had concurrently determined the same in favour of the respondents, yet the exercise was done in the present case, in the interest of justice.
Shaukat Ali Mehr, Advocate Supreme Court for Petitioner.
Nemo for Respondents.
Date of hearing: 17th June, 2002.
2004 S C M R 1703
[Supreme Court of Pakistan]
Present: Hamid Ali Mirza and Tanvir Ahmed Khan, JJ
MUHAMMAD TAHIR KHAN---Petitioner
Versus
THE STATE and another---Respondents
Criminal Petition No.296 of 2003, decided on 14th October, 2003.
(On appeal from the judgment of the Peshawar High Court, Abbottabad Bench, Abbottabad, dated 3-7-2003 passed in Criminal Appeal No.2 of 2002).
(a) Penal Code (XLV of 1860)-----
----S. 302---Constitution of Pakistan (1973), Art.185(3)---F.I.R. was promptly lodged which had completely ruled out the possibility of any deliberation or consultation---Ocular account inspired confidence and could not be discarded simply due to the relationship of eye-witnesses with the deceased, who had substantiated their presence at the scene of occurrence---Motive for the incident was proved on record---Medical evidence was in line with ocular testimony---Crime empty secured from the spot had matched with the unlicensed pistol recovered from the accused---Dead body of the deceased as well as the blood-stained earth were taken into possession from the shop of accused---Confessional statement of accused had been recorded by Magistrate complying with all the requirements of law which itself was of voluntary nature and had corroborated the prosecution evidence on all material points---Plea of alibi taken by accused was an afterthought and was not substantiated on record---Omission of the number of the case in the inquest report which might be due to inadvertence or inefficiency of the Investigating Officer, would not discredit its authenticity nor would adversely affect the investigation---Leave to appeal was declined to accused in circumstances.
Muhammad Tariq v. State NLR 1982 Cr.LJ 452; Tariq Aziz v. State 1982 PCr.LJ 396; Amjad v. State 1987 PCr.LJ 1773; Ibrahim v. State 1968 SCMR 1240 and Allah Baksh v. State PLD 1978 SC 171 ref.
(b) Criminal Procedure Code (V of 1898)---
----S. 156---Investigation into cognizable cases---Police Rules 1934, Chapt. XXV, 8.25.35---Inquest report---Entries in the inquest report are not substantive evidence---Mere omission of the number of the case in the inquest report which may be either due to inadvertence or inefficiency of the Investigating Officer, would neither discredit its authenticity nor would adversely affect the investigation---Rule 25.35 of Chapt.XXV of the Police Rules, 1934, is directory in nature.
Muhammad Tariq v. State NLR 1982 Cr.LJ 452: Tariq Aziz v State 1982 PCr.LJ 396; Amjad v. State 1987 PCr.LJ 1773; Ibrahim v. State 1968 SCMR 1240 and Allah Baksh v. State PLD 1978 SC 171 ref.
Dr. Babar Awan, Advocate Supreme Court for Petitioner.
Neme for Respondents.
Date of hearing: 14th October, 2003.
2004 S C M R 1709
[Supreme Court of Pakistan]
Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ
MUHAMMAD AZIZ---Petitioner
Versus
AKHTARAIN BEGUM---Respondent
Civil Petition No.3281 of 2001, decided on 5th July, 2002.
(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, dated 2-10-2001 passed in Civil Revision No.287 of 1995).
Punjab Pre-emption, Act (IX of 1991)---
----S. 24---Constitution of Pakistan (1973), Art. 185(3)---Pre-emption money (Zar-e-Soem), non-deposit of---Judicial act must be done with care and proper diligence and an act of the Court must not prejudice a person---Failure of pre-emptor for non deposit of 1/3rd pre-emption money within the time given to him was not due to act or omission of the Court---Contention of pre-emptor that he did not know about the order for deposit of pre-emption money was negated by the fact that as per record, the order was passed in presence of the counsel for pre-emptor and he having obtained Challan for deposit of 1/3rd pre-emption money on 21-12-1994 i.e. about 10 days before the last date of deposit was in the knowledge of order in question---Only plea raised by pre-emptor before Appellate Court or High Court was that after obtaining challan for deposit of 1 /3rd pie-emption money, he could not make deposit of the amount being confined to bed till 2-1-1995 and deposited the pre-emption money on 3-1-1995---Validity---Requirement of law must be fulfilled and it was duty of Trial Court to ensure that order passed under S.24 of Punjab Pre-emption Act, 1991, must be obeyed in letter and spirit and in case of default, the pre-emptor must face consequence of dismissal of suit---High Court having dilated upon grounds urged before him in detail, dismissed the revision petition and the question which were not taken or agitated before the High Court could not be allowed to be taken before Supreme Court---No flaw having been found in the judgment passed by High Court---Leave to appeal was refused.
Raja M. Ibrahim Satti, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioner (absent).
Nemo for Respondent.
Date of hearing: 5th July, 2002.
2004 S C M R 1714
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Javed Iqbal and Faqir Muhammad Khokhar, JJ
Mst. KHAIR-UN-NISA CHANNA---Petitioner
Versus
FEDERATION OF PAKISTAN and others---Respondents
Civil Petition No. 1396/L of 2003, decided on 9th June, 2003.
(On appeal from the order, dated 5-5-2004 of the Lahore High Court, Lahore passed in Writ Petition No. 12423 of 1999).
(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)-----
----Ss. 10, 15 & 18---Suit for recovery of loan amount decreed after dismissal of leave application----Decree not challenged in appeal---Sale of property in execution of decree---Objection to decree that mark-up over mark-up had been allowed to Bank---Validity---Defendant could not legally object to such decree.
(b) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)------
---S. 18---Contract Act (IX of 1872), S. 28---Execution proceedings-Auction of mortgaged property---Statement by judgment-debtor that she would pay decretal amount as per schedule, which if accepted, then she would not seek remedy against auction of property---Judgment-debtor backed out from her undertaking, over which Executing Court ordered for sale of property---High Court dismissed Constitutional petition filed by judgment-debtor---Contention of judgment-debtor was that her statement that she would not seek any remedy, was void as no party could contract not to avail remedy under law---Validity---Consequence of backing out from such statement by judgment debtor was that Executing Court would execute decree and sell property for recovery of decretal amount---Judgment-debtor if desired to seek any remedy against any order passed by Executing Court she would be at liberty to do so in accordance with law, which would be decided on its own merits irrespective of her undertaking not to avail any remedy--Supreme Court dismissed petition and refused leave to appeal.
Abbas Mirza, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record (absent) for Petitioner.
Nemo for Respondents.
Date of hearing: 9th June, 2003.
2004 S C M R 1716
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Sardar Muhammad Raza Khan and Falak Sher, JJ
PROVINCE OF PUNJAB through Collector, Rawalpindi and others---Petitioners
Versus
MUBARAK HUSSAIN and others---Respondents
Civil Petition No.3151 of 2001, decided on 22nd November, 2002.
(On appeal from the judgment, dated 19-9-2001 passed by Lahore High Court, Rawalpindi Bench in Civil Revision No-465-D of 1996).
Specific Relief Act (I of 1877)-----
----S.42---Constitution of Pakistan (1973), Art. 185(3)---Title of suit property--Allotment made by settlement authorities---Concurrent findings of fact by the Courts below---Claim of petitioner was that the suit-land was transferred in favour of Forest Department and the same was given to him on lease---Respondents claimed title of the suit property on the basis of valid purchase of the same from the person in whose favour the Settlement Authorities had issued a transfer order--Trial Court and Appellate Court had decided the matter in favour of the respondents and High Court had maintained the judgments and decrees passed by both the Courts below---Plea raised by the petitioners was that the suit-land was taken over by the Provincial Government under the provisions of S.38 of Forest Act, 1927, for the purpose of foresting for a period of 25 years, and a notification in that regard had been issued by the Government---Validity---If the notification issued by the Provincial Government was accepted as correct, then the question for consideration would be that when the property which had already been given to Forest Department in lieu of compensation, then what was the authority of the Settlement Department to transfer its ownership to the transferee from whom the respondents had purchased the same---Leave to appeal was granted by Supreme Court to examine the questions.
Muhammad Zaman Bhatti, Advocate Supreme Court and Rao M. Younas Khan Advocate-on-Record (Absent) for Petitioners.
Bashir Ahmad Ansari, Senior Advocate Supreme Court and Imtiaz Muhammad Khan Advocate-on-Record for Respondents.
Date of hearing: 22nd November, 2002
2094 S C M R 1719
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Rana Bhagwandas, JJ
Haji FEROZE KHAN and another---Petitioners
Versus
AMIR HUSSAIN through L.Rs. and others---Respondents
Civil Petition Nos.3104 and 3112 of 2003, decided on 18th December, 2003.
(On appeal from the judgment dated 19-9-2003 of the Lahore High Court, Rawalpindi Bench passed in Civil Revisions Nos.64 and 69-D of 1998).
(a) Evidence---
---- Inference from evidence- --Court has discretion to raise inference from evidence produced by the parties---Exercise of such discretion is always subject to correction by the higher Court in appeal or revision as the case may be.
(b) Punjab Pre-emption Act (IX of 1991)---
----S.13---Constitution of Pakistan (1973), Art.185(3)---Right of preemption, exercise of---Evidence on file---Inference drawn by Courts---Pre-emptor in examination-in-chief had stated that he came to know about the disputed sale on 18-10-1991and had sent witnesses to the vendee on 10-10-1991---Trial Court as well as Appellate Court dismissed the suit and appeal respectively on the ground that the pre-emptor had the knowledge about the sale on 10-10-1991---High Court in exercise of revisional jurisdiction reversed the findings of both the Courts below on the ground that the date 10-10-1991, was either slip of tongue or was wrongly recorded because the remaining evidence was consistent with the fact that the witnesses had gone to the vendee on the next day when he acquired the knowledge of the sale---High Court after drawing such inference in favour of the pre-emptor, decreed the suit ---Validity--Courts below raised inferences from the part of the statement of the preemptor that he came to know about the sale on 10-10-1991 in isolation of other facts which was no proper exercise of discretion as to raising of inferences---High Court had rightly held that from the evidence if read as a whole, it was made out that the sentence either had not been correctly recorded in the statement of pre-emptor or there was a mistake in mentioning the date as 10-10-1991---Inferences drawn by the two Courts, below were rightly interfered with on finding the same to have been" based on non-consideration of the evidence as a whole which were in accordance with law and did not suffer from any legal infirmity-Supreme Court declined to interfere with the judgment passed by High Court---Leave to appeal was refused.
(c) Punjab Pre-emption Act (IX of 1991)---
----S. 13---Constitution of Pakistan (1973), Art.185(3)---Pre-emption suit---Improvement on suit land---Appeal against judgment of Trial Court ---Pendency---Effect---New plea, raising of---After dismissal of suit by Trial Court, vendee raised construction over the suit-land and claimed compensation of the same---Neither any such plea was raised before the High Court, nor the amount spent on, construction was mentioned in the petition---Validity---Mere dismissal of suit by the Trial Court was not the end of the matter---Appeal before the Appellate Court was continuation of the suit which would be deemed to be pending till the disposal of the matter by the Appellate Court---Supreme Court declined to entertain such plea of the vendee ---Leave to appeal was refused.
Sheikh Zamir Hussain, Advocate Supreme Court for Petitioners.
Nemo for Respondents.
Date of hearing: 18th December, 2003.
2004 S C M R 1723
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry and Falak Sher, JJ
ABDUL RAHIM and others---Petitioners
Versus
MUHAMMAD HAYAT and others---Respondents
Civil Petition No. 1505/L of 2001, decided on 27th July, 2004.
(On appeal from the judgment/order, dated 26-1-2001 passed by Lahore High Court, Lahore in R.S.A. No.74 of 1989).
(a) West Pakistan Land Revenue Act (XVII of 1967)----
----S. 42---Specific Relief Act (I of 1877), S.42---Mutation entry including the Jamabandi does not confer proprietary rights except raising rebuttal presumption in favour of their correctness and in case there was no rebuttal of such entries but same were on the other hand supported by other evidence, person in whose favour such entries were made, could rely upon them.
Abdul Ahad v. Roshan Din PLD 1979 SC 890 distinguished.
PLD 1986 Quetta 198 ref.
(b) Qanun-e-Shahadat (10 of 1984)-----
----Arts. 75 & 76---West Pakistan Land Revenue Act (XVII of 1967), S.42---Specific Relief Act (I of 1877), S.42---Suit for declaration of ownership of land---Any of the documents i.e. the mutation entry or Jamabandi which had not been proved by leading primary evidence or secondary evidence, to prove its contents in terms of Arts.75 and 76, Qanun-e-Shahadat, 1984, could not be taken into consideration and for such reason, these documents would have no evidentiary value.
PLD 1986 Quetta 198 ref.
Abdul Ahad v. Roshan Din PLD 1979 SC 890 distinguished.
Sh. Naveed Shaharyar, Advocate Supreme Court and S. Abul Asim Jafri, Advocate-on-Record (absent) for Petitioners.
Ch. Mushtaq Masood, Advocate Supreme Court and Sh. Masood Akhtar, Advocate-on-Record for Respondents.
Date of hearing: 27th July, 2004.
2004 S C M R 1726
[Supreme Court of Pakistan]
Present: Rana Bhagwandas, Sardar Muhammad Raza Khan and Khalil-ur-Rehman Ramday, JJ
TAJ DIN son of Pir Muhammad and others-- -Petitioners
Versus
TAJ DIN son of Fateh Din and another---Respondents
Civil Petition for Leave to Appeal No. 1973/L of 1999, decided on 10th July, 2002.
(On appeal from the judgment, dated 27-9-1999 of the Lahore High Court, Lahore in Civil Revision No.707 of 1999).
Specific Relief Act (I of 1877)---
----S. 42---Constitution of Pakistan (1973), Art. 185(3)---Title over suit land---Determination---Concurrent findings of fact by the Courts below---Grievance of plaintiff was that he was owner of the suit-land and the defendant had illegally executed the gift-deed regarding the same--Apart from other oral and documentary evidence, the plaintiffs had produced an old person aged 80/85 years who in his statement before Trial Court explained the relationship of plaintiffs---Evidence of the witness was found worthy of credence as the same could not be shattered during the course of cross-examination---Trial Court decreed the suit and appeal was dismissed by Appellate Court---Findings of facts by the two Courts below were affirmed by High Court---Validity---No fault was found with the appreciation of evidence done by the Courts below which was rightly upheld by High Court---Supreme Court declined to interfere with the judgments and decrees passed by the Courts below---Leave to appeal was refused.
Taki Ahmad Khan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 10th July 2002.
2004 S C M R 1728
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry and Falak Sher, JJ
FARYAD ALI and another---Petitioners
Versus
DEPUTY INSPECTOR-GENERAL OF POLICE, GUJRANWALA and others ---Respondents
Criminal Petition No.458/L 2004, decided on 29th July, 2004.
(On appeal from the judgment/order, dated 15-7-2004 passed by. Lahore High Court, Lahore in Criminal Miscellaneous No.4130/B of 2004).
(a) Control of Narcotic Substances Act (XXV of 1997)---
----S. 26---Penal Code (XLV of 1860), S. 194---Criminal Procedure Code (V of 1898), Ss. 476, 195 & 497---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by the Supreme Court to consider the contentions that since High Court, without affording opportunity of hearing to petitioners, ought not to have directed registration of case against them under section 194, P.P.C. read with section 26 of the Control of Narcotic Substances Act, 1997, the impugned judgment, was in violation of principles of natural justice and thus deserved to be set aside; that allegation of fabricating evidence could only be proved against the petitioners after trial of the accused persons, who were involved in the case and cognizance of such offence could only be taken on the complaint of the Court before whom fabricated evidence had been produced, in terms of section 476 read with section 195, Cr.P.C. and that petitioners had not conducted investigation because they were witnesses in the recovery of the `Charas', as such, prima facie, they were not involved in the offences under section 194, P.P.C. read with section 26 of the Control of Narcotic Substances Act, 1997.
Manzoor v. The State PLD 1972 SC 81 ref.
(b) Penal Code (XLV of 1860)---
----S. 194---Criminal Procedure Code (V of 1898), Ss.195(b), 476 & 497---Control of Narcotic Substances Act (XXV of 1997), S.26-Offence under S.194, P.P.C. regarding giving or fabricating false evidence with intent to procure conviction could only be established after conducting trial of the accused persons---High Court, prima facie, had no jurisdiction to take cognizance, directly, of the offence allegedly committed under S. 194, P.P.C. by the accused in view of the provisions of S.476 read with S.195, Cr.P.C. because according to the provisions of latter law, cognizance of a complaint covering the violation of S.194, P.P.C. could only be taken on the complaint in writing of the Court before whom such fabricated evidence was produced for the purpose of procuring sentence---High Court, in the, present case, was seized of the matter pertaining to the bail of one of the accused persons, therefore, prima facie, in exercise of such jurisdiction, High Court may have not passed any remarks with regard to responsibility or otherwise of the accused, on the basis of the report of police official because the opinion of police officer was not binding upon the Courts at bail stage---High Court may have withheld its opinion till the disposal of the case, challan of which had already been filed and therefore, it may have directed to the Court to proceed against the accused, if need be, on observing codal formalities or the accused who had .allegedly been involved falsely in the case by fabricating evidence against them, could have themselves availed legal remedy for the quashment of the case etc.
Manzoor v. The State PLD 1972 SC 81 ref.
Sayyed Mazahar Ali Akbar Naqvi, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Petitioners.
Raja Abdur Rehman, A.A.-G. and Tayyab Saeed, D.P.O. Narowal for Respondents.
Date of hearing: 29th July, 2004.
2004 S C M R 1734
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Tanvir Ahmed Khan, JJ
MUHAMMAD SADIQ and others---Petitioners
Versus
BASHIR AHMAD and others---Respondents
Civil Petitions for Leave to Appeal No. 1929/L and 1930/L of 1999, decided on 27th June, 2002.
(On appeal from the order, dated 9-9-1999. of the Lahore High Court, Lahore, passed in Civil Revisions Nos. 1355 and 1356 of 1999).
Islamic Law---
----Gifts---Registered gift-deed---Proof---Possession of suit property was with defendants---Predecessor-in-interest of parties had gifted the suit property to the defendants out of his free-will before his death --- Factum of gift had been supported by the evidence of scribe, marginal witnesses and Sub-Registrar, who registered the disputed gift-deed---All the legal formalities were undertaken before registering the gift-deed---Two Courts below after evaluating the evidence upheld the factum of gift which had been maintained by High Court---Validity---Plaintiffs failed to point out any legal infirmity or misreading in the judgment passed by the Courts below warranting interference by Supreme Court---Leave to appeal was refused.
Mahmood A. Qureshi, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 27th June, 2002.
2004 S C M R 1735
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Falak Sher, JJ
Malik MUHAMMAD HUSSAIN and another---Petitioners
Versus
Malik GHULAM QADIR and others---Respondents
Civil Petition No.2607/L of 2003, decided, on 24th November, 2003.
(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench, Bahawalpur, dated 17-9-2003 passed in Writ Petition No. 1731 of 2003/BWP).
Guardians and Wards Act (VIII of 1890)---
----S. 25---Custody of minors---Right of father---Father after demise of wife had not contracted second marriage for sake of his minor children--Question of handing over custody of minors to father for their welfare as determined by Courts below and upheld by High Court did not suffer any legal infirmity--Supreme Court dismissed petition and refused leave to appeal.
Abdul Majeed Iftikhar Janjua, Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 24th November, 2003.
2004 S C M R 1737
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ
Messrs PAKISTAN INTERNATIONAL AIRLINES KARACHI---Petitioner
Versus
INAYAT RASOOL---Respondent
Civil Review Petition No. 104 of 2002, decided on 20th September, 2002.
(On review of the judgment of this Court, dated 27-5-2002 passed in C.P. No.371/K of 2001).
Constitution of Pakistan (1973)---
----Art. 188---Supreme Court Rules, 1980, O. XXVI, R.1---Review--Re-examination of case---Scope---Review of judgment passed by Supreme Court is limited and. always confined to the essential aspects of the case referred to at review stage which were not considered in the judgment but if the grounds taken in support of the review petition were considered in the judgment and decided on merits, the same would not be available for review in the form of re-examination of the case on merits---Ground raised by the petitioner in support of review petition having already been discussed and decided on merits, by Supreme Court, the same was not allowed to be re-agitated---Review petition was dismissed.
Fazal-e-Ghani, Senior Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate-on-Record for Petitioner.
Respondent in person.
Date of hearing: 20th September, 2002.
2004 S C M R 1739
[Supreme Court of Pakistan]
Present: Munir A. Sheikh, Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ
Mst. ALLAH RAKHI---Petitioner
Versus
TANVIR IQBAL and others--Respondents
Civil Petition No. 1572/L of 2003, decided on 23rd December, 2003.
(On appeal from the judgment, dated 7-5-2003 of the Lahore High Court passed in Writ Petition No.3006 of 2003).
West Pakistan Family Courts Act (XXXV of 1964)---
----S. 5 & Sched.---Constitution of Pakistan (1973), Art. 185(3)---Suit for recovery of dowry articles---List of articles appended with plaint--Judgment of Appellate Court decreeing suit on basis of such list was set aside by High Court in Constitutional petition for being based on no evidence---Validity---Evidence produced by plaintiff consisted of her own statement---Plaintiff had not stated that such list had been prepared at the time of Rukhsati---Plaintiff had stated that she did not know as to what had been mentioned in such list---No evidence had been produced to corroborate her statement that she had been given articles of dowry--'Impugned judgment was legally correct---Supreme Court dismissed petition and refused leave to appeal.
Ch. Naseer Ahmad Bhutta, Advocate Supreme Court for Petitioner.
Date of hearing: 23rd December, 2003.
2004 S C M R 1740
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Faqir Muhammad Khokhar, JJ
MUBARAK ALI --- Petitioner
Versus
MUHAMMAD RAMZAN and others---Respondents
Civil Petition No.3074/L of 2002, decided on 10th December, 2002.
(On appeal from the judgment of the Lahore High Court, Lahore, dated 25-6-2002 passed in Civil Revision No. 1338/D of 1997).
Civil Procedure Code (V of 1908)---
----S. 115---Constitution of Pakistan (1973), Art. 185(3)---Revision--Annexing of wrong judgment and decree with revision petition---Two suits were decided, one for partition and the other for redemption of mortgage---Petitioner preferred appeal against judgment and decree passed in the suit for partition---Appellate Court dismissed the appeal and being aggrieved of the judgment and decree passed by Appellate Court, the petitioner filed revision under S.115, C.P.C. before High Court---Record of the suit for partition was annexed with the revision petition but judgment and decree passed in the suit for redemption was affixed---Petitioner having come to know the mistake sought permission of High Court for substitution of the judgment and decree---High Court did not allow the same and the revision was dismissed on the ground that when the revision was filed, the petitioner was in possession of the certified copies of the relevant judgment and decree-- -Validity--.Discretion in the matter exercised by High Court against the petitioner on his oral prayer for placing on record the required documents did not suffer either from arbitrariness or from being based on irrelevant consideration, therefore, the same did not suffer from any illegality--Supreme Court declined to interfere with the judgment passed by High Court in exercise of revisional jurisdiction---Leave to appeal was refused.
Sardar Roshan Ail Sandhu, Advocate Supreme Court for Petitioner.
M.A. Zafar, Advocate Supreme Court for Respondents.
Date of hearing: 10th December, 2002.
2004 S C M R 1743
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah, Khalil-ur-Rehman Ramday and Falak Sher, JJ
HABIB-UL-HAQUE alias AJAR and others---Petitioners
Versus
UMER GUL through L.Rs. and others---Respondents
Civil Petition No.664 of 2002, decided on 28th April, 2004.
(On appeal from the judgment of Peshawar High Court, Peshawar, dated 22-4-2002 passed in Civil Revision No.350 of 1992).
(a) Criminal Procedure Code (V of 1898)---
----Ss. 87, 88 & 89---Attachment of property of proclaimed person and restoration thereof---Provisions contained in Ss.87, 88 & 89, Cr.P.C. are a complete code about matters relating to the attachment and sale of the property belonging to a proclaimed person and the restoration thereof--Any attached property which was sold under S.88, Cr.P.C. was not liable for restoration as per provisions of S.89, Cr.P.C. and even if the proclaimed offender had satisfied the competent Court about his ignorance regarding his requirement about a Court of law then only the sale proceeds of the property in question could be offered to him after deducting expenses incurred in the auction of the same which clearly established that the auction or sale of such a property once made was final and could not be undone even when the competent Court was satisfied that the disappearance of the owner of the said properly was not intentional---Principles.
In the present case the property in question had been sold through an open auction under the order of the Sessions Judge in pursuance of the powers vested in him under section 88 of the Cr.P.C. This auction had taken place in the year 1957 i.e. almost a quarter of a century before the filing of the suit in question by the successors-in-interest of the convict. Petitioners who were heirs of the said convict could not offer any reasonable explanation for this more than inordinate delay in the filing of the suit when it had been admitted by the petitioners themselves before the trial Court that they were aware of the land in question having been auctioned and the same having been purchased by the predecessors-in-interest of the respondents.
The provisions contained in sections 87 to 89 Cr.P.C. were a complete code about the matters relating to the attachment and sale of the property belonging to a proclaimed person and the restoration thereof. The convict did initiate proceedings for the restoration of the attached property after his arrest in the year 1957 which prayer was declined by the Judicial Commissioner of N.-W.F.P., and no further proceedings were taken by any one to pursue the said matter before any higher forum and this matter had thus attained finality. As per provisions of section 89, Cr.P.C. any attached property which was sold under section 88 of the Cr.P.C. was not liable for restoration and even if the proclaimed offender had satisfied the competent Court about his ignorance regarding his requirement before a Court of law then only the sale proceeds of the property in question could be offered to him after deducting expenses incurred in the auction of the same which clearly established that the auction or sale of such a property once made was final and could not be undone even when the competent Court was satisfied that the disappearance of the owner of the said property was not intentional.
(b) Criminal Procedure Code (V of 1898)---
----S. 88---Constitution of Pakistan (1973), Art. 1(1)---Attachment of property of proclaimed person---Provisions of Section 88, Cr.P.C. did not exempt the property situated in the Federally Administered Tribal Areas.
The provisions of section 88, Cr.P.C. did not exempt the property situated in the Federally Administered Tribal Areas from the operation of the provisions of the said section 88, Cr.P.C. and moreso when the Federally Administered Tribal Areas were a part and parcel of the territories comprising the State of Pakistan in terms of Article 1(1) of the Constitution.
Thus, looking at the matter from whatever angle i.e. be it a question of limitation; be it a question of the finality attached to the auction/sale under section 88, Cr.P.C. or the fact that the one who had purchased the property in an auction held under the orders of a competent Court were bona fide purchasers of the same for valuable consideration, no exception could be taken to the consistent findings of the three learned Courts which are being questioned before us.
Mian Muhammad Younis Shah, Senior Advocate Supreme Court with Imtiaz Muhammad Khan, Advocate-on-Record for Petitioners.
Gulzarin Kiani, M. Sardar Khan, Advocate Supreme Court and Nazir Ahmed Lughmani, Advocate-on-Record for Respondents.
Date of hearing: 28th April, 2004.
2004 S C M R 1747
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J., Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ
ZUBAIR AHMAD and another---Appellants
Versus
SHAHID MIRZA and 2 others---Respondents
Civil Appeal No.418 of 2004, decided on 5th July, 2004.
(On appeal from the judgment, dated 9-3-2004 passed by Lahore High Court, Lahore in R.F.A. No.370 of 2003).
(a) Civil Procedure Code (V of 1908)---
----O. XXXVII---Suit on the basis of dishonoured cheque---Defendants denying their liability---Grant of conditional or unconditional leave by the Court---Governing factors---Quality and plausibility of defence--Determination of---Principles---Discretion of Court---Scope.
The suit was filed on the basis of dishonoured cheque against the appellants who having challenged the genuineness of the claim of respondents through oral assertion, denied their liability. It is difficult for the Court to give verdict in a case involving factual controversy without recording the evidence but in the suits under Order XXXVII, C.P.C., the Court may without grant of leave to defend the suit, if is satisfied about the genuineness of the claim of plaintiff, pass a decree in the suit. The governing factor while considering the question of grant of conditional or unconditional leave is the quality of defence and the determination of question of quality and plausibility of defence always depends on the grounds taken and material placed before the Court in support of the application for grant of permission to appear and defend the suit. In absence of plausible defence, the Court may not grant conditional or unconditional leave and may pass the decree in the suit in 'exercise of powers under rule 2(2) read with Rule 3 of Order XXXVII, C.R.C. In case of grant of conditional leave if the defendant fails to fulfil the condition and the Court is satisfied that default was not wilful and intentional, may condone the lapse or extend the time for fulfilling the condition but if no sufficient cause is shown for default, the Court may the decree in the suit. The grant of conditional or unconditional a leave having direct nexus with the plausibility of defence, the ultimate success or failure in the suit is not the consideration for refusal or grant of leave, rather the consideration is that the grounds taken in the application for grant of permission to defend the suit are plausible and defendant has arguable case but there is no rule that if the defence is plausible, the defendant must be granted unconditional leave. If the Court forms an opinion that the defendant has a good or plausible answer to the claim of the plaintiff, it may grant unconditional leave but if the defence is not of good standard, the Court may refuse unconditional leave However, if the Court in the light of the pleadings of the parties considers that it is not possible to ascertain the correct factual position qua the stand of parties, may grant unconditional leave but this is not the sole criteria to determine the question of grant of conditional or unconditional leave. The plausibility of the defence, is considered sufficient ground for grant of leave to defend the suit but it does not create a right of grant of unconditional leave which is granted only in a case in which there is sufficient substance in the defence and if the defence is based only on oral allegations of false claim, the Court may not grant even conditional leave to defend the suit. The plaintiff in the present case filed a suit under Order XXXVII, C.P.C. on the basis of a dishonoured cheque and the defendants, while denying their signatures on the cheque and the liability of payment, pleaded that cheque was fabricated. The trial Judge, having considered the matter, exercised the discretion in favour of grant of conditional leave which was upheld by the High Court in appeal with the observation that passing of the decree was legal consequence of the failure of appellants to fulfil the terms of leave granting order. The trial Judge in the light of the facts of the case, deemed it proper to grant the conditional leave and in the given facts, no exception could be taken to the use of discretion in such manner. In law and common sense, the discretion is discerning between wrong and right and power to act at discretion is bound by the rule of reasons which must be guided by law and must not be used in an arbitrary, vague and fanciful manner, rather it should be honest, legal and in the spirit of statute. In judicial matters, the exercise of discretion must be based on good and substantial reason and Supreme Court having examined the matter from this angle, has not been able to find out any defect in the exercise of discretion by the Trial Court in the present case and consequently, held that grant of conditional leave was not against the law, and justice.
The conditional grant of leave in a suit under Order XXXVII, C.P.C. is not questionable if the order was passed in exercise of discretionary jurisdiction providing an opportunity of hearing to the defendant but if the order was passed without hearing the defendants, it would not be a legal order. In the present case the order of grant of conditional leave was passed after providing full opportunity of hearing to the appellants, who, without showing good defence, pleaded for grant of unconditional leave as of rule. The appellants instead of offering a reasonable explanation for not fulfilling the condition of furnishing bank guarantee in terms of the order of the Court or seeking extension in time from the Court for compliance of the order, attempted to suggest that the claim of the respondents was based on forged cheque. The defence of the appellant evidently being not of good standard, would not be considered plausible for grant of unconditional leave. This is noticeable that appellants had not questioned the genuineness of the claim of respondents on a convincing ground and the appellants also had not been able to satisfy the Supreme Court that the defence plea of the appellants was plausible and the grounds taken in support thereof were strong enough for grant of unconditional leave.
Supreme Court, in circumstances took no exception to the judgment of High Court and maintained the decree passed by the Trial Court in the suit.
(b) Discretion---
---- Discretion is bound by the rule of reasons which must be guided by law and must not be used in an arbitrary, vague and fanciful manner, rather should be honest, legal and in the spirit of Statute. In law and common sense, the discretion is discerning between wrong and right and power to act at discretion is bound by the rule of reasons which must be guided by law and must not be used in an arbitrary, vague and fanciful manner, rather it should be honest, legal and in the spirit of statute. In judicial matters, the exercise of discretion must be based on good and substantial reason.
Arif Chaudhry, Advocate Supreme Court and Ch. Talib Hussain, Advocate-on-Record (absent) for Appellants.
Mian Atta-ur-Rehman, Advocate-on-Record for Respondent No. 1.
Date of hearing: 5th July, 2004.
2004 S C M R 1755
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Falak Sher, JJ
KHADIM HUSSAIN ---Petitioner
Versus
THE STATE---Respondent
Criminal Petition No. 464/L of 2003, decided on 23rd December, 2003.
(On appeal from the judgment, dated 21-5-2003 passed by the Lahore High Court in Criminal Appeal No. 868 of 2001).
(a) Penal Code (XLV of 1860)---
----S. 409---Constitution of Pakistan (1973), Art. 185(3)---No prejudice had been caused to the accused for having been tried by the Court of competent jurisdiction---Prosecution evidence furnished by nine witnesses inspired confidence---Accused as a Lambardar-was obliged to receive and keep the collected Government revenue for which he was remunerated by fees or commission, but he had illegally retained the same for over three years vouching the embezzlement and deposited the amount with the treasury only after the registration of the case against him---Offence of dishonest misappropriation or conversion to one's own use was not contingent upon time span, rather it, was the coincidence of the actus rea and mens rea---Conviction and sentence of accused being well based, leave to appeal was declined to accused.
Said Muhammad and others v. Emperor AIR 1935 Pesh. 189 ref.
(b) Penal Code (XLV of 1860)---
----S. 21. cl.9th--Public servant ---Lambardar is a public servant within the meaning of the Penal Code.
Said Muhammad and others v. Emperor AIR 1935 Pesh. 189 ref.
(c) Penal Code (XLV of 1860)---
----S. 405---Criminal breach of trust---Offence of dishonest misappropriation or conversion to one's own use is not contingent upon time span rather it is the coincidence of actus rea and mens rea.
Muhammad Kazim Khan, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Petitioner.
Mian Abdul Qayyum Anjum, Advocate Supreme Court for the State.
Date of hearing: 23rd December, 2003.
2004 S C M R 1758
[Supreme Court of Pakistan]
Present: Faqir Muhammad Khokhar and Mian Shakirullah Jan, JJ
Messrs FAZAL VEGETABLES GHEE MILLS (PVT.) LIMITED, INDUSTRIAL AREA, ISLAMABAD---Petitioner
Versus
GHEE CORPORATION OF PAKISTAN (PVT.) LTD. and 4 others---Respondents
Civil Petition No.2343 of 2002, decided on 10th August, 2004.
(On appeal from the judgment dated 7-8-2002 of the Lahore High Court, Lahore passed in Writ Petition No.6223 of 1995).
(a) Civil Procedure Code (V of 1908)---
----O. XXXIX, Rr. 1 & 2---Constitution of Pakistan (1973), Art. 185(3)--Temporary injunction against encashment of Bank guarantee---Refusal of Trial Court to grant such interim relief was maintained by Appellate Court and in Constitutional petition by High Court---Validity---Relief sought for, was discretionary with Court, which had been properly exercised and was not arbitrary, perverse or fanciful---High Court after considering all aspects of case had found that petitioner could not make out a case for grant of temporary injunction---Impugned orders of two Courts below were legal, thus, High Court declined to exercise Constitutional jurisdiction in such matter, which was discretionary and equitable---Supreme Court dismissed petition and refused leave to appeal.
Ramzan Sugar Mills Ltd. and others v. Mian Miraj-ud-Din and others 1994 SCMR 2281 rel.
(b) Civil Procedure Code (V of 1908)---
----O. XXXIX, Rr.1, 2 & S.151---Interim order, grant of ---Non interference with interim order passed by Court of competent jurisdiction would be a rule and interference would be an exception.
Ramzan Sugar Mills Ltd. and others v. Mian Miraj-ud-Din and others 1994 SCMR 2281 fol.
Malik Qamar Afzal, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-record (absent) for Petitioner.
Nemo for Respondents.
Date of hearing; 10th August, 2004.
2004 S C M R 1761
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Tassaduq Hussain Jilani, JJ
GOVERNMENT OF PAKISTAN through Ministry of Defence, Rawalpindi ---Petitioner
Versus
S.H.T. LEELAN and others---Respondents
Civil Petition No.2588 of 2003, decided on 12th August, 2004.
(On appeal from the judgment dated 27-8-2003 passed by High Court of Sindh, Karachi in Constitutional Petition No.2814 of 2003).
Pakistan Army Act (XXXIX of 1952)-----
----Ss. 2(1)(d)(i)(ii) & 59(4)---Official Secrets Act (XIX of 1923), S.3-Constitution of Pakistan (1973), Arts.185(3) & 199---Detention of civilian under Official Secrets Act, 1923 read with S.2(1)(d)(ii) of Pakistan Army Act, 1952---High Court disposed of Constitutional petition of detenu with observations that civilian could be tried under the Pakistan Army Act, 1952, if he was accused of seducing or attempting to seduce any person subject to the said Act from his duty or allegiance to Government ---Validity---Paras.(i) & (ii) of clause (d) of subsection (2) of S.2 of Pakistan Army Act, 1952 were disjunctive---High Court while observing so had confined itself to para.(i) of clause (d) of subsection (1) of S.2 of the Act but had ignored import of para.(ii) thereof making also civilians subject to Pakistan Army Act, 1952 in circumstances mentioned therein---Section 59(4) of Pakistan Army Act, 1952 would be attracted to offence under Official Secrets Act, 1923, which was one of the offences mentioned in clause (d)(ii) of S.2(1) of Act, 1952---Supreme Court modified such observations of High Court.
F.B. Ali's case PLD 1975 SC 506 and Allah Rakha v. District Magistrate, Sialkot and others PLD 1968 Lah. 1061 rel.
Allah Rakha v. District Magistrate, Sialkot and others PLD 1968 Lah. 1061 and Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504 ref.
Makhdoom Ali Khan, Attorney-General for Pakistan with Muhammad Munir Peracha, Advocate Supreme Court and Lt.-Col. Iqbal Hussain, AJAG for Petitioner.
Rashid A. Rizvi, Advocate Supreme Court for Respondent No.1.
Date of hearing: 12th August, 2004.
2004 S C M R 1766
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Faqir Muhammad Khokhar, JJ
SASTAY KHAN MASOOD---Petitioner
Versus
THE STATE---Respondent
Criminal Petition No.112/L of 2004, decided on 30th March, 2004.
(On appeal from the judgment, dated 15-1-2004 of the Lahore High Court, Multan Bench, passed in Criminal Appeal No. 212 of 1994).
(a) Prevention of Corruption Act (II of 1947)---
----S. 5(2)--- Venal Code (XLV of 1860), S.161---constitution of Pakistan (1973), Art 185(3)---No prejudice was shown to have been caused to the accused on account of any defect or irregularity in the court of investigation---Defect in investigation, if any, did not affect the jurisdiction of the Trial Court to try the case in the absence of any miscarriage of justice, which even otherwise was ordinarily curable under S.537, Cr.P.C.---High Court after re-appraisal of the entire evidence on record had affirmed the judgment of the Trial Court---Case, even otherwise, was not a fit one for grant of leave to appeal---Leave to appeal was refused to accused accordingly.
M. Abdul Latif v. G.M. Paracha and others 1981 SCMR 1101; The Crown v. Mehr Ali PLD 1956 FC 106; Ch. Manzoor Elahi v. Federation of Pakistan and others PLD 1975 SC 66; State v. Muhammad Hussain PLD 1968 SC 265; M.S.K. Ibrat v. The Commander-in-Chief Royal Pakistan Navy and others PLD 1956 SC (Pak.) 264; H.N. Rishbud and another v. State of Delhi AIR 1955 SC 196 and Major E.G. Barsay v. State of Bombay AIR 1961 SC 1762 ref.
(b) Prevention of Corruption Act (II of 1947)-----
----S.5(2)---Penal Code (XLV of 1860), S.161---Criminal Procedure Code (V of 1898), S.537---Defect in investigation---Effect---Defect in investigation of a case, does not. affect the jurisdiction of the Trial Court, nor does it vitiate the trial, in the absence of any miscarriage of justice--Ordinarily, an irregularity in police investigation is curable under S.537, Cr.P.C.
M. Abdul Latif v. G.M. Paracha and others 1981 SCMR 1101: The Crown v. Mehr Ali PLD 1956 FC 106: Ch Manzoor Elahi v. Federation of Pakistan and others PLD 1975 SC 66; State v. Muhammad Hussain PLD 1968 SC 265; M.S.K. Ibrat v. The Commander-in-Chief Royal Pakistan Navy and others PLD 1956 SC (Pak.) 264; H.N. Rishbud and another v. State of Delhi AIR 1955 SC 196 and Major E.G. Barsay v. State of Bombay AIR 1961 SC 1762 ref.
Rana Muhammad Arshad Khan, Advocate Supreme Court for Petitioner.
Nemo for Respondent.
Date of hearing: 30th March, 2004.
2004 S C M R 1770
[Supreme Court of Pakistan]
Present: Hamid Ali Mirza and Sardar Muhammad Raza Khan, JJ
ABDUL HAKEEM and others---Petitioners
Versus
KHALID WAZIR---Respondent
Civil Review Petition No.87 of 2003' in Civil Petition No.472-P of 2002, decided on 11th August, 2004.
(Review from this Court's judgment, dated 26-5-2003 passed in Civil Petition No.472-P of 2002).
North-West Frontier Province Pre-emption Act (X of 1987)---
----S. 20---Constitution of Pakistan (1973), Art. 188---Supreme Court Rules, 1980, OXXVI, R.1---Civil Procedure Code (V of 1908), O.XLVII, R.1---Review of Supreme Court judgment---Decree in pre- emption suit---Review of judgment reported as 2003 SCMR 1501---Plea of vendee having equal right of pre-emption with pre-emptor ---Supreme Court in judgment under review observed that vendee having such equal right was entitled to property in equal share and that Court was bound to grant decree in equal shares even in absence of such plea raised by vendee, but refused to grant leave to appeal to vendee on the ground that he could not raise such plea in review before High Court for not having taken same before Lower Courts---Validity---Such two conclusions drawn simultaneously was outcome of banking upon a hyper technicality, resultantly both such views had become destructive of each other--Supreme Court was morally and legally convinced that such aspect by itself was a sufficient ground for review of its judgment---Both parties were co-sharers in property belonging to same class of pre-emptors, thus, were entitled to share property equally---Supreme Court accepted review petition by reviewing its judgment and granted decree to preemptor of halt of disputed property on payment of half sale price determined by Trial Court.
2003 SCMR 1501 ref.
Abdul Samad Khan, Advocate Supreme Court/Advocate-on-Record for Petitioners.
Haji M. Zahid Shah, Advocate Supreme Court and Advocate-on-record for Respondent.
Date of hearing: 11th August, 2004.
2004 S C M R 1773
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Syed Deedar Hussain Shah, JJ
Messrs JOURNALIST PUBLICATION (PVT) LIMITED through Chief Editor---Petitioner
Versus
Mst. MUMTAZ BEGUM alias MUSTARI BEGUM through her duly constituted Attorney and others---Respondents
Civil Petitions for Leave to Appeals Nos.591/K and 592/K of 2004, decided on 2nd August, 2004.
(On appeal from the judgment/order of the High Court of Sindh, Karachi, dated 22-6-2004 passed in C.P. Nos.D-223 and D-224 of 2004).
(a) Sindh Rented Premises Ordinance (XVII of 1979)-----
----Ss. 10(3) & 15(2)(ii)---Qanun-e-Shahadat (10 of 1984), Art.129(e)--Default in payment of rent---Deposit of rent in Court after refusal of landlord to accept same through money order---Rent Controller dismissed ejectment petition, which judgment was reversed by Appellate Court and upheld by High Court in Constitutional petition ---Validity--Landlady or her attorney had not controverted postal certificate produced a by tenant about non-acceptance of rent through money order---Postal k certificate was a public document signed by Government functionary, thus, presumption of its correctness could not be doubted---Record showed that tenant had deposited rent without delay---Landlady herself had not appeared to rebut such plea of tenant---High Court and Appellate Court had not properly, appreciated evidence adduced by tenant--Supreme Court accepted appeal, set aside impugned judgments and maintained that of Rent Controller.
(b) Qanun-e-Shahadat (10 of 1984)-----
----Art. 129(e)---Postal certificate ---Such certificate was a public document signed by Government functionary, thus, presumption of its correctness could not be doubted.
(c) Power of attorney---
----Power of attorney must be strictly construed--- On fair construction of the whole instrument, authority in question must be found within four corners thereof either in express terms by necessary implication.
Muhammad Akhtar v. Manna 2001 SCMR 1700 ref.
Ainuddin Khan, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-record (in both petitions).
Respondent No. 1 in person.
Date of hearing; 2nd August, 2004.
2004 S C M R 1777
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, CJ., Javed Iqbal and Abdul Hameed Dogar, JJ
CHINA PETROLEUM ENGINEERING CONSTRUCTION---Appellant
Versus
KHATTAK ALLIED CONSTRUCTION COMPANY---Respondent
Civil Appeal No. 893 of 2003, decided on 23rd January, 2004.
(On appeal from the judgment, dated 12-11-2002 of the Peshawar High Court, Peshawar, passed in R.F.A. No. 7 of 2002).
(a) Civil Procedure Code (V of 1908)---
----O. VIII, R.6---Claim of set off---Object and scope---Effect of set off pleaded in written statement is that such statement has the same effect as plaint in cross suit --- Claim of set off cannot be made by defendant while is statement is being recorded---During the statement, the claim of set ff cannot be pleaded as the same had not been made at the opportune moment.
Ahmad Saeed. Kirmani v. Muslim Commercial Bank Limited 1993 SCMR 441 and Niamat Ali v. Jairam Das PLD 1983 SC 5 rel.
(b) Qanun-e-Shahadat (10 of 1984)-----
----Art. 72---Civil Procedure Code (V of 1908), O.XIII, R.4 ---Execution of document, denial of---Document exhibited in evidence without objection---Effect---Disputed document was prepared on behalf of defendant and the same was signed by his representative---Admissibility of such document could not be denied as the same was admitted in evidence before Trial Court without any objection.
(c) Constitution of Pakistan (1973)---
----Art. 185 (2)(d)---Recovery of money---Concurrent findings of facts by the Courts below---Re-appraisal of evidence---Jurisdiction of Supreme Court---Scope--Plaintiff being a sub-contractor of the defendant claimed to have completed his contractual obligation and asserted that the defendant despite receipt of whole amount of the project had not paid his amount-Trial Court decreed the suit in favour of the plaintiff and judgment and decree passed by Trial Court was maintained by High Court---Plea raised by the defendant was that the plaintiff failed to complete his work assigned under the contract---Validity---Plaintiff had proved its claim by producing cogent and concrete oral evidence duly supported with various documents which could not be rebutted by the defendant---Question as to whether the work assigned to plaintiff had been completed or not being a question of fact had been determined by Trial Court after appreciating the evidence with diligent application of mind determination whereof had been affirmed by High Court which being unexceptionable could not be reversed by Supreme Court without sufficient lawful justification which was lacking in the present case--Supreme Court could not undertake the task of re-appraisal of evidence unless there was substantial departure from settled principles concerning appreciation of evidence---Supreme Court would not interfere in concurrent findings of fact save in exceptional circumstances which were not available in the present case---Supreme Court, ordinarily, does not interfere in the conclusion of High Court which appears to be based upon adequate evidence both oral as well as documentary---Defendant failed to point out any jurisdictional flaw, error or misreading/non-reading of evidence on the basis whereof the conclusion arrived at by the Trial Court duly concurred by High Court being well based could be reversed---Appeal was dismissed.
Abdul Majid and others v. The State 1971 SCMR 31; British India Steam Navigation Co. Ltd. v. Abdul Razak Abdul Kader PLD 1967 SC 68, Shamshad Ali Shjah and others v. Syed Hassan Shah and others PLD 1964 SC 143; Sarfaraz Ali Khan v. Crown PLD 1951 FC 41; Muhammad Sharif v. Abdul Majid 1986 SCMR 190; Mst. Sadiq Jan v. Muhammad Rashid and others 1985 SCMR 860; Siraj Din v. Naseeruddin and another 1977 SCMR 511; Jalal alias Jalla and 4 others v. The State 1972 SCMR 273; Md. Anwarullah Mazumdar v. Taming Bibi and 5 others 1971 SCMR 94; Safdar Muhammad and another v Akram and others 2002 SCMR 807 and Khair Din and others v. Ch. Qudrat Ullah 1986 SCMR 763 ref.
Sardar Liaqat Ali, Advocate Supreme Court and Anwar H. Mir, Advocate-on-Record (absent) for Appellant.
Raja M. Akram, Senior Advocate Supreme Court and Sardar M Asmatullah, Advocate-on-Record for Respondent.
Date of hearing: 23rd January, 2004.
2004 S C M R 1783
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J. and Abdul Hameed Dogar, J
SHAHZADO SHAH through Legal heirs and another- Petitioners
Versus
M. SARDARO and 4 others---Respondents
Civil Petition No.302-K of 2002, decided on 24th June, 2004.
(On appeal from the judgment dated 14-1-2002 of the High Court of Sindh, Hyderabad Circuit Bench, passed in Revision Application No.244 of 1999).
Islamic Law---
----Inheritance---Sect---Proof---Sunni or Shia sect of deceased Deceased left a childless widow and brother---Plea of brother was that he to the exclusion of childless widow was entitled to inherit whole land left by deceased belonging to Shia Sect---Proof---Burden to prove such plea was lying on brother---Widow was still receiving family pension of deceased as supported by an entry made in Pension Book---Mutation of land sanctioned in accordance with Sunni Personal Law had not been challenged by brother in Revenue hierarchy---Widow had applied for partition of land and notice had been issued to brother---Brother had not produced any convincing evidence that deceased belonged to Fiqa Jafria---Brother and his witness in their statements in Court had shown ignorance about the manner in which funeral ceremonies of deceased had been conducted---Oral and documentary evidence produced by widow showed that deceased was Sunni by Sect and his funeral ceremonies had been conducted in accordance with Sunni Sect ---Pensionary documents and entry in Revenue Record had proved that widow was not divorced---No body had raised objection upon right of inheritance of widow at the time of attestation of mutation in Jalas-e-Aam in village of deceased---Brother had failed to establish his case in circumstances.
Abdul Rahim Kazi, Advocate Supreme Court for Petitioners.
Respondent No. 1 in person.
Nemo for Respondents Nos.2 to 5.
Date of hearing: 24th June, 2004.
2004 S C M R 1786
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J. and Abdul Hameed Dogar, J
Mst. ZAINAB through Attorney---Petitioner
Versus
Mst. MUNI and others---Respondents
Civil Petition No. 1016-K of 2002, decided on 21st June, 2004.
(On appeal from the judgment dated 26-8-2002 of the High Court of Sindh Bench at Hyderabad, passed in Revision Application No. 138 of 1987).
(a) Specific Relief Act (I of 1877)---
----Ss. 42 & 54---Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss. 10 & 25---Civil Procedure Code (V of 1908), Ss.9 & 11---Constitution of Pakistan (1973) Art.185(3)---Suit for declaration and injunction---Jurisdiction of Civil Court ---Res judicata principles of---Evacuee property---Allotment order passed by Settlement Commissioner in favour of defendant was challenged by plaintiff in revision before same authority, then before the High Court in Constitutional petition and Letters Patent Appeal, but failed---Suit filed by plaintiff thereafter was decreed by Trial Court and upheld by Appellate Court, but was dismissed by High Court in revision--Validity---First round of litigation on dismissal of Letters Patent Appeal and for non-filing of petition for leave to appeal before Supreme Court had attained finality---Plaintiff was not justified to re-start second round of litigation by invoking jurisdiction of Civil Court, which was barred under S.25 of Displaced Persons (Compensation and Rehabilitation) Act, 1958---Section 9 of C.P.C., also bars jurisdiction of Civil Court to try suits of civil nature, where their cognizance is expressly or impliedly barred---Issue involved in suit and previous litigation was same, which had been finally decided upto level of High Court, thus, principles of res judicata were fully attracted thereto---Supreme Court dismissed petition and refused leave to appeal.
Abdul Majid and others v. Abdul Ghafoor Khan and others PLD 1982 SC 146 ref.
(b) Civil Procedure Code (V of 1908)---
----S.9---Jurisdiction of Civil Court--Scope---Civil Court would have jurisdiction to try all suits of civil nature, excepting suits, cognizance of which either expressly or impliedly was barred.
Abdul Majid and others v. Abdul Ghafoor Khan and others PLD 2982 SC 146 fol.
Ghulam Qadir Jatoi, Advocate Supreme Court for Petitioner.
A.A. Siddiqui, Advocate-on-Record for Respondents Nos. 1 to 5.
Nemo for Respondents Nos.6 to 8.
Deputy Advocate-General Sindh oh Court Notice (absent).
Date of hearing: 21st July, 2004.
2004 S C M R 1790
[Supreme Court of Pakistan]
Present: Tanvir Ahmed Khan and Khalil-ur-Rahman Ramday, JJ
GHULAM AHMAD HUSSAIN and others---Petitioners
Versus
FAISAL FAROOQ and others--Respondents
Civil Petitions for Leave to Appeals Nos.2003-L and 2018-L of 2000, decided on 25th April, 2003.
(On appeal from the consolidated judgment, dated 1-6-2000 passed by the Lahore High Court, Lahore in Civil Revision No.1589/1999 and W. P. No. 19170 of 1999).
Constitution of Pakistan (1973)---
----Art. 185(3)--Petition for leave to appeal---Raising of new plea--Effect---Plea raised by the petitioners had never been taken upto High Court---Such plea was a new factual controversy and the same could not be permitted to be made for the first time before Supreme Court especially when no issue had ever been framed on such a question and when such a stance had never been taken before any Court up to High Court---Leave to appeal was refused.
Malik Noor Muhammad Awan, Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing: 25th April, 2003.
2004 S C M R 1792
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Tassaduq Hussain Jilani, JJ
MUHAMMAD AMIN ---Appellant
Versus
THE STATE---Respondent
Criminal Appeal No.608 of 2000, decided on 9th August. 2004.
(On appeal from the judgment, dated 24-5-2000 passed by Lahore High Court, Lahore in Criminal Appeal No.672 of 2000).
(a) Penal Code (XLV of 1860)---
----S. 191---Offence of perjury---Primary elements highlighted.
The primary elements of the offence are (a) that a person is legally bound by oath or by an express provision of law to state the truth; and (b) that he knowingly makes a statement, which is false or which he believes is not true.
(b) Penal Code (XLV of 1860)---
----S. 191---Criminal Procedure Code (V of 1898), S.161---Contradiction between statements of witness made earlier before police and later in Court---Effect---Witness could not be charged under S.191, P.P.C., for making contradictory statement while appearing in Court, unless he failed to reconcile true statement---Always open to a witness to correct himself in judicial proceedings, but such correction must be immediate and prompt---Witness had locus poenitentiae to correct himself, which would not amount to perjury---Witness making statement under S.161, Cr.P.C., could resile therefrom, if he wanted to come out with a truth.
Ganduri Joseph Tangaraj v. The State AIR 1965 Andh. Pra.402 and Hit Narayan Singh v. Emperor AIR 1926 Pat.517 rel.
(c) Penal Code (XLV of 1860)---
----Ss. 191 & 193---Criminal Procedure Code (V of 1898), Ss.161 & 476---Appreciation of evidence---Charge against witness was of having resiled during trial of a case from his report prepared during inquiry of case---Explanation of witness was that he prepared such report under influence of Investigating Officer---Trial Court convicted and sentenced witness and High Court dismissed his appeal---Validity---Accused witness was signatory to report of Technical Committee---Burden was on prosecution to prove that statement of accused-witness in Court was false and that earlier report signed by him was correct---Prosecution had not proved earlier report to be correct---Such report was prepared during inquiry preceding to registration of case, thus, its value was not more than that of a report submitted or statement made by a prosecution witness under S.161,Cr.P.C.---Evidence on record showed that such report was prepared by the Department---Prosecution had not challenged such statement of accused-witness ---Nothing in evidence to show that accused-witness under law was bound to give such report---Witness making statement under S.161, Cr.P.C. could resile there from, if he wanted to come out with a truth---Trial Court and High Court- had not appreciated explanation of witness--Original case having not been proved had ended in acquittal and State had not filed any appeal---Supreme Court set aside impugned judgments and acquitted accused-witness of charge under S.193, P.P.C.
Ganduri Joseph Tangaraj v. The State AIR 1965 Andhra Pradesh 402 and Hit Narayan Singh v. Emperor AIR 1926 Pat. 517 rel.
Ahmad Sayeed Kirmani, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record (absent) for Appellant.
Dil Muhammad Tarar, Advocate Supreme Court for Advocate General, Punjab for the State.
Date of hearing: 9th August, 2004.
2004 S C M R 1798
[Supreme Court of Pakistan]
Present: Mian Muhammad Ajmal and Sardar Muhammad Raza Khan, JJ
Qazi SHAMSUR REHMAN and another---Petitioners
Versus
Mst. CHAMAN DASTA and others---Respondents
Civil Petition No.46-P of 2002, decided on 20th July, 2004.
(On appeal from the judgment dated 3-12-2001 passed by the Peshawar High Court, Peshawar in Civil Revision No.382 of 2000).
(a) Provincially Administered Tribal Areas (Nifaz-e-Nizam-e-Shariah) Regulation (II of 1994)------
-------Ss. 5 & 7---Provincially Administered Tribal Areas (Nifaz-e-Nizam-e-Shariah) Rules, R.3(8)---Provincially Administered Tribal Areas Civil Procedure (Special Provision) Regulation (II of 1975), S.3(2-C)--Constitution of Pakistan (1973), Art.185(3)---Trial of suit under Provincially Administered Tribal Areas Civil Procedure (Special Provision) Regulation, 1975 even after promulgation of Provincially Administered Tribal Areas (Nifaz-e-Nizam-e-Shariah) Regulation, 1994---Judgment of Trial Court dismissing suit was upheld by Appellate Court---High Court in revision remanded case to Trial Court for its disposal under Regulation 11 of 1994---Validity---Trial Court had jurisdiction to adjudicate upon. subject-matter of the suit---Objection qua procedure had not been raised by any party before Trial Court, Appellate Court or High Court---High Court should not have suo Motu taken up such objection---Supreme Court accepted appeal, set aside impugned judgment and remanded case to High Court for decision on merits.
Muhammad Swaleh's case PLD 1964 SC 97 and Sir Zafrullah Khan's case PLD 1964 SC 865(e) ref.
(b) Civil Procedure Code (V of 1908)-----
----S. 99---Procedural irregularity committed by Court in exercise of jurisdiction---Effect---Every irregularity or illegality in exercise of jurisdiction would not render order of Court void and without jurisdiction---Party aggrieved of such irregularity must further show that there was such violation of statutory provision, which rendered proceedings coram non judice---Procedural irregularity could not be allowed to stand in the way of justice, unless same had caused a serious miscarriage of justice.
Muhammad Swaleh's case PLD 1964 SC 97 fol.
(c) Administration of justice---
---- Procedural defect---Non-raising of such objection-- -Effect--Procedural defect should be closely linked to prejudice caused thereby--Party so prejudiced must himself raise such objection---Where party does not raise any objection, then Court should not do so suo Motu --- Civil Procedure Code (V of 1908), S.99.
Sir Zafrullah Khan's case PLD 1964 SC 865(e) fol.
(d) Civil Procedure Code (V of 1908)---
----Ss. 96, 99, 102 & 115---Irregularity in procedure committed by Court in exercise of jurisdiction---Effect---Where question of jurisdiction was not disputed, then mere irregularity in procedure; unless objected to by aggrieved party or same resulted into miscarriage of justice, should not be taken notice of by Appellate Court and Revisional Court suo Motu.
(e) Provincially Administered Tribal Areas (Nifaz-e-Nizam-e-Shariah) Regulation (II of 1994)-----
----S. 7---Reference of dispute to mediator---Scope---Unless both parties initiated for appointment of mediator, Court would not necessarily follow provision of S.7 of Provincially Administered Tribal Areas (Nifaz-e-Nizam-e-Shariah) Regulation, 1994, merely because law provided for same.
(f) Provincially Administered Tribal Areas (Nifaz-e-Nizam-e-Shariah) Regulation (II of 1994)-----
----S. 7---Reference of dispute to mediator after recording of evidence--Scope---Reference could be made at initial stage, but not when evidence of plaintiff stood recorded and few witnesses of defendant had also been examined---Such being not an initial stage, rather the final stage by all means, no mediation could be resorted to.
(g) Provincially Administered Tribal Areas (Nifaz-e-Nizam-e-Shariah) Regulation (II of 1994)---
----S. 7---Provincially Administered Tribal Areas (Nifaz-e-Nizam-e-Shariah) Rules, R.3(8)---Provincially Administered Tribal Areas Civil Procedure (Special Provision) Regulation (II of 1975), S.3(2-C)--Reference of matter to mediator at initial stage while Government and its functionaries were party to suit---Scope---No such reference could be made to mediators under Provincially Administered Tribal Areas Civil Procedure (Special Provision) Regulation, 1975 as well as Provincial Administered Tribal Areas (Nifaz-e-Nizam-e-Shariah) Regulation, 1994.
M. Sardar Khan, Senior Advocate-5upreme Court with Tasleem Hussain, Advocate-on-Record for Petitioners.
Syed Safdar Hussain, Advocate-on-Record for Respondent No.1.
Nemo for other Respondents.
Date of hearing; 20th July, 2004.
2004 S C M R 1803
[Supreme Court of Pakistan]
Present: Munir A. Sheikh and Faqir Muhammad Khokhar, JJ
MUHAMMAD RAMZAN---Petitioner
Versus
ABDUL GHANI (deceased) through legal heirs and others---Respondents
Civil Petition No. 2056/L of 2000, decided on 8th May, 2003.
(On appeal from the order. dated 3-7-2000 of the Lahore High Court, Multan Bench, passed in Civil Revision No. 564 of 1986).
Punjab Pre-emption Act (I of 1913)---
----S. 21---Qanun-e-Shahadat (10 of 1984), Art.114---Right of preemption, exercise of---Principle of estoppel---Applicability---Raising of new plea---Effect---Concurrent findings of facts by the Courts below--Contention of the vendee was that the pre-emptor had waived his right of pre-emption as at the time of sale the pre-emptor had declined to purchase the land---Trial Court decreed the suit in favour of the preemptor ---Judgment and decree passed by the Trial Court was maintained by Appellate Court as well as by High Court---Validity---Fact of refusal to purchase suit-land by pre-emptor was not stated in written statement of vendee and it appeared that improvement was made to justify grounds of waiver by the vendor and vendee himself---All three Courts below on proper and. elaborate appraisal of evidence had recorded concurrent findings of facts that waiver of right of pre-emption had not been proved ---Pre-emptor was the first paternal cousin of the vendor, therefore, it was rightly held that he had superior right of preemption---Findings of the Courts below did not suffer from misreading or non-reading of any material piece of evidence on record to justify interference by Supreme Court---Leave to appeal was refused.
Sardar Nazar Hussain Dogar, Advocate Supreme Court for Petitioner.
Nemo for Respondents.
Date of hearing: 8th May, 2003.
2004 S C M R 1805
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmad, C.J. Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ
ARIF SHARIF---Petitioner
Versus
CHAIRMAN, NAB---Respondent
C. P. Nos. 1264-L and 1265 of 2003, decided on 12th June, 2003.
(On appeal from the order, dated 26-3-2003 of the Lahore High Court, in Writ Petitions Nos.587and 588 of 2003).
(a) Criminal Procedure Code (V of 1898)---
----S. 265-K---Acquittal of accused---Application for---Effect of--Accused had a legal right to file application for his acquittal under S.265-K, Cr.P.C. and that would not hold the hands of the Court to proceed with the trial.
(b) Criminal Procedure Code (V of 1898)---
----S. 497(5)---Bail---Absence of accused---Cancellation of bail---Trial Court, in case of deliberate absence of accused, could very well look into the matter by canceling the bail at any stage.
(c) National Accountability Ordinance (XVII of 1999)-----
----S. 24---Constitution of Pakistan (1973), Art.185---Appeal before Supreme Court---Accused, under provisions of S.24 of National Accountability Ordinance, 1999, could not be detained for the purposes of investigation/inquiry for a period exceeding 90 days and for every remand, reasons had to be recorded in that respect---Accused in the present case was in continuous detention over a period of 25 months--Reference though had been filed after about two years from arrest of accused, but no progress had taken place towards the conclusion of trial of accused despite lapse of a considerable time---Accused could not be detained for indefinite period---Case being fit warranting interference of Supreme Court, petition filed by accused was converted into appeal and allowed by Supreme Court directing that accused be, released on bail.
Ashtar Ausaf Ali, Advocate Supreme Court for Petitioner.
Muhammad Baseer Qureshi, Advocate Supreme Court and M.S Khattak, Advocate-on-record for NAB.
Date of hearing: 12th June, 2003.
2004 S C M R 1808
[Supreme Court of Pakistan]
Present: Hamid Ali Mirza and Sardar Muhammad Raza Khan, JJ
AYYAZ AHMED ---Petitioner
Versus
ALLAH WASAYA and others---Respondents
Criminal Petition No. 738-L of 2001, decided on 11th August, 2004.
(On appeal from the judgment, dated 8-11-2001 passed by the Lahore High Court, Multan Bench, Multan in Criminal Appeal No.272 of 1996).
(a) Penal Code (XLV of 1860)-----
----Ss. 302 & 436---Criminal Procedure Code (V of 1898), S.544-A--Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.4 & Sched.---Appreciation of evidence---Judicial confession---Unseen occurrence of setting ablaze a coaster and burning to death its conductor sleeping therein---None was named in F.I.R.---Case of prosecution was based on motive, extra judicial confession and judicial confession of both the accused---Motive was not plausible---Extra-judicial confession was a padded evidence---Evidence against accused was judicial confession, wherein they had confessed of having set ablaze coaster due to strained relations with complainant, but were not aware of conductor sleeping therein---Solitary judicial confession, if made basis for conviction, had to be relied upon in toto without any pick and choose---Accused had not only caused a total damage to coaster, but had killed a man---High Court had rightly set aside conviction under S.320, P.P.C., but had ignored to award compensation under mandatory provisions of 5.544-A, Cr.P.C.--Supreme Court in addition to sentence of imprisonment awarded by High Court sentenced accused to pay compensation under. S.544-A, Cr.P.C. collectively or individually of a sum of Rs.4 lac for damaging coaster to complainant, and to pay compensation of Rs.2,50,000 individually to legal heirs of deceased.
(b) Confession---
----Judicial confession---Validity---Solitary judicial confession, if made basis for conviction, must be relied upon in toto without any pick and choose.
Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Petitioner.
Talib Rizvi, Advocate Supreme Court for Respondents.
M. Hanif Khatana, Additional Advocate-General for the State.
Date of hearing: 11th August, 2004.
2004 S C M R 1811
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Syed Deedar Hussain Shah, JJ
HOUSE BUILDING FINANCE CORPORATION and others---Appellants
Versus
Syed MUHAMMAD ALI GOHAR ZAIDI---Respondent
Civil Appeals Nos. 1681,and 1682 of 2003, heard on 6th May, 2004.
(a) House Building Finance Corporation Service Regulations, 1957---
----Regln. 11---Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Civil Servants Act (LXXI of 1973), S.17---General Clauses Act (X of 1897), S.24-A---Limitation Act (IX of 1908), S.14---Specific Relief Act (I of 1877), Ss.42 & 54---Constitution of Pakistan (1973), Art.212(3)--Termination of service---Employee initially sought relief from Civil Court, but failed upto Supreme Court, which observed that remedy of employee was before Service Tribunal---Appeal filed by employee before Tribunal was resisted by Corporation as being time-barred---Tribunal accepted appeal by reinstating employee in service, but declined to grant back benefits while treating intervening period as leave of the kind due-Supreme Court granted leave to appeal to consider, questions whether in case of abatement on insertion of S.2-A in Service Tribunals Act, 1973 on 10-6-1997, period of limitation 'to file appeal before Tribunal would commence with effect from such date; whether Service Tribunal had erred in holding that S.14 of Limitation Act, 1908 was attracted in such a case, as it is well-settled principle of law that where relationship between employee and, employer is regulated under principle of "Master and Servant", then remedy is to file suit for damages only, and that filing of suit for declaration and permanent injunction by employee and pursuing same upto Supreme Court was not only misconceived, but also vexatious; whether Service Tribunal had failed to apply provisions of S.24-A of General Clauses Act, 1897 and S.17 of Civil Servants Act, 1973 while not granting full back benefits on reinstatement of employee; and whether Service Tribunal had discriminated against employee by granting back benefits to other employees on reinstatement in service in other appeals from date of their reinstatement.
(b) House Building Finance Corporation Service Regulations, 1957---
----Regln. 11---Service Tribunals Act (LXX of 1973), Ss.2-A, 4 & 5---Civil Servants Act (LXXI of 1973), S.17---Specific Relief Act (I of 1877), Ss.42 & 54---Limitation Act (IX of 1908), Ss.5 & 14--Constitution of Pakistan (1973), Art.212(3)---Termination of service--Employee initially sought relief through Civil Court, but failed upto Supreme Court, which observed that his remedy was before Service Tribunal---Appeal filed by employee before Service Tribunal was resisted by Employer as being time-barred, but Service Tribunal accepted the same---Validity---Provision of S.2-A of Service Tribunals Act, 197 5 being entirely distinct and unique in nature, there was utter uncertainty and confusion in legal circles as well as Courts as to its real and legal effect---Service Tribunals and Courts for long time were bona fidely of the view that such provision being substantive in nature would be applicable prospectively and not affect pending litigation---Position was authoritatively clarified after passing of judgment to case of Aftab v. K.E.S.C. 1999 SCMR 197 that all pending suits, appeals and petitions would stand abated and affected persons shall have remedy before Service Tribunals---Service Tribunal was competent to condone delay for sufficient reasons in appropriate cases---View of Service Tribunal was that employee had been agitating for enforcement of his right before different forums and no objection as to jurisdiction was even taken by Employer before any forum, where litigation went on for about one decade; and that legal position was so fluid and conflicting that neither counsel for parties nor Courts were certain as to true impact of provisions of S.2-A of Service Tribunals Act, 1973---Employee, after abrupt termination of his service, had been running from pillar to post for redress of grievance and no element of malice or negligence on his part had been spelt out from circumstances of the case---Service Tribunal had exercised discretion in view of peculiar facts and circumstances of appeal---Supreme Court dismissed appeal.
Abdul Wahid v. Sirajuddin 1998 SCMR 2296 and Sajawal Khan v. Wali Muhammad 2002 SCMR 134 ref.
Aftab Ahmed v. Karachi Electric Supply Corporation 1999 SCMR 197 rel.
(c) Service Tribunals Act (LXX of 1973)------
----Ss. 4 & 5---Limitation Act (IX of 1908), Ss.5 & 14---Civil Procedure Code (V of 1908), S.141---Appeal---Jurisdiction of Service Tribunal to condone delay and record evidence as a fact finding forum---Scope--Applicability of provisions of Ss.5 & 14 of Limitation Act. 1908 to proceedings in appeal before Service Tribunal being of original nature--Principles stated.
In terms of section 5 of Service Tribunal Act, the Tribunal has been vested with the authority to confirm, set aside, modify or vary an order appealed against. Undoubtedly, Tribunal is also competent to condone delay for sufficient cause in appropriate cases.
Technically, the provisions of section 14 of Limitation Act are restricted to suits, but the fact remains that the broad principles of this provision can always be extended to proceedings of civil nature before a Court or Tribunal with a view to secure the ends of justice and to suppress the mischief.
Essentially proceedings before the Tribunal though known as an appeal, are in the nature of original proceedings, as the Tribunal is a Tribunal of fact finding as well as exclusive forum deciding questions of law in relation to a departmental order where evidence of the parties can always be recorded by the Tribunal like a Court of original jurisdiction.
Assuming that the proceedings before the Tribunal are in the nature of appeal, broader principles of the provisions of section 14 (ibid) can always be invoked for fostering the ends of justice and preventing the mischief. These principles can always be called in aid for exercise of power under section 5 of Limitation Act, which permits a Court and the Tribunal to condone the delay for sufficient cause.
(d) Service Tribunals Act (LXX of 1973)-----
----S. 4---Constitution of Pakistan (1973), Art.212(3)---Appeal--Condonation of delay by Service Tribunal---Validity---Supreme Court would always be slow and reluctant to interfere with exercise of discretion by Service Tribunal in' absence of extraordinary circumstances.
(e) House Building Finance Corporation Service Regulations, 1957-----
----Regln. 11---Service Tribunals Act (LXX of 1973), S.4---Civil Servants Act (LXXI of 1973), S.17---General Clauses Act (X of 1897), S.24-A---Constitution of Pakistan (1973), Arts. 18 & 212(3)--Termination of service---Service Tribunal accepted appeal by reinstating employee in service, but without assigning any reason declined to grant him back benefits by treating intervening period as leave of the kind due---Validity---Mandate of S.24-A of General Clauses Act, 1897 clearly stipulated recording of reasons for every decision---Employee had remained out of job for fault on his part for 12 years till his reinstatement---Not conceivable that employee would have 12 years period of leave at his credit so to suitably compensate him for such loss---Tribunal had discriminated against employee by granting back benefits to other employees on reinstatement in service in other appeals from date of their reinstatement---Supreme Court by allowing appeal set aside impugned order to' the extent of withholding of back benefits and treatment of intervening period as leave of the kind due by allowing appeal and remanded case to Tribunal for reconsideration of matter and assigning plausible and convincing reasons therefore.
M.M. Aqil Awan, Advocate Supreme Court and Miss Wajahat Niaz, Advocate-on-Record for Appellants.
M.L. Shahani, Advocate Supreme Court for Respondents.
Date of hearing; 6th May, 2004.
2004 S C M R 1820
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Mian Muhammad Ajmal, JJ
NIGHAT YASMIN----Petitioner
Versus
PAKISTAN INTERNATIONAL AIRLINES CORPORATION, KARACHI and another---Respondents
Civil Petition No.547/K of 2003, decided on 8th July, 2004.
(On appeal from the judgment of the Federal Service Tribunal, dated 3-6-2003 passed in Appeal No.221-(K)CE/2003).
(a) Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985---
----Reglns. 25 & 26---Service Tribunals Act (LXX of 1973), S.4--Constitution of Pakistan (1973), Art.212(3)---Retirement of Crew Welfare Officer (Pay Group-V) on completion of 25 years of service by order of Administration Manager Flight Operations---Service Tribunal dismissed appeal of such Officer---Validity---Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985 were not statutory in nature---Regulations, 1985 framed by Board of Directors of Corporation were binding on Corporation, which could not be arbitrarily deviated nor same could be unilaterally violated for being in the nature of a contract binding on the parties---Regulation, 1985 did not permit Corporation to retire an employee at its whims, except Air Hostesses on completion of 25 years---Corporation was not competent in law to pass such order---Administration Manager Flight Operations himself was an employee in Pay Group IX was not competent to terminate services of an employee working in Pay Group-V---Only Director Administration was competent to terminate services of employees up to Pay Group-VII---Order in the present case, had not been issued after obtaining approval of Director Administration---Supreme Court accepted appeal, set aside impugned judgment and directed reinstatement of the Officer from date of her termination with all back benefits within specified time.
(b) Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985------
----Preamble---Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985---Nature' of---Regulations, 1985 framed by Board of Directors of Corporation were not statutory in nature, but were in the nature of a contract binding on the parties--Corporation, thus, could not arbitrarily deviate from and unilaterally violate Regulations, 1985.
Petitioner in Person.
Muhammad Arif Khan, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondents.
Date of hearing: 8th July, 2004.
2004 S C M R 1824
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ
THE STATE through Prosecutor-General, National Accountability Bureau---Petitioner
Versus
Agha WAZIR ABBAS and another---Respondents
Cr. Petitions Nos.21 and 22/K of 2003, heard on 13th April, 2004.
National Accountability Ordinance (XVIII of 1999)-----
----S. 10---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal of accused by High Court---Huge loss had been caused to Government Exchequer---High Court while disposing of the matter on merits first ought to have examined the Handwriting Expert before reaching the conclusion of glaring difference between the two signatures---Observation of the High Court to this effect, ipso facto, was not enough to discard the prosecution evidence---Expert evidence was always of value where primarily the question of scientific or high knowledge was involved---Issue must have been decided on the basis of concrete evidence and not on presumption---Evidence of Handwriting Expert, no doubt, would be just an opinion, but in the facts and circumstances of the case the same should have been obtained before conclusive finding in the aforesaid terms---Petitions for leave to appeal were consequently converted into appeals and were allowed---Impugned judgment was set aside and the case was remanded to Trial Court to record the evidence of the Handwriting Expert on the point of disputed and admitted signatures of the accused and to deliver fresh judgment after hearing the parties.
Akhlaq Ahmed Siddiqui, Advocate-on-Record for the Petitioner.
M. Ilyas Khan, Advocate Supreme Court and Ms. Wajahat Niaz, Advocate-on-Record for Respondents.
Date of hearing: 13th April, 2004.
2004 S C M R 1828
[Supreme Court of Pakistan]
Present: Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ
Mst. FAHEEDA---Petitioner
Versus
GOVERNMENT OF SINDH through Secretary Health and 3 others---Respondents
Civil Petition No.800-K of 2002, decided on 21st July, 2004.
(On appeal from the judgment of High Court of Sindh, Karachi dated 17-5-2002 passed in Constitution Petition No.D-187 of 2002).
(a) Educational institution---------
---- Admission in B. D. S. ---Revising of merit list---Rechecking of papers after preparation of provisional merit list---Hardship case---After preparation of provisional merit list and issuance of eligibility certificate, the marks of candidate were reduced from 153 to 149 and admission to her was denied by the authorities---Plea raised by the Authorities was that answer to one question in the Master Key used for the test was incorrect, therefore, the result and merit list was revised accordingly ---Validity--Though provisional result was always subject to correction and scrutiny but such correction was confined only to the extent of unmarked answer or mistake in counting and totaling of marks inside the answer book or on the title page and such other mistakes, but did not include reevaluation of marks---Examination of answer book fur limited purpose of re-checking to rectify such mistakes was always possible under the law but re-examination of the answer book for re-evaluation of marks after announcement of result to the disadvantage of a candidate was not permissible---Manner in which the Authorities had changed the merit list after issue of eligibility certificate affecting the right of admission of candidate was not justified and fair to be approved- --Authorities, before undertaking the exercise of re-examination of answer to the relevant question and making change in the merit list had neither informed the candidates who were being affected nor bothered to verify from any other independent and reliable source to ascertain whether the answer to the disputed question given in the Master Key was actually incorrect and the answer suggested by the examinee was generally being accepted as correct answer to the said question---Except the oral assertion of the Authorities based on the opinion of examinee nothing was brought on record to justify the re-examination of answer book and to revise the merit list pre judical to the right of candidates---Judge in the Chambers of High Court, having not attended to such important question, had failed to render the judgment in the case strictly in accordance with law---Supreme Court having considered it a case of hardship, while maintaining the judgment, disposed of the instant petition with the direction that the candidate would be entitled to apply for admission in 1st year B.D.S. Course in the current academic year against the reserved seats from where the candidate had initially applied---Supreme Court also directed that the candidate would be treated at par with other candidates in the matter of admission in the current academic year, without any discrimination---Supreme Court further directed that the entitlement of the candidate would be determined purely on the basis of merits and strictly in accordance with law---Supreme Court restrained to treat the present case as precedent as it was a case of its own nature---Petition was disposed of accordingly.
(b) Education institution---
---- Duty of public functionaries in preparing results of candidates--Administration of justice---Admission in B.D.S.---Revising of merit list---rechecking of papers after preparation of provisional merit list--After preparation of provisional merit list and issuance of eligibility certificate, the marks of candidate were reduced from 153 to 149 and admission to her in college was denied---Plea raised by the Authorities was that answer to one question in the Master Key used for the test was incorrect, therefore, the result and merit list was revised accordingly--Validity---Public functionaries were not vigilant and careful in dealing with such sensitive matter concerning with the career of young people and did not realize that a slight negligence on their part might cause irreparable loss of precious years of academic life of a person---It was difficult to change or adopt a profession at a late stage and if a person was restrained from acquiring requisite qualification for a profession in an unjustified manner, it would amount to preventing him from availing the Constitutional right of entering upon lawful profession of his choice--Functionaries while dealing with such matters, must not act in a manner which was not in consonance with the principles of justice, equity and fair play and similarly the delay in disposal of such matters by the High Court within reasonable time might cause injustice which was not desirable.
Akhlaq Ahmed Siddiqui, Advocate on Record for Petitioner.
Dr- Qazi Khalid Ali, Additional Advocate-General, Sindh for Respondents Nos. 1 and 2.
Ch. Jamil Ahmed, Advocate Supreme Court and Raja Sher Muhammad Khan, Advocate-on-Record for Respondent No.3.
Nemo for Respondent No.4.
Date of hearing: 21st July, 2004.
2004 S C M R 1833
[Supreme Court of Pakistan]
Present: Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ
NAWAB---Petitioner
Versus
GHULAB and 4 others---Respondents
Civil Petition No. 1619 of 2002, decided on 21st June, 2004.
(On appeal from the judgment, dated 29-5-2002 by the Lahore High Court, Rawalpindi Bench Rawalpindi passed in Civil Revision No.326 of 1994).
Specific Relief Act (I of 1877)---
----S. 42---West Pakistan Consolidation of Holdings Ordinance (VI of 1960), S.26---Constitution of Pakistan (1973), Art. 185(3)---Consolidation of land---Bar of jurisdiction of Civil Courts---Plaintiff sought declaration regarding land settled in consolidation proceedings---Plaintiff being dissatisfied with the order of Additional Commissioner (Consolidation), instead of invoking jurisdiction of Board of Revenue, in the matter arising out of consolidation proceedings, filed civil suit---Trial Court dismissed the suit being barred under S.26 of West Pakistan Consolidation of Holdings Ordinance, 1960---Judgment and decree passed by Trial Court was maintained by Appellate Court as well as High Court---Plea raised by the plaintiff was that the suit-land was different from the one which was subject-matter of consolidation proceedings--Validity---Plaintiff failed to show any evidence on record in support of the contention that the dispute between the parties arising out of consolidation, related to a different land---Plaintiff had neither taken such plea before subordinate Courts and High Court at any stage, nor he was able to show from record that the dispute between the parties in the civil suit pertained to a land which was not subject-matter of litigation between them before the Revenue Authorities---High Court had rightly held that due to the bar of jurisdiction contained in S.26 of West Pakistan Consolidation of Holdings Ordinance, 1960, the civil suit was not maintainable---Judgment of High Court being not suffering from any illegality, did not call for interference of Supreme Court---Leave to appeal was refused.
Muhammad Yousaf v. Khan Bahadur 1992 SCMR 2334 ref.
Muhammad Younis Bhatti, Advocate Supreme Court and Ijaz Muhammad Khan, Advocate-on-Record (absent) for Petitioner.
Nemo for Respondents.
Date of hearing: 21st June, 2004.
2004 S C M R 1836
[Supreme Court of Pakistan]
Present: Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ
GHULAM SARWAR---Petitioner
Versus
ALLAH YAR and 9 others---Respondents
Civil Petition No. 188-L of 2004, decided on 22nd June, 2004.
(On appeal from the judgment, dated 27-10-2003 passed by the Lahore High Court, Lahore in C.R. No.2573 of 1994).
Specific Relief Act (I of 1877)---
----S. 8---Limitation Act (IX of 1908), S.28---Constitution of Pakistan (1973), Art.185(3)---Recovery of possession---Adverse possession, plea of---Decree passed by Trial Court was set aside by Appellate Court but High Court in exercise of revisional jurisdiction restored the same and the suit was decreed---Plea raised by the defendant was that the present case was filed much before the declaration of S.28 of Limitation Act, 1908 as repugnant to Injunctions of Islam---Validity---Question of adverse possession was a pure question of fact which must be proved through cogent and convincing evidence---In absence of such evidence, the mere continuous and uninterrupted possession for any length of time, would not be sufficient to set up a title adverse to the interest of true owner---Supreme Court refrained from going into the question of limitation and extinguishment of right of original owner in the suit property without dilating upon the fundamental question relating to the adverse possession which must be continued, exclusive, uninterrupted and hostile with visible denial of the title of the true owner---Heavy onus was on the defendant to prove uninterrupted and hostile title through strong and convincing evidence but the defendant failed to discharge the-basic onus of proving the adverse possession vesting title of the land in him to the satisfaction of law---High Court had committed no jurisdictional error by upholding the decree passed by the trial Court in exercise of revisional jurisdiction under S.115, C.P.C.---Supreme Court declined to take any exception to the view of High Court regarding application of S.28 of Limitation Act, 1908---Leave to appeal was refused.
Maqbool Ahmad v. Hakoomat-e-Pakistan 1991 SCMR 2063 ref.
Muhammad Hussain Awan, Advocate Supreme Court and C.M. Lateef, Advocate-on-record (absent) for petitioner.
Malik Allah Yar, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-record (absent) for Respondents.
Date of hearing: 22nd June, 2004.
2004 S C M R 1839
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J., Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ
MEHMOOD AKHTAR---Petitioner
Versus
DISTRICT JUDGE, ATTOCK and 2 others---Respondents
Civil Petition No. 1654 of 2003, decided on 6th July, 2004.
(On appeal from the judgment, dated 11-7-2003 passed by Lahore High Court, Rawalpindi Bench in R.F.A. No.370 of 2003).
(a) Islamic Law---
---- Custody of minor---Entitlement---Principles---Right of custody of minor is not an absolute right rather it is always subject to the welfare of the minor---Court in the light of law on the subject; facts and circumstances of each case considers the question of custody on the basis of welfare of minor---There can be no deviation from the settled principle of law that in the matter of custody of minor, the paramount consideration is always the welfare of the minor---No doubt the general principle of Islamic law is that a Muslim father being the natural guardian of the minor, has the preferential right of custody of minor but such rule is always subject to the welfare of the minor which is the prime consideration in determination of the question of custody---Right of custody of minor being not an absolute right, the father or the mother as the position may be, may abandon such right---Parties at the time of their separation, voluntarily may settle the question of custody of minor.
(b) Guardians and Wards Act (VIII of 1890)---
----S. 25---Constitution of Pakistan (1973), Art.185(3)---Custody of minor---Welfare of minor---Settlement between the parties---Marriage of mother with a person stranger to the minor daughter---Parties had agreed that the custody would remain with the mother and father of the minor would pay the maintenance allowance regularly---Parties also agreed that in case the mother would marry, the custody would be handed over to the father of the minor---Mother of the minor got married and father sought custody---Guardian Judge dismissed the application filed by the father but Appellate Court allowed the appeal and handed over the custody to the father---High Court in exercise of Constitutional jurisdiction, set aside the judgment passed by Appellate Court and the judgment of Guardian Judge was restored---Plea raised by the father was. that after the marriage of mother with a stranger to the minor daughter, the welfare was with him---Validity---Courts, subject to the welfare of the minor, always determine the question of custody of minor child in the light of governing principle of Islamic law---Mere fact that the father had become entitled to get custody of minor or mother had lost the right of Hizant, was not a sole criteria to decide the question of custody of minor---In the light of law laid down by Supreme Court and the principles of Islamic law, and in the given facts and peculiar circumstances of the present case, it would not be in the interest and welfare of minor to handover her custody to father rather the welfare of minor would lie in her custody with her mother---High Court, while interfering in the matter in Constitutional jurisdiction, had rightly declared the judgment of Appellate Court, without lawful authority---Leave to appeal was refused.
Firdous Iqbal v. Shifaat Ali 2000 SCMR 838 ref.
Razzaq A. Mirza, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record (absent) for Petitioner.
Nemo for Respondents.
Date of hearing: 6th July, 2004.
2004 S C M R 1844
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J. Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ
HUSSAIN SHAH and 31 others---Appellants
Versus
GHULAM HASSAN and 92 others---Respondents
C.M.A. No. 1301 of 2004 and Civil Appeal No.428 of 2004, decided on 9th July, 2004.
(On appeal from the judgment dated 25-3-2004 passed by Peshawar High Court, Peshawar in R.F.A. No.8 of 2000).
(a) Supreme Court Rules, 1980---
--O. IV---Non-appearance of counsel---Duty of Advocate-on-record-- Principles---Non-appearance of counsel in a matter fixed before Supreme Court without any compelling reason and prior intimation, except in exceptional circumstances, is not justified and in any case, the presence of Advocate -on-record is sufficient for the purpose of disposal of a case.
(b) Specific Relief Act (I of 1877)----------
----S. 42---Civil Procedure Code (V of 1908), O.XLI, Rr.23 & 24--Declaration of title---Framing of additional issue---Remand of case---Parties were joint owners of the suit land in equal shares and belonged to a common ancestor---Trial Court dismissed the suit but High Court in exercise of appellate jurisdiction framed additional issues and remanded the case to Trial Court for deciding the case afresh after recording of further evidence---Plea raised by the defendants was that order of remand of the case by High Court was not justified---Validity---Decision on the issue relating to partition of land being dependant upon the decision of primary question regarding entitlement of parties in the property owned by their common ancestor, was not possible without determination of their right in the suit property---On the basis of available evidence, neither the correct factual position vis-a-vis the respective claims of the parties, in the suit was ascertainable, nor the disputed question of fact could be properly answered---High Court having taken notice of the deficiencies and lacunas in the evidence for the decision of fundamental questions and proper adjudication of dispute between the parties deemed it necessary to frame additional issues and rightly remanded the case to Trial Court for fresh decision after recording of evidence on those issues---Framing of additional issues and recording of further evidence was essential for effective decision of controversial pleas taken by the parties in their pleadings in the suit---Remand order, as a general rule, would not be objectionable if important and vital point, arising out of the controversy in the case had been left unattended by the Trial Court--Parties had failed to bring on record the adequate reliable evidence for giving a proper verdict on the disputed question of fact of fundamental importance in the suit---Supreme Court declined to take exception to the remand order which was in consonance with the provisions of O.XLI, Rr.23 and 24 C.P.C.---Judgment passed by High Court neither suffering from any legal infirmity or defect nor involving any substantial question of law did not call for interference of Supreme Court---Appeal was dismissed.
Syed Safdar Hussain, Advocate-on-Record for Appellants.
Mian Saadullah Jandli, Advocate Supreme Court and Fateh Muhammad Khan, Advocate-on-Record for Respondents.
Date of hearing: 9th July, 2004.
2004 S C M R 1849
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J., Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ
BAHMAN KHAN and another---Petitioners
Versus
MUHAMMAD KHAN and others---Respondents
Civil Petition No. 1438 of 2003, decided on 8th July, 2004.
(On appeal from the judgment, dated 26-5-2003 passed by Peshawar High Court, Peshawar in C R. No. 135 of 2001).
Specific Relief Act (I of 1877)---
----Ss. 8 & 42---Civil Procedure Code (V of 1908), S.115---Constitution of Pakistan (1973), Art. 185(3)---Declaration of title and possession of suit property ---Concurrent findings of fact by Courts below---Sale deed, proof of---Plaintiff sought possession of the suit property which was resisted by the defendant on the ground of being owners on the basis of sale deed in favour of their predecessor-in-interest---Defendants failed to prove the sale deed---Trial Court decreed the suit and the judgment and decree was maintained by Appellate Court as well as High Court--Validity-High Court in the light of evidence of the parties had rightly held that the concurrent findings of fact by two Courts below were well founded---Fundamental question for decision between the parties related to the question of title and High Court having dealt with the question in detail rightly dismissed the revision petition---Defendants failed to prove that either the findings of fact arrived at by the Trial Court and Appellate Court were result of misreading or non-reading of evidence or that the High Court while affirming the decree concurrently passed by two Courts below, committed any illegality calling for interference of Supreme Court---Even if the findings of Courts below on a question of fact were erroneous, the same could not be interfered with by High Court in revisional jurisdiction---Supreme Court declined to take any exception to the judgment passed by High Court---Leave to appeal was refused.
Muhammad Munir Peracha, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Petitioners.
Nemo for Respondents.
Date of hearing; 8th July, 2004.
2004 S C M R 1852
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J., Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ
SHER JANG---Appellant
Versus
DISTRICT JUDGE, ISLAMABAD and 4 others---Respondents
Civil Appeal No. 1329 of 2003, decided on 7th July, 2004.
(On appeal from the judgment, dated 3-7-2003 passed by Lahore High Court, Rawalpindi Bench in Writ Petition No. 1401 of 2003).
(a) Islamabad Rent Restriction Ordinance (IV of 2000)---
----Ss. 17 & 19---Constitution of Pakistan (1973), Art.185(3) --- Leave to appeal was granted by Supreme Court to consider; whether-the tenant be ordered to be evicted on the ground of default in the payment of rent, even though landlords did not issue notice to the tenant as required by and in the manner laid down by S.19 of Islamabad Rent Restrictions Ordinance, 2000; whether there was any inconsistency in various judgments of Supreme Court on the question of notice under S.19 of Islamabad Rent Restriction Ordinance, 2000; and whether in absence of a positive finding of contumacy the tenant had been rightly ordered to be evicted without framing and trial of issue of default on merits.
E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536; Major (Recd.) Muhammad Yousuf v. Mehraj-ud-Din and others 1986 SCMR 751 and Malik Safdar Hussain v. Lutuf Ahmad Khan and others 1997 SCMR 567 ref.
(b) Islamabad Rent Restriction Ordinance (IV of 2000)-----
----S. 19---Word owner' used in
S.19 of Islamabad Rent Restriction Ordinance, 2000---Concept---Change of ownership---Mandatory notice to tenant---Scope---In case of change of ownership either by way of sale, gift, inheritance or in any other manner, it is obligatory to send a notice to tenant through registered post and if on receipt of notice the rent due is paid within time specified therein, the tenant is not deemed to have committed any default in payment of rent---Wordowner' used in
S.19 of Islamabad Rent Restriction Ordinance, 2000, has not limited meaning and encompasses all owners of property who stand in the position of landlord and thus even without formal transfer of property, the real sons and daughters of the owner are deemed to be the owners of the property.
(c) Islamabad Rent Restriction Ordinance (IV of 2000)---
----Ss. 17 & 19---Constitution of Pakistan (1973), Art. 185(3)--Ejectment of tenant---Wilful default---Failure to give notice under S.19 of Islamabad Rent Restriction Ordinance, 2000---Landlord and tenant relationship---Proof---Landlord transferred the premises in the names of his sons who became owners of the premises ---Ejectment petition was filed against the tenant on the ground of wilful default in payment of monthly rent---Eviction order was passed by Rent Controller and the same was maintained by Appellate Court and High Court---Plea raised by the tenant was that no notice of change of ownership was given to him and he had been depositing the rent with the previous owner ---Validity--If no separate notice was given, the ejectment petition itself would be considered a sufficient notice for the purpose of S.19 of Islamabad Rent Restriction Ordinance, 2000---Supreme Court while granting leave in the present case stayed eviction of tenant and directed him to deposit the agreed rent upto the date with Rent Controller and further directed the tenant to deposit future monthly rent as per law but the tenant had not deposited the rent for the period prior to the institution of ejectment petition and thus the conduct of tenant in denying relationship of landlord and tenant and non-payment of rent as per direction of Supreme Court was contumacious---Tenant having not deposited the rent and not willingly accepting the respondents as landlords would not be entitled to any discretionary relief---Tenant failed to establish that he was not defaulter in terms of S.17 of Islamabad Rent Restriction Ordinance, 2000---High Court in exercise of Constitutional jurisdiction had rightly exercised discretion in upholding ejectment of the tenant and judgment being not against any law or principle of law, did not call for any interference---Leave to appeal was refused.
Syed Azhar Imam Rizvi v. Mst. Salma Khatoon 1985 SCMR 24, Miss Abida Riasat Rizvi v. Philomena Mathew and 4 others PLD 1994 SC 452 and Malik Safdar Hussain v. Lutuf Ahmad Khan and others 1997 SCMR 567 ref.
Ibad-ur-Rehman Lodhi, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record (absent) for Appellant.
Abdur Rashid Awan, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondents Nos.3 to 5.
Date of hearing; 7th July, 2004.
2004 S C M R 1859
[Supreme Court of Pakistan]
Present: Syed Deedar Hussain Shah and Sardar Muhammad Raza Khan, JJ
Syed MUHAMMAD UMER SHAH---Petitioner
Versus
BASHIR AHMED ---Respondent
Civil Petition No. 1609-L of 2000, decided on 8th July, 2004.
(On appeal from the judgment dated 28-4-2000 passed by the Lahore High Court, Multan Bench, Multan in Civil Revision No. 131 of 2000).
(a) Constitution of Pakistan (1973)---
----Art. 185(3)---Petition for leave to appeal---Landlord and tenant---Trial Court, the first Appellate Court as well as the High Court, in the light of evidence on record, were all of the views that no dispute had ever been referred to arbitrator and that the petitioner had forged everything fraudulently in order to usurp the house possession whereof he had been enjoying as a tenant---Supreme Court declined to interfere with the concurrent findings of fact arrived at by the three Courts, completely in accord with the evidence on record.
(b) Qanun-e-Shahadat (10 of 1984)-----
----Arts. 59---Opinion of Handwriting Expert---Contention was that the Handwriting Expert though was examined in the case, but no benefit of his statement was extended to the petitioner---Validity---Opinion of a Handwriting Expert, otherwise a weak piece of evidence, should not be allowed to prevail against strong circumstances and strong evidence giving inference altogether to the contrary---Once the petitioner had failed to prove his case on the basis of the very evidence produced by him, he could not be given the benefit of the only favourable opinion by the expert, being otherwise a weak piece of evidence.
Awan Muhammad Hanif Khan, Advocate Supreme Court with Walayat Umar, Advocate-on-Record for Petitioner.
Syed Zulfiqar Ali Bukhari, Advocate Supreme Court with Haji M. Rafi Siddiqui, Advocate-on-Record for Respondent.
Date of hearing: 8th July, 2004.
2004 S C M R 1861
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, CJ. Javed Iqbal and Abdul Hameed Dogar, JJ
REHMAT ULLAH alias RAJA---Petitioner
Versus
HOME SECRETARY, PUNJAB, LAHORE and others---Respondents
Civil Petition No. 1480 of 2004, decided on 28th June, 2004.
(On appeal from the judgment of the Lahore High Court, Multan Bench, Multan, dated 20-5-2004 passed in W.P. No.2026 of 2004).
Juvenile Justice System Ordinance (XXII of 2000)-----
----Ss. 7 & 12---Constitution of Pakistan (1973), Arts.45 & 185(3)--Juvenile offender---Commuting death sentence into life imprisonment--Pre-requisites---Determination of age of accused---Death sentence awarded to accused was confirmed by High Court and Supreme Court--Plea raised by accused was that as he was child at the time of commission of offence, therefore, in view of Notification dated 13-12-2001, the sentence of death be commuted to imprisonment for life ---Validity--Notification dated 13-12-2001 was couched in a simple and plain language and being free from any ambiguity there was no scope for its scholarly interpretation---Prior to commutation of death sentence to imprisonment for life, Provincial Governments under the Notification dated 13-12-2001 would ensure, that the age as recorded by the Trial Court entitled the condemned prisoners to such commutation---No such age was ever recorded by the Trial Court, hence the accused was not entitled to any commutation---Question of age was never agitated before the Trial Court, appellate Court as well as Supreme Court---Too late in the day to raise such a plea as at the time of occurrence, date of birth of the accused was shown as 8-3-1976 which was never challenged and thus there was no occasion for the Trial Court to get the ossification test conducted---Nothing had come on record showing that the age as recorded by the Trial Court entitled the accused to such commutation which was mandatory pre-requisite before any benefit was claimed--Judgment of High Court being free from any infirmity or illegality and well based did not warrant interference---Leave to appeal was refused.
Muhammad Munir Peracha, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 28th June, 2004.
2004 S C M R 1864
[Supreme Court of Pakistan]
Present: Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ
BASHIR AHMED SOLANGI---Appellant
Versus
CHIEF SECTRETARY, GOVERNMENT OF SINDH, KARACHI and 2 others---Respondents
Civil Appeal No.2494 of 2001, decided on 22nd July, 2004.
(On appeal from the judgment of Sindh Service Tribunal Karachi, dated 4-10-2001 passed in Appeal No.345 of 1998).
(a) Constitution of Pakistan (1973)---
----Art. 212(3)---Leave to appeal was granted by Supreme Court to consider the contention of civil servant that after his regular appointment by Public Service Commission he remained posted in Horticulture Line and was also promoted in Horticulture Line, and in three final seniority lists he was shown in Horticulture Line while none of his colleagues challenged the same for long eighteen years therefore the authorities were not legally competent to revert the civil servant in Plant Breeding Line of the Department.
(b) Civil Service---
---- Incumbent of post changing line---Principles---Incumbent of a post of a line cannot change his line without permission of competent authority---Not permissible to place a person on the strength of a line other than his own line to his disadvantage or without his consent.
(c) Sindh Service Tribunals Act (XV of 1973)---
----S. 4---Constitution of Pakistan (1973), Art.212(3)---Seniority list--Change of cadre---Principle of locus poenitentiae---Applicability---Civil servant was appointed in Plant Breeding, Agricultural Research Department of the Provincial Government fromwhere he was posted as Assistant Cotton Botanist in Agricultural Research Institute---Civil servant had remained in the Institute for eighteen years and his seniority was being maintained in the Institute---Authorities issued a notification whereby they reverted the civil servant in Plant Breeding, Agricultural Research Department---Appeal by the civil servant before Service Tribunal was dismissed---Validity---Mere initial induction in a line would not create a bar to change the line and consequently, the reversion of civil servant to Plant Breeding line on the ground that initially he belonged to that line being detriment to the valuable right accrued in his favour in the Horticulture Line, would not be - justified---If in consequence to an order passed by an authority competent to pass such an order, certain rights were created in favour of a person, such order could not be subsequently undone or withdrawn---Authority being responsible for passing of an order creating certain rights, would not be legally justified to take a turn and retrace the steps to undo the said order on the ground that it was passed in violation of rules or was a wrong order--Unless it was proved to the contrary in the rules governing a service, there could be no departure from the general rule that the change of cadre or line of promotion was neither allowed in routine nor could be claimed as of right but in exceptional circumstances and hardship cases, subject to the rule and rights of others, such change was possible---Neither the civil servant voluntarily opted for the change of line of promotion nor an express order was passed in that behalf but he, with the implied approval of the concerned authorities, continued in Horticulture Line till the date of issue of the notification of his reversion, therefore, the continuous retention of the civil servant with placement of his name in the seniority list of officers of Horticulture Line and grant of promotion and move over there would create a valuable right of enjoying the status of an officer of the strength of Horticulture line---Judgment passed by Service Tribunal and notification by the government were set aside--Appeal was allowed.
Chief Secretary v. Sher Muhammad Makhdoom PLD 1991 SC 973 ref.
(d) Locus poenitentiae, principle of-----
----Object scope and applicability---Rule of locus poenitentiae is that the power of rescinding is available to Government or relevant authorities to retrace and undo the wrong order till a decisive step is taken---Authority which had power to make an order had taken effect and certain rights had been created in favour of an individual, such an order could not be rescinded or withdrawn to the detriment of the such individual---Such is not an unfettered power to be used at any stage in any manner for undoing an order which having already taken effect, has created vested rights---Spirit of rule of locus poenitentiae is that once an order is given effect to and in consequence thereof certain rights are created in favour of a person, such rights cannot be subsequently taken away.
Pakistan v. Muhammad Himayatullah PLD 1969 SC 407 ref.
Appellant in person.
Muhammad Sarwar Khan, Additional Advocate-General Sindh and A.A. Siddiqui, Advocate-on-Record for Respondents.
Date of hearing: 22nd July, 2004.
2004 S C M R 1871
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C. J. and Abdul Hameed Dogar, J
MUHAMMAD JAMIL----Petitioner
Versus
THE STATE and 3 others---Respondents
Criminal Petition No.269 of 2004, decided on 9th August, 2004.
(On Appeal from the order, dated 21-6-2004 of the Lahore High Court, Lahore, passed in Criminal Revision No.520 of 2004).
Juvenile Justice System Ordinance (XXII of 2000)-------
----Ss. 7 & 12---Constitution of Pakistan (1973), Art.185(3)---Juvenile offender---Commuting death sentence into life imprisonment ---Non determining of age of accused---Raising of new plea---Death sentence awarded to the accused was confirmed by High Court and appeal before Supreme Court was pending---Plea raised by the accused was that no inquiry had been held to ascertain age of the accused at the time of commission of offence, such matter required consideration by Supreme Court even if the accused had availed all remedies available to him according to law---Validity---Incident took place on 2-3-1993 and the Juvenile Justice System Ordinance, 2000, was introduced in year, 2000 when the appeal was already pending before Supreme Court---Even the question of minority or juvenility was not urged by the accused before Supreme Court ---Question of minority was neither raised before Trial Court nor before High Court and it was for the first time after dismissal of mercy petition by President, that the father of the accused took the plea of juvenility in his application addressed to the Government by initiating second round of litigation---Age of the accused as mentioned in his statement recorded under S.342, Cr.P.C. on 12-6-1994, was 24 years which factor was confirmed by Trial Court as well as by High Court leaving no room for further probe---Leave to appeal was refused.
Raja Abdul Ghafoor, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Ghulam Dastagir, Superintendent Jail, Jhang on Court Notice.
Date of hearing: 9th August, 2004.
2004 S C M R 1874
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ
FARASAT HUSSAIN and others---Petitioners
Versus
PAKISTAN NATIONAL SHIPPING CORPORATION through Chairman and others---Respondents
Civil Petitions Nos.4-K to 89-K, 99-K to 104-K, 108-K to 199-K, 241-K of 2004, 32 and 84 to 186 of 2004, decided on 12th August, 2004
(On appeal from the judgment of the Federal Service Tribunal at Karachi, dated 4-11-2003 passed to Appeals Nos.21 to 100, 110: 110-A, I11 to 113, 113-A, 114 to 136, 313 to 326, 364 to 368, 848, 501, 1133, 1145, 1173 to 1175, 1242, 1243, 1264, 1285, 1333 to 1335, 1343 to 1407/K(CE) of 2001, 171 to 174/K(CE) of 2000; 321, 370-K (CE) of 2001 and 1287-K (CE) of 2000 respectively).
(a) Constitution of Pakistan (1973)---
----Art. 212(3)---Petition for leave to appeal---No question qua the jurisdiction of the Service Tribunal was ever raised while arguing the appeal before it and it was never agitated before the Service Tribunal that principle of "master and servant" would be applicable to the case---Said two points were not even included in the petition for leave to appeal before the Supreme Court---Effect---Such points should have been agitated before the Service Tribunal---No blanket authority could be conferred upon the party to raise such an objection or law point according to his whims and wishes but it should have been done at the first opportune moment.
(b) Service Tribunals Act (LXX of 1973)---
----S. 2-A---General law of "master and servant" has undergone redical changes mainly due to insertion of S. 2-A in Service Tribunals Act 1973---Employee of any corporation irrespective of the fact whether it has got statutory rules or not can approach the Service Tribunal for redressal of his grievances pursuant to the provisions as contained in S. 2-A, Service Tribunals Act, 1973---Relationship of "master and servant" does not confer unbridled or unfettered powers to act whimsically or capriciously in violation of the principles of natural justice and well-settled norms of justice--Principles.
Zahir Ullah v. Chairman, WAPDA 2000 SCMR 826; Abdul Hafeez Abbasi v. Managing Director PIAC 2002 SCMR 1034; United Bank Limited v. Shahmim Ahmed Khan PLD 1999 SC-990; Pakistan International Airlines Corporation v. Nasir Jamal Malik 2001 SCMR 934 and Sui Southern Gas Company v. Narain Das PLD 2001 SC 555 fol.
(c) Civil service---
----Termination of service---Reinstatement---Employees had received financial benefits after termination of their services which had also been decided by the Service Tribunal holding that on reinstatement the amount so received shall be returned---Reinstatement order passed by the Service Tribunal was conditional order and the entire financial benefits would have to be returned by the employees who had received the same---Merely receiving such an amount would not constitute estoppel and the appropriate legal remedy could be sought---Principles.
Enmay Zed Publication v. Sindh Labour Appellate Tribunal 2001 SCMR 565 quoted.
Manzoor Ali Khan, Advocate Supreme Court for Petitioners (in C.Ps. Nos.4-K to 89-K, 108-K to 199-K and for Respondents in C.Ps. Nos.32 and 84 to 186 of 2004).
Ghulam Qadir Jatoi, Advocate Supreme Court for Petitioners (in C.Ps. Nos.89-K and 101-K to 104-K of 2004).
Hafiz S.A. Rehman, Senior Advocate Supreme Court for Petitioners (in C.Ps. Nos.32 and 84 to 1.86 of 2004 and for Respondents in all).
Petitioner in C. P. 100-K of 2004 in Person.
Date of hearing: 2nd June, 2004.
2004 S C M R 1889
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J. Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ
Mrs. RIAZ QAYYUM---Petitioner
Versus
THE STATE and another---Respondents
Civil Petition No.2587 of 2003, decided on 9th July, 2004.
(On appeal from the judgment dated 21-7-2003 of Lahore High Court, Lahore in Writ Petition No.4991 of 2003).
Criminal Procedure Code (V of 1898)---
----S.497---National Accountability Ordinance (XVIII of 1999), S.9--Bail, refusal of---Elaborate sifting of evidence could not be made at the time of deciding bail application but only tentative assessment of the same was to be made---Prima facie there appeared to be a reasonable ground disentitling the accused to concession of bail---Bail was refused.
M. Bilal, Senior Advocate Supreme Court, Tariq Bilal, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioner.
M. Jaffar Hashmi, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent/NAB.
Date of hearing: 9th July, 2004.
2004 S C M R 1892
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C J., Javed Iqbal and Abdul Hameed Dogar, JJ
THE STATE through Deputy Prosecutor-General, NAB---Petitioner
Versus
TARIQ MOHSIN and others---Respondents
Criminal Petition No. 141-K of 2002, decided on 4th June, 2004.
(On appeal from the judgment of the High Court of Sindh at Karachi, dated 5-11-2002 passed in Cr. Misc. Application No.207 of 1999).
Criminal Procedure Code (V of 1898)---
----Ss. 561-A & 265-K---Central Excises Act (I of 1944), Ss.3, 4, 9 & 9(b)(d)---National Accountability Ordinance (XXX of 1999); S.9--Quashing of proceedings pending application under S.265-K, Cr.P.C. by the High Court---Inherent jurisdiction of High Court under S. 561-A, Cr.P.C ---Scope---Principles.
In the present case an application under section 265-K, Cr.P.C. was moved which was pending before the Special Judge Customs and Taxation when the High Court was approached under section 561-A, Cr.P C., for quashment of F.I.R. and criminal proceedings pending in the Accountability Court, which had been accepted vide judgment impugned. Application filed under section 265-K, Cr.P.C., could not be decided .for a couple of months which was treated as "dismissed" by the High Court which was not correct because merely due to afflux of time, application pending adjudication could not be equated with that of dismissal.
Scrutiny of the record showed that the said application could not be disposed of as the Trial Court thought it appropriate to decide the application for cancellation of bail at first instance moved against the accused. The factum of delay alone would not empower the High Court to accept the application under section 561-A, Cr.P.C., at premature stage during the pendency of an application moved under section 265-K, Cr.P.C., which was pending for decision and the case was at its initial stage. The inherent jurisdiction of High Court as conferred upon it under section 561-A, Cr.P.C should not normally be invoked, where another remedy is available. The jurisdiction so conferred and the powers so vested ought to be exercised only to prevent abuse of process of Court and in order to promote the interest of justice. Another important aspect which must not escape unnoticed is that the High Court may quash the criminal proceedings initiated on baseless and frivolous complaint which does not contain any definite accusation or where apparently no offence is made out, but where on face of complaint a prima facie case is made out then the question of quashment does not arise when the evidence is yet to be recorded, as it would amount to stifling of criminal proceedings. It would also not be desirable to quash the proceedings at initial stage when a prima facie case is made out for the reasons that in, such an eventuality the matter would fall within the discretionary ambit of Trial Court to thrash out the evidence to see and decide whether the accusation is-having any substance or otherwise. For the quashment of criminal proceedings the High Court must be able to come to a clear conclusion that either the accused is innocent or that the conviction is quite impossible. The power as conferred upon High Court under section 561-A, Cr.P.C. can certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute and the High Court should be extremely reluctant to interfere in a case where competent Court of law has just taken the cognizance of the matter. Section 561-A, Cr.P.C. confers inherent powers on the High Court to act in aid of advancement of interest of justice and to eliminate an action resulting in abuse of the process of the Court. It is permissible to exercise inherent powers on the satisfaction that a criminal proceeding or an action initiated in criminal proceedings, if allowed, would not advance the cause of justice and ultimately would tantamount to abuse of the process of the Court. In absence of such satisfaction, the High Court was not well advised to act merely on conjectures, surmises, artificial suggestions or speculations. Lapse of long period since initiation of case cannot be considered as ground for quashment. It would be too premature to form or express any opinion for the determination of the guilt or innocence of the petitioner which will initially depend on the totality of the facts and circumstances which would reveal during the trial. There is no denial of fact that such a stage had not yet reached in the present case.
A plain reading of section 561-A. Cr.P.C. shows that nothing to the Criminal Procedure Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under the Criminal Procedure Code, or to prevent abuse of process of any Court or otherwise to secure the ends of justice. In the present case neither any order was made by any Court nor any process was issued by any Court. So, the question of making such orders as may be necessary to give effect to any order under the Criminal Procedure Code or to prevent abuse of process of any Court, does not arise.
In the present case neither any order was passed nor any concrete step was taken by the Trial Court when the entire proceedings were quashed which depicts somewhat haste specially when an application under section 265-K, Cr.P.C., was pending. Case involved fraud of crores of rupees of public money and the prosecution should have been given full opportunity to produce its evidence before any conclusion could have been recorded. Case was not a fit one in which High Court should have invoked jurisdiction under S. 561-A, Cr.P.C. directly even before the prosecution produced its evidence.
The petition for leave to appeal was converted into appeal and allowed. The impugned judgment was set aside. The application under section 265-K, Cr.P.C. preferred on behalf of the accused shall be treated as pending and be decided within two months by the Trial Court in accordance with law and on its own merits. All the contentions agitated before Supreme Court could be raised before the Trial Court. . The observations made being tentative in nature shall not affect the merits of the case.
1986 PCr.LJ 2230; PLD 1967 SC 317; Tahir Hussain Mehmmodi v. State PLD 1995 Quetta 76; Gianchand v. State 1968 SCMR 380; Ahmed Saeed v. State 1996 SCMR 186; Noorul Islam v. The State 1986 SCMR 1836; State through Director-General, Pakistan Coast Guards, Turbat v Sabro and another 1992 PCr.LJ 1795; Zubair alias Nana v. The State 1992 PCr.LJ 2127 and The State v. Muhammad Nawaz 2000 SCMR 634 ref.
Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.
Azizullah Sheikh, Senior Advocate Supreme Court, Muhammad Farrogh Nascent, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondents Nos. 1 to 4.
Date of hearing: 13th April, 2004.
2004 S C M R 1899
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ
SALAH-UD-DIN and another---Petitioners
Versus
ABDUL KHALIQ and others---Respondents
Civil Petition No.87/Q of 2002, decided on 16th January, 2004.
(On appeal from the judgment, dated 28-11-2002 of the High Court of Balochistan, Quetta passed in C.P. No.474 of 2002).
(a) Balochistan Local Government Elections Rules, 2000---
----R. 71---Constitution bf Pakistan (1973), Art. 185(3)---Recounting of votes---Non-affixing of stamp at the place showing symbol of candidate---On disputed ballot papers, instead of affixing stamp at the place showing symbol, the same was affixed in front of the name of the candidate---Plea raised by the election petitioner was that such votes were invalid---Validity---Question of validity or otherwise of the ballot papers could only be determined by ascertaining the intention of voters and in that respect the manner of affixing mark / stamp was material---If the mark or stamp was affixed upon the name of the candidate instead of his symbol, there could not be any hesitation to maintain that the voter had in fact shown his consent to cast vote in favour of the candidate---Affixing of such stamp indicated that the voters had exercised their right of votes in favour of the candidate---Returned candidate had tendered his resignation on the ground that he intended to participate in the General Elections---Such point being vital in nature was not adverted to either by the Election Tribunal or by High Court in their respective orders--Supreme Court converted petition for leave to appeal into appeal and set aside the orders passed by Election Tribunal and High Court---Appeal was allowed.
Dr. Sher Afgan v. Aamar Hayat Khan and 2 others 1987 SCMR 1987 rel.
(b) Balochistan Local Government Elections Ordinance (VI of 2000)---
---S. 16(2) & (3) [as amended]---Securing 50% of votes ---Precondition---Applicability---Contest of election is singular in nature under S.16(2) of Balochistan Local Government Elections Ordinance, 2000, and no condition of securing more than 50% of total number of votes is specified---Whereas in case of S.16(3) of Balochistan Local Government Elections Ordinance, 2000, the contest is multiple in nature and the condition of securing more than 50 % of total vote of the number of members of union councils in their respective constituencies is maintained.
Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Petitioners.
Haji Shakeel Ahmad, Advocate Supreme Court for respondent No. 1.
Nemo for Respondents Nos.2-4.
Date of hearing: 16th January, 2004.
2004 S C M R 1903
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J. and Faqir Muhammad Khokhar, J
GHULAM MUSTAFA INSARI and 48 others---Petitioners
Versus
GOVERNMENT OF THE PUNJAB and others---Respondents
Civil Petitions Nos.1091, 1092, 1106, 1116 to 1118 of 2004, 1204 to 1213 of 2004, 1390-L to 1396-L, 1403-L, 1447-L, 1463-L, 1464-L, 1556-L, 1576-L to 1578-L, 1638, 1642-L, 1643-L; 1648-L, 1663-L, 1683-L, 1703-L, 1704-L, 1708-L, 1710-L, 1799-L, 1914-L, 1915-L, 1978-L, 2005-L, 2006-L, 2075-L of 2004 and 2198-L of 2004, decided on 16th July, 2004.
(On appeal from the judgment dated 24-3-2004 of the Lahore High Court, Lahore, passed in Writ Petitions Nos. 12717, 13382, 12719, 1163, 1232, 1287, 11427, 12000, 12002, 12710, 10671. 10990, 11241, 11249, 11361, 14308, 2508 of 2003/BWP, 1789 of 2003/BWP, 2624 of 2003/BWP, 2625 of 2003/BWP, 2590 of 2003/BWP, 2591 of 2003/BWP, 4134, 2766, 11111 of 2003, 11199, 11349, 2458 of 2003/BWP, 18861 of 2002, 8094 of 2003, 9567, 3372, 10814. 10400, 11396, 9845, 11360, 2509, 2723, 10629, 7982, 10613 of 2003, 429 of 2004, 20892 of 2002, 7421 of 2003, 11203, 11199, 3421 of 2003 and 11491 of 2003).
(a) Punjab Local Government Ordinance (XIII of 2001)-----
----Ss. 85, 92, 75, 80, 81, 87, 89, 90 & 148---Punjab Local Government Recall Motion Against the (Nazims and Naib Nazims) Rules, 2003--Punjab Union Administration Rules of Business 2002, Rr. 3, 4, 5, 6, 9, 12(2), 14, 15, 16, 17, 18 & 20---Punjab Local Government (Taxation) Rules 2001, Rr. 4(1), 5 & 9---Constitution of Pakistan (1973), Arts.25 & 261---Union administration---Internal call motion---Procedure---Validity of Ss. 85 & 92 of Punjab Local Government Ordinance, 2001 on the touchstone of preamble of the said Ordinance and Constitution of Pakistan---Naib Union Nazim may preside over the meeting of the Union Council only in the absence of a Union Nazim---Naib Union Nazim presides over the meeting of the Union Council for consideration of a recall motion against the Union Nazim under S. 65, Punjab Local Government Ordinance, 2001---No other function has been assigned to Naib Union Nazim by or under the Punjab Local Government Ordinance, 2001 or the Rules---Office of Naib Nazim was created in order to cater for a contingent situation when the Nazim was unable to perform the duties and functions of his office---Union Nazim and Naib Nazim do not constitute one and the same class of persons---Union Nazim occupies a primary and pivotal position -and he is a kingpin of the Union Administration as well as the Union Council---Classification qua both Nazim and Naib Nazim is reasonable, rational and with intelligible differentia--Position of a Union Nazim being quite different in nature from that of Naib Union Nazim, Legislatures is empowered to provide a `somewhat different procedure for internal call motion in respect of these offices notwithstanding that Nazim and Naib Nazim are directly elected as joint candidates under Ss.87 and 148 of the Punjab Local Government Ordinance, 2001---Legislature can provide the same or different procedure for internal call motion for the offices of Union Nazim and Naib Union Nazim---Provisions of Ss.85 and 92 of the Ordinance in the context of different procedure for internal call motion against Union Nazim and Naib Nazim are valid and do not offend any provision of the Constitution---Principles.
It is only in the absence of a Union Nazim that the Naib Union Nazim may preside over the meeting of the Union Council. The Naib Union Nazim presides over the meeting of the Union Council for consideration of a recall motion against the Union Nazim under section 85 of Punjab Local Government Ordinance, 2001. No other function has been assigned to him by or under the Ordinance or the Rules. It is the Union Nazim who occupies a primary and pivotal position. He is a kingpin of the Union Administration as well as of the Union Council.
The Naib (Deputy) cannot be equated with the principal. Generally speaking, a deputy is one who is appointed as a substitute of another and empowered to act for him in his name or on his behalf. He is but the principal's shadow who does all things in the name of the principal. The principal and deputy do not stand on equal footing. The deputy performs only certain functions in the absence of principal. A surrogate carries with him the fact that he is alter ego of his superior charged with duties as well as responsibilities of his superior. Under the scheme of the Punjab Local Government Ordinance it seems that the office of Naib Nazim was created in order to cater for a contingent situation when the Nazim was unable to perform the duties and functions of his office. It is, therefore, difficult to say that a Union Nazim and the Naib Union Nazim constitute one and the same class of persons. The classification qua both of them is reasonable, rational and with intelligible W differentia. The equality is amongst equals and unequals cannot be treated as equals, Even in terms of Article 261 of Constitution, a person acts in office is not to be regarded as a successor to a person who held that office before him or is the predecessor who holds that office after him.
As regards internal recall motion, section 85 of the Ordinance provides that after the receipt of a notice of recall against the Union Nazim, a session of the Union Council shall be summoned within three days if the Union Council is not already in session. However, if the Council is already in session, the motion of recall shall be taken up the next day. If the recall motion is carried by majority of members of the Union Council through a secret ballot, the same shall be caused by the Election Authority to be voted upon by the members of the Village Councils and Neighbourhood Councils in the Union and if passed by a simple majority, the Union Nazim shall cease to hold office from the date of notification by the District Government.
Section 92 of the Ordinance lays down the procedure of the recall motion against a Naib Union Nazim. Such a motion is to be taken up for deliberations immediately on its receipt where Union Council is already in session and if the motion is approved by the majority of the votes of total membership of the Union Council, tire Naib Union Nazan shall cease to hold office. The difference in procedure seems to be on account of the distinct status and numerous important functions entrusted to Union Nazim vis-a-vis Naib Union Nazim. They may not be considered to be falling within the same category of persons.
The position of a Union Nazim is quite different in nature from that of a Naib Union Nazim. Therefore, the Legislature in its wisdom is empowered-to provide a somewhat different procedure for internal recall motion in respect of these offices notwithstanding that Nazim and Naib Nazim are directly elected as joint candidates under the provisions of sections 87 and 148 of the Ordinance based of adult franchise. It is matter of practical experience and not for the Court to determine whether the Nazim and the Naib Nazim are twin brothers or step-brothers.
Needless to observe that the Courts generally lean towards upholding the constitutionality of a statute rather than destroy it unless such a statute is, ex facie, discriminatory or capable of discriminatory application and otherwise is clearly violative of any provision of the Constitution.
There does not seem to be much force in the contention that the Nazim and Naib Nazim could be impeached only by the electorate by whom, and the manner in which, they were elected and in no other manner and by no other forum or electoral college. There is no principle of universal application that only such forum or authority can remove or impeach an office holder which has appointed or elected him.
No conflict between the preamble and the provisions of sections 85 and 92 of the Punjab Local Government Ordinance.
The preamble of a statute is a useful aid for interpretation where its language is not clear or the same is otherwise susceptible to more than one meaning. But the validity or vires of a statute cannot be tested merely on the basis of a preamble. So many statutes do not contain preambles. The preamble of a statute can neither restrict nor control the meaning of the enacting part of the statute. If the enacting part of the statute goes beyond the preamble it is the enacting part which prevails and not the preamble.
It was open to the legislature to provide the same or different procedure for internal recall motion for the offices of Union Nazim and Naib Union Nazim. The provisions of sections 85 and 92 of the Ordinance in the context of different procedure for internal recall motion against Union Nazim and Naib Nazim are valid and do not offend any provision of the Constitution. They do not suffer from vice of unreasonable classification or discrimination within the meaning of Article 25 of the Constitution.
Ordinarily, it is not for the Court to question the wisdom of the legislature merely on the ground that a provision of law may work some inconvenience or hardship in the case of some persons unless it is violative of a Constitutional provision including fundamental rights.
I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341; Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641; Subhanuddin v. National Reconstruction Bureau through Chairman and others PLD 2004 SC 125; Mrs. Naheed Akhter Khan and another v. City District Government, Karachi and others Civil Petition No.325-K of 2004; Federation of Pakistan through Secretary, Election Commission of Pakistan and 3 others v. Syed Ali Murad and others PLD 2004 SC 399; Watan Party v. Chief Executive/President of Pakistan and another PLD 2003 SC 74; Mehmood Khan Achakzai and others v. Federation of Pakistan and others PLD 1997 SC 426; Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457; Mian Mushtaq Ahmed v. Deputy Commissioner, Sargodha and 11 others 1982 SCMR 775;Black's Law Dictionary 5th Edn. "1979 p.398; Mehreen Zaibun. Nisa v. Land Commissioner, Multan and others PLD 1975 SC 397; The Province of East Pakistan and others v. Sirajul Huq Patwari and others PLD 1966 SC 854; Inamur Rehman v. Federation of Pakistan and others 1992 SCMR 563 and Darbar Patiala through S. Ajmer Singh, Managing Director of Patiala State Bank, Patiala v. Firm Narain Das Gulab Singh of Jagadhri through Kr. Kishore Saren and others AIR 1944 Lah. 302 ref.
(b) Constitution of Pakistan (1973)---
----Art. 25---Equality of citizens---Principles illustrated.
Following are the principles in the context of equality clauses of the Constitution:-
(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;
(ii) that reasonable classification is permissible but it must be founded on reasonable distinction. of reasonable basis;
(iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes;
(iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;
(v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;
(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;
(vii) that in order to make a classification reasonable it should be based;---
(a) on an intelligible differentia which distinguished persons or things that are grouped together from those who have been left out;
(b) that the differentia must have rational nexus to the object sought to be achieved by such classification.
The right relating to the equality of citizens was not violated, if the discrimination proceeded on a rational classification, having relevance to the underlying object of the legislation.
The principle of equality did not mean that every law must have universal application to all persons who were not by nature, attainment or circumstances in the same position. The varying needs of different classes of persons required different treatment. Classification was the recognition of the relations, and, in making it, a legislature must be allowed a wide latitude of discretion and judgment.
The Courts did not expect from legislature a "scientific accuracy in classification adopted".
The State was empowered to distinguish and classify persons or things for the purpose of legislation and that a classification need not be scientifically perfect or logically complete.
The guiding principle of equality was that all persons and things similarly circumstanced would be treated alike both in respect of privileges conferred and liabilities imposed.
Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341; Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641; Mehreen Zaibun Nisa v. Land Commissioner, Multan and others PLD 1975 SC 397; Tingn v. Texas (1940) 310 US 1417; Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC457; Kedar Nath Bajoria v. State of West Bengal AIR 1953 SC 404 and Satish Chandra v. Union of India AIR 1953 SC 250 quoted.
(c) Vires of a statute-----
---------Courts, generally lean towards upholding the constitutionality of a statute rather than destroy it unless such a statute is, ex facie discriminatory or capable of discriminatory application and otherwise clearly violative of any provision of the Constitution.
Mehreen Zaibun Nisa v. Land Commissioner, Multan and others PLD 1975 SC 397; The Province of East Pakistan and others v. Sirajul Huq Patwari and others PLD 1966 SC 854, Inamur Rehman v. Federation of Pakistan and others 1992 SCMR 563 and Darbar Patiala through S. Ajmer Singh, Managing Director of Patiala State Bank, Patiala v. Firm Narain Das Gulab Singh of Jagadhri through Kr. Kishore Saren and others AIR 1944 Lahore 302 ref.
(d) Interpretation of statutes-----
---- Preamble of a statute---Functions of ---Vires or validity of a Statute itself cannot be tested merely on the basis of preamble of the statute---If the enacting part of the statute goes beyond the preamble it is the enacting part which prevails and not the preamble---Principles.
The preamble of a statute is a useful aid for interpretation where its language is not clear or the same is otherwise susceptible to more than one meaning. But the validity or vires of a statute cannot be tested merely on the basis of a preamble. So many statutes do not contain preambles. The preamble of a statute can neither restrict nor control the meaning of the enacting part of the statute, if the enacting part of the statute goes beyond the preamble it is the enacting part which prevails and not the preamble.
Whilst a statement in the preamble of a statute as to its ultimate objective might be useful as throwing light on the nature of the matter legislated upon and must undoubtedly be taken into consideration, it could not be conclusive on the question of vires of a statute. The Courts were to see whether the subject-matter of the impugned legislation was really within those powers.
Preamble of a statute is a good means of finding out its meaning, and is a key to its understanding but it cannot furnish basis of declaring a provision of the Statute as ultra vires.
Preamble could not control the meaning of the enacting part of the statute and if the enacting part of the statute went beyond the preamble it was the enacting part which was to prevail and not the preamble.
Preamble was a preliminary statement which usually set out the reason leer making the Act of Parliament and the scope of the Act and that preamble was it legitimate aid in construing the enacting parts.
The preamble could not be used to control the enactment, themselves where they were expressed in clear and unambiguous terms.
Rex v. Basudev (1949) FCR 657; Sh. Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504; Murree Brewery Co. Limited v. Pakistan through the Secretary to Government of Pakistan and 2 others PL.D 1972 SC 279 and Attorney-General v. H.R.H. Prince Ernest Augustus of Hanover (1957) 1 All ER ref.
(e) Punjab Local Government Ordinance (XIII of 2001)---
----Ss. 85 & 92---Provisions of S. 92, Punjab Local Government Ordinance, 2001 are not invalid or ultra vires merely because they are in conflict with, or otherwise provide more simple procedure than the one provided by S. 85 of the said Ordinance in the case of Union Nazim--Both the provisions viz. S. 92 and S. 85 of the Ordinance stand on equal footing---Validity of one provision of a statute cannot be tested on the touchstone of another provision of the same statute---Principles.
The provisions of section 92 of the Punjab Local Government Ordinance cannot be held to be invalid or ultra vires merely because they are in conflict with, or otherwise provide more simple procedure than the one provided by section 85 of the said Ordinance in the case of a Union Nazim. Both provisions stand oil equal footing. The validity of one provision of a statute cannot be tested oil the touchstone of another provision of the same statute. The vires of a legislative measure including ail Ordinance are not to be examined with reference to any idea of philosophy extraneous to the Constitution but the Constitutional provision, themselves.
(f) Interpretation of statutes---
----Court cannot question the wisdom of the legislature merely on the ground that a provision of law may work some inconvenience or hardship in the case of some persons unless it is violative of a Constitutional provision including fundamental rights.
Punjab Province v. Malik Khizar Hayat Khan Tiwana PLD 1956 FC 200 and Prafulla Kumar Das v. State of Orisa AIR 2003 SC 4506 = (2003) 11 SCC 614 ref.
Naseer Ahmed Bhutta, Advocate Supreme Court and Raja Abdul Ghafoor. Advocate-on-Record for Petitioners. (in C. Ps. Nos. 1204 to 1213 of 2004, 1447-L of 2004, 1463-L and 1464-L of 2004).
Malik Muhammad Aslam, Advocate, Supreme Court for Petitioners (in C. Ps. Nos. 1390-L to 1396-L, 1556-4., 1703-L, 1704-L of 2004 and 1403-L of 2004).
Sh. Zamir Hussain Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioners (in C.Ps. Nos. 1091. 1092, 1106, 1116 and 1118 of 2004).
M.A. Zaidi, Advocate-on-Record for Petitioners (in C.Ps. Nos. 1576-L to 1578-L of 2004 and 1799-L of 2004).
Muhammad Munir Peracha, Advocate Supreme Court for Petitioners (in C. P. No.1650 of 2004) Dr. Ejaz Muhammad Khar., .Advocate-on-Record.
Nazir Ahmed Ghazi, Advocate Supreme Court for Petitioners (in C. Ps. Nos. 1642-L and 1643-L of 2004).
Petitioner No.43 in person (in C. P. No.1914-L of 2004).
Ch. Muhammad Hanif Zahid, Advocate-on-Record for Petitioners (absent) (in C.Ps. Nos. 1576-L to 1578-L of 2004 and 1799-L of 2004).
Mian Ghulam Rasool, Advocate Supreme Court for Petitioners (in C. P. No. 1648-L of 2004).
Dr. M. Mohyuddin Qazi, Advocate Supreme Court for Petitioners (present on 15-7-2004 in C.P No. 1663-L of 2004).
Petitioners Nos.37, 40 and 41 in person (in C.Ps. Nos.1683/L , 1708-L, 1710-L of 2004).
Mian Abdul Qaddus, Advocate Supreme Court (in C.P. No.2075 L of 2004).
Rai Muhammad Tufail Khan Kharl, Advocate Supreme Court (absent) for petitioners (in C.P. No.2198-L of 2004).
Mehmood Khan, Advocate Supreme Court (in C. P. No. 1915-L of 2004).
Rafiq Javed Butt, Advocate Supreme Court for Petitioners (in C.P. No. 1978-L of 2004).
Muhammad Shahzad Shaukat, Advocate Supreme Court for Petitioners (in C.Ps. Nos.2005-L and 2006-L of 2004).
Syed Shabbar Raza Rizvi, Advocate-General, Punjab (on notice) with Mrs. Afshan Ghazanfar, A.A.-G., Punjab for Respondents.
District Coordination Officer for Respondents (in C.Ps. Nos. 120R and 1211 of 2004).
Respondents Nos.1 and 2 in person (in C, Ps. Nos.1463-L and 1464-L of 2004).
Respondent No. 1 in person (in C.P. No. 1642-L of 2004).
Respondents Nos.2 and 3 in person (in C.P. No. 1643-L of 2004).
Faizur Rehman, Advocate-on-Record for Respondents (absent).
Date of hearing: 16th July, 2004.
2004 S C M R 1924
[Supreme Court of Pakistan]
Present: Hamid Ali Mirza, Mian Shakirullah Jan and Tassaduq Hussain Jilani, JJ
MUHAMMAD ASHFAQ---Petitioner
Versus
AMIR ZAMAN and others---Respondents
Civil Petition No. 1531 of 2004, decided on 6th September, 2004.
(On appeal from the judgment dated 17-6-2004 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi in I.C.A. No. 131 of 2004).
Criminal Procedure Code (V of 1898)------
----S. 173---Constitution of Pakistan (1973), Art.185(3)---Final report--Re-investigation of case pending trial---Opinion of Investigating Officer---Grievance of complainant was that after submission of final report in Trial Court the police had re-investigated the case which could prejudice his case---Validity---Apprehension of the complainant was misconceived as Trial Court could proceed with the trial on the basis of the report already submitted under S.173, Cr.P.C.---Trial Court was not bound by the opinion given in the final report or expressed in the report being submitted pursuant to re-investigation and it was always the judicial consideration of the material collected by police which weighed with the Court while issuing process---Leave to appeal was refused.
Malik Rab Nawaz Noon, Senior Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 6th September, 2004.
2004 S C M R 1927
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Khalil-ur-Rehman Ramday, JJ
Messrs METROPOLE CINEMA (PVT.) LTD. and others---Petitioners
Versus
GOVERNMENT OF THE PUNJAB through Secretary Excise and Taxation Department and others---Respondents
Civil Petitions Nos.860, 976, 993, 994 of 2004, 1419-L, 1618-L, 1665-L, 1676-L; 1677-L, 1678-L, 1705-L, 17.06-L, 1707-L-, 1721-L to 1724-L, 1728-L to 1789-L, 1794-L, 1795-L, 1797-L, 1798-L, 1800-L, 1807-L to 1813-L, 1829-L to 1831-L, 1844-L, 1845-L, 1853-L to 1860-L of 2004, decided on 4th June, 2004.
(On appeal from the judgment of Lahore High Court, Lahore, dated 8-3-2004 passed in W.Ps. Nos.6738, 7416, 7753, 7754, 19351, 18018 of 2002, 15476, 2420, 5131, 9581, 2678, 16548, 16549, 320 of 2003, 16544, 16545, 16547, 573, 5889, 17788, 14498, 5769, 5715, 5893, 17843, 19033, 576, 17608, 17839, 5765, 6218, 5700, 17787, 17786, 6216, 6220, 5894, 5675, 17840, 5709, 5770, 5711, 6215, 5706, 5716, 6221, 5717, 17785, 17795, 17789, 5713, 5707, 17793, 5771, 17844, 5895, 14502, 5712, 5701, 17794, 17609, 17738, 5703; 5888, 5777, 5718, 17790, 6219, 5710-M, 17844, 5891, 6222, 5778, 17611, 5704, 17792, 5676, 17610, of 2002, 7528 of 2003, 6223, 21094, 12232, 6944, of 2002, 9145 of 2003, 17612, 6585 of 2002, 7178 of 2003, 17841, 5674 of 2002, 12760 of 2003, 5892 of 2002, 4655, 5087, 4184 of 2003, 85 of 2004, 16572, 17856 of 2002, 6099 of 2003, 19038 of 2002, 6098 of 2003, 17497, 17498 of 2002, 6264 and 6265 of 2003).
(a) West Pakistan Urban Immovable Property Tax Act (V of 1958)-----
----Ss. 3, 5, 5-A [as inserted by Punjab Finance Act (VII of 1998)] & 10---West Pakistan Urban Immovable Property Rules, 1958, Preamble--Letter No. SC TAX(E&T)3-38/91/P-I, dated 1.3-10-2001 issued by Government of the Punjab---Constitution of Pakistan (1973), Ars.185(3) & 199---Demand of property tax on basis of valuation table dated 31-10-2001 prepared for ascertaining annual value of property ---Taxpayers/petitioners alleged such demand to be excessive for being based on value of property and not on rental value of lands/buildings---High Court dismissed Constitutional petition---Supreme Court granted le v to appeal subject to limitation, inter alia, to consider questions as to whether insertion of S.5-A in West Pakistan Urban Immovable Property Tax Act, 1958 was ultra vires of the Constitution and suffered from excessive legislative delegation without any guideline; whether such Table had been prepared contrary to the provisions of Ss.3, 5 & 5-A of West Pakistan Urban Immovable Property Tax Act, 1958, if so, to what effect; whether Provincial Government had competently legislated/inserted S.5-A of the Act, whether such Table had been prepared after conducting any survey and inviting objections from tax-payers situated in different rating areas or on the basis of format formula received from Government by Excise and Taxation Department through letter dated 13-10-2001 and whether petitioners before approaching the High Court had availed alternate remedy by way of filing appeal or revision before the authorities under Act, 1958, if not, what would be its effect.
Mst. Amina Jabeen v. Government of Punjab and others NLR 2001 Tax 189 and Jamshed Waheed v. Government of Punjab PLD 2001 Lah. 395 ref.
(b) West Pakistan Urban Immovable Property Tax Act (V of 1958)-------
----Ss. 3 & 5-A---Constitution of Pa is an (1973), Art. 185(3)---Demand of property tax---Validity---Deposit of property tax by petitioner with Excise Department---Petition for leave to appeal---Interim relief to stay recovery of tax, prayer for---Supreme Court granted leave to appeal, but declined such relief to petitioner as no irreparable loss would accrue to him in circumstances---Supreme Court observed that such deposit would be subject to final decision of appeal arising out of the petition.
Dr. Sohail Akhtar, Advocate Supreme court and Mehr Khan Malik, Advocate-on-Record for Petitioners (in C.Ps Nos.860, 976, 993 and 994 of 2004).
Sheikh Masood Akhtar, Advocate-on-Record for Petitioners (in C. Ps. Nos. 1676-L to 1678-L of 2004).
Irshad Ahmad Qureshi, Advocate Supreme Court for Petitioners (in C. Ps. Nos. 1706-L, 1707-L, 1722-L to 1724-L of 2004).
Alamgir, Advocate Supreme Court for Petitioners (in C.Ps. Nos.1728-L to 1788-L 1794-L, 1795-L, 1807-L to 1813-L, 1855-L, 1857-L to 1860-L of 2004).
Amir Alam Khan, Advocate Supreme Court and Mushtaq Ahmad Tahirkheli, Advocate Supreme Court for Petitioners (in C. P. No. 1795-L of 2004).
Hamid Khan, Advocate Supreme Court for Petitioner (in C.P. No. 1800-L of 2004).
Chaudhry Muhammad Amin Javed, Advocate Supreme Court for Petitioner (in C. Ps. Nos. 1829-L to 1831-L and 1844-L of 2004).
Mr. Muhammad Qamar Sarwar, Advocate Supreme Court for Petitioner (in C. Ps. Nos. 1854-L and 1856-L of 2004).
Nemo for Petitioners (in C.Ps. Nos.1419-L, 1618-L to 1665-L, 1705-L, 1721-L, 1789-L, 1897-L, 1798-L, 1845 and 1853-L of 2004).
Date of hearing: 4th June, 2004.
2004 S C M R 1934
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Syed Deedar Hussain Shah, JJ
Mst. AMATUL BEGUM---Petitioner
Versus
MUHAMMAD IBRAHIM SHAIKH ---Respondent
Civil Appeal No.115 of 1999, decided on 4th August, 2004.
(On appeal from judgment of High Court of Sindh, Hyderabad dated 30-3-1998 passed in F.R.A. No.41 of 1994).
(a) Sindh Rented Premises Ordinance (XVII of 1979)---
----S. 2(a)(e) &
(h)---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to consider; whether the High Court was justified in holding that the premises did not fall within the definition, of building',land' or `premises' and, therefore, ejectment application was not maintainable.
(b) Sindh Rented Premises Ordinance (XVII of 1979)---
----Ss. 2(a)(e)(h) & 15---Ejectment petition ---Maintainability--Jurisdiction of Rent Controller---Administration of justice---Disputed premises was rented out to tenant for establishing a flour mill ---Ejectment petition and appeal were dismissed by Rent Controller and High Court respectively on the ground that the premises being commercial in nature and let out for the purpose of installing of a flour mill, would not fall within the definition of 'building' or `premises' as defined in S.2(a) and (e) of Sindh Rented Premises Ordinance, 1979---Validity---Technically the Rent Controller and High Court might be correct that the premises having been let out for establishing a flour mill, ejectment proceedings before Trial Court were not competent---Fact remained that had the landlady invoked jurisdiction of civil Courts for ejectment/dispossession of tenant under Transfer of Property Act, 1882, she would be entitled to seek such relief on the ground of expiry of the term of tenancy--Likewise, had the jurisdiction of Trial Court been rightly invoked, in addition to the grounds of default and personal requirement, the landlady would be entitled to obtain relief on the .ground of conversion of property for using the same for a purpose other than that for which it was let out--As the tenancy was created for a fixed period of 11 months and the litigation had dragged for more than 12 years, Supreme Court found it to be just,. fair and reasonable to allow the appeal and set aside the judgments passed by the Courts below---Judgments passed by Rent Controller and High Court were set aside and tenant was directed to vacate the premises---Appeal was allowed.
(c) Constitution of Pakistan (1973)--------
----Art. 187---Administration of justice---Powers .of Supreme Court--Scope---Supreme Court being at the apex of judicial hierarchy and vested with extraordinary jurisdiction within the contemplation of Art. 187 of the Constitution same is empowered to issue such directions, orders or decrees as may be necessary for doing complete justice---Supreme Court is also competent to mould the relief in the changed circumstances of the case in order to secure the cause of justice---Supreme Court is not bound by technicalities of procedure which are always meant for advancing the cause of justice rather than to thwart the ends of justice.
Ali Akbar, Advocate, Supreme Court/Advocate-on-Record for Petitioner.
Respondent in person.
Date of hearing: 4th August, 2004.
2004 S C M R 1938
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry and Tassaduq Hussain Jilani, JJ
MUHAMMAD IJAZ---Petitioner
Versus
MUHAMMAD SHAFI and others---Respondents
Civil Petitions Nos.2016-L and 2017-L of 2001, decided on 31st August, 2004.
(On appeal from the judgment dated 17-4-2001 passed by Lahore High Court, Lahore in Civil Revisions No.376-D and. 377-D of 1987).
High Court (Lahore) Rules and Orders-----
---- Chap.-I, Vol. I-B, R.7(c)---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to consider; whether on 30-5-1963, Tehsildar was empowered to receive the plaint, in absence of Civil Judge under R.7(c), Chap.-I, Vol. I-B of High Court (Lahore) Rules and Orders by District Judge.
Muhammad Yar through Legal Heirs v. Muhammad 2003 SCMR 1772 ref.
Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Petitioner (in both Petitions).
Khawaja Saeed-uz-Zafar, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Respondents (in both Petitions).
Date of hearing: 31st August, 2004.
2004 S C M R 1941
[Supreme Court of Pakistan]
Present: Sardar Muhammad Raza Khan and Faqir Muhammad Khokhar, JJ
RAHM BADSHAH---Petitioner
Versus
ZALIA KHAN and 5 others --- Respondents
Civil Petition No.95 of 2003, decided on 8th September, 2004.
(On appeal from the judgment dated 22-11-2002 passed by Peshawar High Court, Peshawar in Writ Petition No.477 of 2001).
North-West Frontier Province Pre-emption Act (X of 1987)-----
----Ss. 31 & 32---Constitution of Pakistan (1973), Art. 185(3)---Suit for pre-emption ---Limitation---Knowledge of transfer of property---Disputed mutation of sale was attested on 24-11-1998, and the suit of pre-emption was filed on 1-6-1999---Trial Court rejected the suit under O.VII., R.11 C.P.C. being barred by limitation under S.31 of North-West. Frontier Province pre-emption Act, 1987--Plea raised by the pre-emptor was that the provisions of Ss.31 and 32 of North-West Frontier' Province Preemption Act, 1987, were interdependent---Validity---If the legislature had intended to make the provisions of S.31 of the Act, 1987, dependent upon the provisions of S.32 of North-West Frontier Province Pre-emption Act; 1987, it could have conveniently inserted the relevant and important ingredients of S.32 of North-West Frontier Province Pre-emption Act, 1987, into the provisions of S.31 of the Act, 1987---Having not done so, both the sections could not be interpreted to be interdependent---Mode of knowledge provided in S.31 of North-West Frontier Province Preemption Act, 1987, was wider in ambit than the mode of knowledge attained through the provisions of its S.32---Latter section did not deal with the question of limitation but might be relevant with regard to the performance of Talbs---Supreme Court declined to interfere with the order passed by Trial Court as well as High Court---Leave to appeal was refused.
Nur-ul-Haq's case 2000 SCMR 1305 fol.
Mian Asif Islam's case PLD 2001 SC 499 and Muhammad Shah's case 2004 SCMR 535 ref.
Gulzarin Kiani, Advocate Supreme Court, wit S. Khattak, Advocate-on-Record for Petitioner.
Abdul Sattar, Advocate Supreme Court with Muhammad Zahoor Qureshi, Advocate-5n-record for Respondents Nos. 1-4.
Nemo for other Respondents.
Date of hearing: 8th September, 2004.
2004 S C M R 1943
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, Rana Bhagwanda and Muhammad Nawaz Abbasi, J
THE STATE through Prosecutor-General, National Accountability Bureau, Islamabad---Petitioner
Versus
NASIM-UR-REHMAN and others---Respondents
Criminal Petitions Nos.154 to 159 of 2004, decided on 16th September, 2004.
(On appeal from the judgment/order, dated 21-1-2004 passed by Peshawar High Court, Peshawar in Cr.E.As. Nos.1 to 5 and 14 of 2003).
National Accountability Ordinance (XVIII of 1999)-----
----Ss. 9(a), 18(g) & 24---Criminal Procedure Code (V of 1898), S.265-K---Word `person' as mentioned in S.9(a) of National Accountability Ordinance, 1999---Acquittal of accused under S.265-K Cr.P.C.---Leave to appeal was granted by Supreme Court to consider the scope of National Accountability Ordinance, 1999, in respect of accused who was not holder of public office but had indulged himself into corruption and corrupt practices being the beneficiary from the accused who was holder of public office arid was facing trial with other accused for same charge; whether the view expressed in the cases of Zulfiqar Ali, reported as PLD 2003 Lah. 593, Abdul Aziz Memon, reported as 2003 YLR 617 and Kabir Khan, reported as. 2003 YLR 1607, was just and proper or an authoritative judgment was required to be passed to reconcile the views taken in the judgments; whether Accountability Court acquitted the accused in exercise of its powers under S.265-K Cr.P.C. without affording sufficient opportunity to prosecution to lead evidence; and whether prosecution possessed sufficient incriminating evidence to establish charge against acquitted accused and to what effect.
Zulfiqar Ali v. Chairman, NAB PLD 2003 Lah. 593; Abdul Aziz Memon v. State 2003 YLR 617 and Kabir Khan v. The State 2003 YLR 1607 ref.
Irfan Qadir Prosecutor-General (NAB), for Petitioner.
Farkharuddin G. Ebrahim, Senior Advocate Supreme Court, Yahya Afridi, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondents.
Date of hearing: 16th September, 2004.
2004 S C M R 1947
[Supreme Court of Pakistan]
Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ
MUHAMMAD HUSSAIN and another---Appellants
Versus
MUHAMMAD SHAFI and others---Respondents
Civil Appeal No.698 of 1999, decided on 22nd September, 2004.
(On appeal from the judgment of Lahore High Court, Lahore dated 4-11-1997 passed in R.S.A. No.182 of 1987).
(a) Suits Valuation Act (VII of 1887)---
----S. 11---Court Fees Act (VII of 1870), S.7(vi)--Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to consider; whether High Court while setting aside judgment and decree of Trial Court failed to take into account the provisions of S.11 of Suits Valuation Act, 1887, and S.7 (vi) of Court Fees Act, 1870; and whether in absence of allegation by respondents that prejudice was caused to them on account of proceedings of the suit before Civil Judge Second Class, High Court should not have interfered with the judgment and decree passed in the suit.
(b) Suits Valuation Act (VII of 1887)-----
----S. 11---Civil Procedure Code (V of 1908), Ss.21 & 99---Valuation of suit---Proceedings before Court having no pecuniary jurisdiction--Remedy---Exception is given in S.11 of Suits Valuation Act, 1887, to the general rule that want of jurisdiction renders the proceedings null and void---Principle underlying S.11 of Suits Valuation Act, 1887, is that a decree passed by a Court which would have no jurisdiction to hear a suit or appeal but for over-valuation or under valuation, is not to be treated as what it would be but for section 11, null and void, and that an objection to jurisdiction as regards under valuation or over-valuation should be dealt with under the provisions of S. 11 of Suits Valuation Act, 1887, and not otherwise---Spirit of law behind Ss.21 and 99 C.P.C. appears to be the same as under S.11 of Suits Valuation Act, 1887, namely that when a suit was tried by a Court on merits and judgment delivered, it should not be liable to be reversed purely on technical grounds unless it had caused failure of justice---Policy of legislature has been o treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an Appellate Court unless it has resulted in grave prejudice on the merits---Object of S.11 of Suits Valuation Act, 1887, is to provide a mechanism for curing the original lack of jurisdiction and also to place such defect at par with other curable irregularities---Decree passed by Court whose jurisdiction is assailed is not void m view of S.11 of Suits Valuation Act, 1887---Defect of jurisdiction contemplated by S. 11 of Suits Valuation Act. 1887, is not of fundamental character 'as it is no more than an irregularity the exercise of jurisdiction.
(c) Suits Valuation Act (VII of 1887)---
----S. 11---Valuation of suit---Objections---Pre-conditions---Three conditions must exist to attract the provisions of S.11 of Suits Valuation Act, 1887, firstly that the objection was taken in the Trial Court before framing of issues or in the Appellate Court in the memorandum of first appeal as the case may be; secondly that the Appellate Court is satisfied as to the validity of the objection and thirdly that such wrong valuation of the suit or appeal must have prejudicially affected the merits of the suit or appeal as the case may be.
(d) Jurisdiction-----
----Lack of inherent jurisdiction---Effect---Waiver or estoppel ---When a Court suffers from want of inherent jurisdiction then no amount of consent or acquiescence in the proceedings can invest such Court with such jurisdiction---Question of waiver or estoppel in such case would not arise---Where a Court does not lack in its inherent jurisdiction but the procedure or mode of hearing, it adopts, is defective or irregular and in such a position a party joins issues and participates in the proceedings without raising any objection of such defect or irregularity touching upon jurisdiction; later on it cannot be allowed to challenge the jurisdiction when the result of the proceedings goes against it---In first case order of the Court is nullity in the eye of law but not so in the second case.
(e) Punjab Pre-emption Act (I of 1913)------
----S. 21---Suits Valuation Act (VII of 1887), S. 11---Court Fees Act (VII of 1870), Ss.7(v)(c) & 7(vi)---Pre-emption suit---Wrong valuation of suit---Deficiency in court-fee---Trial by Judge having no pecuniary jurisdiction---Failure to raise objection of jurisdiction---Trial Court found the suit correctly valued and decreed the same in favour of pre-emptorsAppellate Court " maintained the findings of Trial Court regarding valuation of suit and dismissed the appeal---High Court in exercise of appellate jurisdiction, set aside the judgments and decrees passed by both the Courts below and remanded the case to Trial Court---Validity---No objection was raised by vendees to the jurisdiction of Trial Court or the Appellate Court thus High Court was not justified in non-suiting the preemptors on the issue of valuation of the suit ---Vendees had all along waived the objection and acknowledged the jurisdiction of Trial Court by making good the deficit amount of court-fee, after determination of the valuation of the suit for the purpose of jurisdiction and court-fee--Vendee failed to demonstrate if any prejudice had been caused to them by decision of the suit by Civil Judge invested with second class powers--Such aspect of the case escaped the notice of the High Court, otherwise the High Court would not have set aside the judgment of Trial Court or ordered remand of the suit after 24 years of the commencement of litigation---Supreme Court set aside the judgment passed by High Court and remanded the case to High Court for deciding the appeal afresh----Appeal was allowed.
Chief Engineer Building Department v. Pakistan National construction 1988 SCMR 723; Kiran Singh v. Chaman Paswan AIR 1954 SC 340; Khizar Hayat v. Saleh Muhammad PLD 1986 Lah. 242; Abdul Majid v. Muhammad Walayat Khan 1987 SCMR 1139; Mathura Das v. Jalal Din AIR 1993 Lah. 8 and Ali Muhammad v. Muhammad Shafi PLD 1996 SC 292 ref.
Muhammad Munir Peracha, Advocate Supreme Court for Appellants.
Muhammad Anwar Bhaur, Advocate Supreme Court for Respondents.
Date of hearing: 22nd September, 2004.
2004 S C M R 1956
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J. Javed Iqbal and Abdul Hameed Dogar, JJ
CAPTAIN-PQ CHEMICAL INDUSTRIES (PVT.) LTD.----Petitioner
Versus
Messrs A.W. BROTHERS and others---Respondents
Civil Petition No.630-K of 2004, decided on 17th August, 2004.
(On appeal from the judgment of the High Court of Sindh, Karachi dated 13-7-2004 passed in H.C.A. No.97 of 2004).
(a) Civil Procedure Code (V of 1908)------
----O. XXI, R.65---Auction sale---Mere floating of the bid whether it is the highest or the lowest, does not create a legal right in favour of the bidder, hence the question of its infringement does not arise.
(b) Civil Procedure Code (V of 1908)-----
----O. XXI, Rr.65 & 90---Constitution of Pakistan (1973), Art.185(3)--Auction sale---Duty of Court---Auction proceedings have to be transparent and every possible effort to be made to fetch the maximum price closer to market value---Prime object of inviting tender is to provide equal opportunity to all the prospective bidders which was never' frustrated by accepting the highest bid---Contentions of the petitioner were that a bid was floated pursuant to an advertisement published in leading newspapers for the property with the description as property "B" which was subsequently consolidated with the property described as property "A" without notice to the petitioner and auctioned in favour of respondents and that since advertisement was made for two different properties, hence their consolidated auction could not have been made and that too without notice which resulted in serious miscarriage of justice---Validity--- Mere floating of the bid, whether it is the highest or the lowest, does not create a legal right in favour of the bidder, hence the , question of its infringement does not arise---Offer, in the present case, was also given to the petitioner, by the Court concerned to purchase the property in question by giving a matching offer, which was not responded for the reason that it was beyond their financial competency---Petitioner was only interested to purchase the property and had shown his inclination to do so but the bifurcation of property "B" from "A" would cause serious prejudice against to the respondents by whom an amount of Rs.36 crore was paid and would have also detrimental effect on the interest of judgment-debtor and the question of satisfaction of decree would have not arisen---Such bifurcation could not be done at that stage merely for the reason that a bid was floated by the petitioner---Court, in such-like eventualities was required to safeguard preliminarily the interest of judgment-debtor and further to see that auction proceedings had been conducted in a fair and transparent manners and no bar whatsoever had been imposed on the Court if some beneficial devices evolved to get maximum price and to achieve the said purpose---Court may make any amendment, deletion, insertion or change in the advertisement qua auction---Where no mala fide, arbitrary exercise of discretionary power, lack of transparency discrimination, favouritism, nepotism or unfairness had been found, provisions of O.XXI, R.90, C.P.C. could not be invoked.
(c) Civil Procedure Code (V of 1908)---
----O. XXI, R.90--- Where no mala fide, arbitrary exercise of discretionary power, lack of transparency discrimination, favouritism, nepotism or unfairness had been found, provisions of O.XXI, R.90, C.P.C. could not be invoked.
Asma Zafarul Hassan v. United Bank 1981 SCMR 108 ref.
Anwar Mansoor Khan, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.
Muhammad Ilyas Khan, Advocate Supreme Court for Respondent No. 1.
Shah Muhammad, Superintendent, Official Assignee's Office on Court notice.
Date of hearing: 17th August, 2004.