SCMR 2005 Judgments

2005 S C M R 1

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

ADEEL-UR-REHMAN and others---Petitioners

Versus

FEDERATION OF PAKISTAN and others---Respondents

Civil Petitions Nos.2648 to 2650 of 2003 and Civil Miscellaneous Applications Nos.3165 and 3167 of 2003 in Civil Petition No. Nil of 2003, decided on 17th May, 2004.

(On appeal from the judgment, dated 7-10-2003 of High Court of Sindh, Karachi passed in C.Ps. Nos.D-703, 704 and 770 of 2003 etc.).

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

----Art. 129(e)---Official acts---Presumption---Although presumption of regularity is attached to official acts and documents yet when genuineness of documents is doubtful, the Court has power to look into their correctness and validity.

Ch. Pervaiz Elahi v. Province of Punjab PLD 1993 Lah. 595 ref.

(b) Good governance---

---- Public health---Principle---Question of public health cannot be left at the discretion of persons who, for their vested interest, can go to any extent.

(c) Import Trade and Procedures Order, 2002-2003---

----Para.6, Appendix A---Customs Rules, 2001, R.226(7)---Pakistan Customs Tariff Heading 0802.9010---Notification S.R.O. 450(I)2001, dated 18.6.2001---Constitution of Pakistan (1973), Art. 185(3)---Betel nuts, import of---Infested consignment not fit for human consumption--­Authorities declined to release the consignments of importers for, the reason that according -to laboratory reports the came were infested to varying degrees and were not fit for human consumption---Plea raised by the importers was that on the basis of 9.10% infestation, the Authorities could not declare the entire consignment unfit for human consumption--­Further plea raised by the importers was that by appropriate process the infestation could be removed and remaining 90.90% consignment could be made fit for human consumption---Validity---According to Pakistan Customs Tariff, betel nuts were covered under Heading 0802.9010 as edible product---All edible products which were not fit for human consumption were banned items as mentioned in Negative List in Appendix A of Import Policy issued under Para.6 of Import Trade and Procedures Order 2002-2003 which restricted import of such items--­Importers had conceded before High Court that 9.10% of infested consignment could not be segregated visually from the entire consignment; segregation could only be made by cutting each betel nut into two parts; and monitoring of separation was not possible---In view of such admission, the test reports (procured by importers) could not be straightaway believed and further investigation about propriety and correctness of report was necessary and same could only be done after the experts entered the witness box---Importers had not come to the Court with clean hands as they had done whatever possibly they could do to get the consignments released, irrespective of the fact that if released, it could cause `candida albicans' (a serious infectious disease and mould which was another name of allergies caused by fungus and liver cancer)---Importers had not even hesitated to submit fake reports for achieving their purpose---Leave to appeal was refused.

Messrs Al-Hamad Eible Oil P. Ltd. v. Collector of Customs 2003.PTD 552; Messrs Onkarlal Nandal v. State of Rajasthan AIR 1986 SC 2146; Burmah Oil v. Trustees of the Port of Chittagong PLD 1962 SC 113; H.M. Saya & Co. v. Wazir Ali Industries Ltd. PLD 1969 SC 65; M.Y. Khan v. M.M. Aslam 1974 SCMR 196; Fazle Ghafoor v. Chairman Tribunal Land Disputes 1993 SCMR 1073; M.A. Rashid Rana v. Secretary Home, Government of Punjab 1996 SCMR 1145; Gatron (Industries) Ltd, v. Government of Pakistan 1999 SCMR 1072 distinguished.

Foundations in Microbiology by Kathleep Talaro and Arthur Talalro, Second Edition, William C Brown Publishers, London, pages 146, 535 and 698 and Tobacco Role in the Aetiology of Oral Cancer, Periodontal Disease and other Oral Lesions by Doctor Heddie O. Sedano published by Periodontics Information Centre, University of California, Los Angeles, page 5 ref.

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

----Art. 9---Word life'---Interpretation---Wordlife' in the Constitution has not been used in a limited manner---Wide meaning should be given to enable a man not only to sustain life but to enjoy it---Duty of the State is to see that the life of a person is protected as to enable him to enjoy it within the prescribed limits of law---Pollution, environmental degradation and impure food items also fall in the category of deprivation of life.

Ms. Shehla Zia v. WAPDA PLD 1994 SC 693 ref.

Dr. Babar Awan, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Petitioners (in C.Ps. Nos.2648 to 2650 of 2003).

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Applicants (in C.M.As. Nos.3165 and 3167 of 2003).

Abdul Hafeez Pirzada, Senior Advocate Supreme Court with M.M.S. Khattak, Advocate-on-Record for Respondents.

Ms. Naheeda Mehboob Elahi, Advocate Supreme Court, Standing Counsel.

Date of hearing: 17th May, 2004.

2005 S C M R 13

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah, Falak Sher and M. Javed Buttar, JJ

ZAKA ULLAH BAJWA---Petitioner

Versus

CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB, LAHORE and 2 others---Respondents

Civil Petition for Leave to Appeal No. 2769-L of 2004, decided on 17th September, 2004.

(On appeal from judgment, dated 31-8-2004, passed by the Punjab Service Tribunal Lahore in Appeal No. 1244 of 2004).

Punjab Civil Servants Act (VIII of 1974)---

----S. 9---Constitution of Pakistan (1973), Art.212(3)---Transfer order, cancellation of---Civil servant was transferred not only due to application but there were lot of complaints against him which were thoroughly probed in and finally it was found that the civil servant was not working according to the settled principles of good governance and was creating hurdles in the ordinary functions of the department---Appeal filed by civil servant was dismissed by the Authorities as well as by Service Tribunal---Validity---Request of civil servant seeking cancellation of transfer orders amounted to interference in the smooth working of Government and the civil servant as a right could not claim to be posted at one place, rather the civil servant was required to serve anywhere against the post to which he was transferred---Order of authorities as well as the judgment of Service Tribunal were in consonance with the law---Judgment passed by Service Tribunal was well-reasoned and was result of proper appreciation of available material and the provisions of law, which did not call for any interference by Supreme Court---No substantial question of law of general public importance as envisaged under Art.212(3) of the Constitution was involved in the case---Leave to appeal was refused.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 17th September, 2004.

2005 S C M R 17

[Supreme Court of Pakistan]

Present: Javed Iqbal and Abdul Hameed Dogar, JJ

SECRETARY, EDUCATION, N.-W.F.P., PESHAWAR and 2 others---Petitioners

Versus

MUSTAMIR KHAN and another---Respondents

Civil Petition 308-P of 2004, decided on 12th August, 2004.

(On appeal from the judgment of the N.-W.F.P. Service Tribunal, Peshawar, dated 14-2-2004 passed in Appeal No. 1171 of 2003).

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

----S.4---North-West Frontier Province Civil Servants Act (XVIII of 1973), S.4---Constitution of Pakistan (1973), Art.212(3) --- Appeal against transfer order passed at behest of Minister of Education--­Refusal of civil servant to comply with illegal orders of Minister--­Service Tribunal accepted appeal of civil servant---Validity---Education District Officer at the direction of Minister had required civil servant to settle leave account of an Officer, who had remained absent from duty for about 3 years without prior approval of competent authority---Leave account could not be maintained as per whims and wishes of Minister, but relevant leave rules were to be followed---Civil servant could not be punished for his refusal to act illegally, rather his moral courage should be appreciated----Where order passed by departmental authority was mala fide, then Service Tribunal would have jurisdiction to interfere and set aside the same---Service Tribunal had set right manifest injustice---No question of law of public importance was involved--­Supreme Court dismissed petition and refused to grant leave to appeal.

Riaz Hussain v. State 1986 SCMR 1534; Secretary Finance, Government of Punjab v. Mian Ghulam Bari f984 SCMR 642 and Zahid Akhtar v. Government of Punjab PLD 1995 SO 530 rel.

(b) North-West Frontier Province Civil Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 3 & 4---Wilful absence from duty---Effect---Such absence would amount to misconduct and on its basis, major penalty of dismissal from service could be imposed.

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

----S. 4---Transfer order, appeal against---Maintainability---Transfer of any civil servant could be made by competent authority in the exigency of service and pubic interest---Civil servant had no legal right to remain posted at a particular place---Transfer order, if mala fide and made for extraneous considerations to accommodate some blue-eyed chap, then matter would squarely fall within jurisdictional domain of Service Tribunal.

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

----S. 4---Mala fide order of departmental authority---Service Tribunal would have jurisdiction to interfere and set aside the same.

Riaz Hussain v. State 1986 SCMR 1534 rel.

(e) Civil Service---

---- Civil servant could not be punished for his refusal to act illegally; rather his moral courage should be appreciated.

Secretary Finance, Government of Punjab v. Mian Ghulam Bari 1984 SCMR 642 and Zahid Akhtar v. Government of Punjab PLD 1995 SC 530 rel.

Tasleem Hussain, Advocate Supreme Court for Petitioners.

Respondent No. 1 in person.

Date of hearing: 12th August, 2004.

2005 S C M R 22

[Supreme Court of Pakistan]

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

GOVERNMENT OF N.-W.F.P. through Secretary Education and others---Petitioners

Versus

RUKHSAR ALI and 24 others---Respondents

Civil Petitions Nos.594-P to 616-P, 619-P and 620-P of 2003, decided on 23rd July, 2004.

(On appeal from the judgment, dated 3-7-2003 passed by the Peshawar High Court, Peshawar in Writ Petitions Nos.239, 247, 374, 431, 514, 620, 703, 739, 788, 874, 875, 879, 883, 901, 902, 944, 965, 980, 1188, 1207, 1234, 1133, 882, 704 and 873 of 2002 respectively).

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

----R. 10---Constitution of Pakistan (1973), Art.212---Policy decision--­Retrospective effect---Initial appointments---Conditions of service--­"Regular" or "contract basis" ---Respondents appeared before Public Service Commission and were selected--- Posts advertised were on regular basis but on appointment letters it was written on contract basis'---Such appointment letters were assailed before High Court in exercise of Constitutional jurisdiction---High Court allowed the petitions and declared the appointments on "contract basis" as void and ineffective---Plea raised by the Authorities was that after the process of recruitment was completed, it was decided in a meeting of Provincial Cabinet to make all fresh recruitments on contract basis---Validity---All posts fell within the purview of Public Service Commission and hence as per R.10 of North-West Frontier Province Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, such initial appointments were to be made on the basis of examination or test to be conducted by the Commission---If the appointments were intended to be otherwise than on 'regular basis', the manner of recruitment could differently be determined by the Government under R.10(b) of North-West Frontier Province Civil Servants (Appointment, Promotion and Transfer) Rules, 1989---Process of recruitment was completed in the year 1999/2000 but subsequently on the basis of meeting of Provincial Cabinet held on 1.7.2001, it was decided to make all fresh recruitments on "contract basis" and not on "regular basis"---Such change was not permissible because any policy so made was bound to take effect prospectively and not retrospectively---High Court had rightly allowed the petitions and declared the `contract basis' as void and ineffective--­Leave to appeal was refused.

Imtiaz Ali, Additional Advocate General, N.-W.F.P. for Petitioners (in all C.Ps.).

Qazi Muhammad Jamil, Senior Advocate Supreme Court with Haji Muhammad Zahir Shah, Advocate-on-Record for Respondents (in C.Ps. Nos.595-P, 596-P, 598-P, 600-P, 609-P and 619-P of 2003).

Abdul Aziz Kundi, Advocate Supreme Court/Advocate-on­-Record for Respondents (in C.Ps. Nos.601-P, 603-P to 608-P, 610-P, 613-P to 616-P and 620-P of 2003).

Nemo for other respondents.

Date of hearing: 23rd July, 2004.

2005 S C M R 25

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J. Javed Iqbal and Abdul Hameed Dogar, JJ

ABID HASSAN and others---Petitioners

Versus

P.I.A.C. and others---Respondents

Civil Petitions Nos. 262-K to 265-K of 2004, decided on 14th September, 2004.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad, dated 30-1-2004 passed in Appeals Nos.909/K(CE) to 911/K(CE) and 920/K(CE)/2003).

(a) Pakistan International Airline Corporation Flight Operation Manual Transition Training General---

---R. 6 (1)---Administrative Order No. 17/2001 (Cockpit Crew Service Rules), dated 17.7.2001---Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Selection for foreign training---Discrimination, effect of--­Guidelines for selection---Appellants being pilots were initially selected for training of Boeing-777 in U.S.A. but later on they were directed to attend Airbus-310 Technical Course---Appeal filed by the appellants, against the order directing change in course was dismissed by Service Tribunal---Contention of the authorities was that the selection of appellants was probable selection'---Plea raised by the appellants was that they had been discriminated and the provisions as contained in Administrative Order No.17/2001 (Cockpit Crew Service Rules), dated 17-7-2001, were misinterpreted and misconstrued by Service Tribunal--­Validity---Appellants were finally selected for training on Boeing-777 in USA and all necessary formalities were completed---Relevant literature of training was made available to the appellants, necessary formalities were completed and the clearance of USA Department of Justice was obtained and reservations were also made to send the appellants to USA for training on Boeing-777, therefore, it was not aprobable selection'--­Direction to appellants regarding training of Airbus-310 Technical Course was not in consonance with the Training Policy particularly, the provisions as enumerated in R.6 (1) of Flight Operation Manual Transition Training General, which were mandatory in nature and had binding effect---Pakistan International Airline Corporation could not alter, amend, change or violate the binding effect of the provisions, without reasonable justification which was lacking in the present case--­No discretion had been conferred upon the authorities by any statute, enactment, by law or any directive having legal sanctity to violate the Rules, Regulation and Policy to accommodate someone who otherwise could not have been accommodated---Direction to the appellants was designed to deprive them of their valuable vested and substantive right to proceed on training on Boeing-777 which was professionally higher in category with better technology than Airbus-310 which would result in heavy professional and financial loss to the appellants---As 27 pilots out of 34 had been sent for training on Boeing-777 in USA in accordance with the Training Policy and seniority, the appellants could not be deprived of such training without any season which would have substantial bearing on their future prospects---Supreme Court noted it with concern that there was need to rescind all discretionary powers in the hands of those enjoying authority in Pakistan International Airline Corporation which should be exercised in accordance with Rules and Regulations having no element of arbitrariness in them---Supreme Court directed that in future such selections must be fair, transparent and in accordance with the Training Policy and not behind screen of secrecy and doubts as the same would be in the interest of Pakistan International Airline, Corporati6n itself---Whimsical and arbitrary action could create acute feeling of dismay, despair, despondency and deprivation which could affect the performance of Pakistan International Airline Corporation---Such selection must be made on merit/fitness and seniority---Judgment passed by Service Tribunal was set aside and Supreme Court directed the authorities to consider the nomination of appellants for training on Boeing-777 at USA in the next training course there---Appeal was allowed.

(b) Plea---

---- Contradictory plea---Effect---Authorities had taken contradictory pleas before various forums such as High Court, Service Tribunal, National Assembly and Supreme Court---Supreme Court declined to reconcile such contradictory statements, as the same depicted unfair practice, lack of honesty and straightforwardness.

(c) Administration of Justice---

----Discretionary decisions and arbitrary decisions ---Distinction--­Discretionary decisions should be made according to rational reasons---In discretionary decisions there be findings of primary facts based on good evidence and the decisions about the facts be made for reasons which serve the purpose of statute in intelligible and reasonable manner--­Whereas the actions which do not meet the 'threshold requirements as mentioned in discretionary decisions are arbitrary, and may be' considered a misuse of powers.

A.K. Brohi in his treatise Fundamental Law of Pakistan rel.

(d) Discretion---

---- Discretionary power---Pre-conditions---Seven instruments that are the most useful in structuring of discretionary power are open plans, open policy statement, open rules, open findings, open reasons, open precedents and fair informal procedure.

Amanullah Khan and others v. Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092 and Government of N.-W.F.P. v. Mejee Flour and General Mills (Pvt.) Ltd. 1997 SCMR 1804 rel.

(e) Discretion---

----Exercise of discretion---Principle---Functionaries of any organization or establishment cannot be allowed to exercise discretion at their whims, sweet will or in an arbitrary manner; rather they are bound to act fairly, evenly and justly.

Amanullah Khan and others v. Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092; Chairman R.T.A. v. Pakistan Mutual Insurance Company PLD 1991 SC 14; Pacific Multinational (Pvt.) Ltd. v. I.-G. of Police PLD 1992 Kar. 283; Presson Manufacturing Ltd. v. Secretary, Ministry of Petroleum and Natural Resources 1995 MLD 15; Ramana v. I.A. Authority of India AIR 1979 SC 1628; Dwarka Nath Prasad Atal v. Ram Rati Devi AIR 1980 SC 1992; Ram and Shyam Company v. State of Haryana AIR 1985 SC 1147 and Nizamuddin v. Civil Aviation Authority 1999 SCMR 467 rel.

Raja Qureshi, Advocate Supreme Court with Ali Muhammad Baloch, Advocate Supreme Court for Petitioners (in all Petitions).

Sajid Zahid, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Respondent Nos. 1 to 5.

Nemo for Respondents Nos. 6 to 9.

Ms. Nahida Mahboob Elahi, Standing Counsel with Ch. Naseer Ahmed, Advocate Supreme Court for Attorney General.

Date of hearing: 14th September, 2004.

2005 S C M R 37

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J. Javed Iqbal and Abdul Hameed Dogar, JJ

COLLECTOR OF CUSTOMS, LAHORE and others---Petitioners

Versus

UNIVERSAL GATEWAY TRADING CORPORATION and another--- Respondents

Civil Petition No. 1884-L of 2004, decided on 30th June, 2004.

(On appeal from the order of the Lahore High Court, Lahore, dated 28-5-2004 passed in W.P. No.2812 of 2004).

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

----Art.199---Constitutional jurisdiction--Disputed question of fact--­Principle-- Controversial questions cannot be resolved in exercise of Constitutional jurisdiction.

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

----Ss. 179, 193, 194-A & 196---Constitution of Pakistan (1973), Art. 199---Constitutional jurisdiction of High Court, exercise of--­Alternate efficacious remedy---Scope---Constitutional jurisdiction should not have been exercised for the reason that efficacious, remedies should have been invoked as were available under Ss. 179, 193, 194-A and 196 of Customs Act, 1969, which could have been conveniently availed by the importers by approaching concerned forum available in the hierarchy of Customs laws---Jurisdiction conferred upon such forum, could not be exercised by High Court under the garb of Art. 199 of the Constitution.

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

----Ss. 162 & 163---Search without warrant---Principle---Importers paid customs duty on the goods imported by them but Customs Intelligence Authorities conducted raid and intercepted the goods and seized them on the ground of misdeclaration---Plea raised by importers was that all proceedings initiated against seizure of goods were ab initio void as the mandatory provisions as contemplated in S.163 of the Customs Act, 1969 were not adhered to in letter and spirit---Validity---Search was conducted without having the search warrants for the reason that it could have been done in view of the circumstances 'prevalent at the relevant moment which could only be adjudged by the concerned officer under whose supervision the raid was being conducted-- As such the same could not be done in a routine practice and every possible effort should be made to comply with the provisions as enumerated in Ss.162 and 163 of Customs Act, 1969---Plea raised by the importer was repelled.

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

----Ss.162, 163, 171, 179, 193, 194-A & 196---Notification S.R.O. No.495(I)/85-- Customs duty, levy of---Misdeclaration---Alternate efficacious remedy---Search without warrant---Apprehension of removal of smuggled' goods---Registration of case against importers---Importers paid customs duty on the goods imported by them but Customs Intelligence Authorities conducted raid without warrant, intercepted the goods and seized them on the ground of misdeclaration and registered criminal case against them---Importers assailed the order of Customs Authorities in Constitutional petition before High Court wherein the Court directed the authorities to release the goods on furnishing of surety bond---Authorities raised the plea that in presence of sufficient and efficacious remedy Constitutional petition before, High Court was not maintainable---Validity---Authorities had conducted search in view of strong apprehension of removal of the suspected smuggled goods--­Notices under S.171 of the Customs Act, 1969, were also served upon the importers---All legal formalities were completed by the Customs Authorities before searching the godown---Registration of case against importers did not warrant interference by High Court in its Constitutional jurisdiction---Although under ordinary circumstances, provisions as contained in S.162 of Customs Act, 1969, must be implemented yet in urgent and emergent situation, search could be conducted without having search warrant subject to conditions as enumerated in S.163 of Customs Act, 1969---Judgment passed by High Court was set aside and the importers were directed to approach the forum concerned available in the hierarchy of Customs laws for the redressal of their grievance---Appeal was allowed.

"Dr. Sajjad Ahmad v. Dr. Muhammad Bashir PLD 1979 Lah. 304; K.M. Asaf v. Abdullah Malik PLD 1976 Lah. 158; S.M. Yousaf v. Collector of Customs PLD 1968 Kar. 5'99, Iqbal Akhtar v. Ch. Muhammad Mushtaq PLD 1977 Lah. 1318; State, Life Insurance Corporation of Pakistan v. Pakistan Tobacco Co. Ltd. PLD 1983 SC 280; Attaur Rehman Khan v. Dost Muhammad, 1986 SCMR 598; Muhammad Akhtar v. President, Cantonment Board, Sialkot Cantt. 1981 SCMR 291; Mian Muhammad v. Government of West Pakistan 1968 SCMR 935; Zahid Hussain v. Dharmumal 1971 SCMR 110; Zuhra Begum v. Sajjad Hussain 1971 SCMR 697; Landale and Morgan (Pak.) Ltd. v. Chairman, Jute Board, Dacca 1970 SCMR 853; Mahboob Alam v: Secretary to Government of Pakistan 1969 SCMR 217; Umar Daraz v. Muhammad Yousaf 1968 SCMR 880; Saghir Ali v. Mehar Din 1968 SCMR 145; Punjab Beverage Company (Pvt.) Ltd. v. Central Board of Revenue 2001 PTD 3929, Shahid Agency v. Collector of Customs 1989 CLC 1938; Ali Hussain v. Presiding Officer PLD 1989 Kar. 157; Bhagan v. State PLD 1990 Quetta 41; Mojakkir Ali v. Regional Transport Authority PLD 1967 Dacca 6; Azizur Rahman v. F.A.T.A. Development Corporation PLD 1988 Pesh. 9; Collector of Customs v. Muhammad Mahfooz PLD 1991 SC 630, Shaheen Calico Printing Works v. Mumtaz Ali PLD 1975 Lah. 1442; Muhammad Yousaf v. The Collector of Sea Customs, Karachi PLD 1969 SC 153; S.M. Yousuf v. The Collector of Customs, Karachi 1972 SCMR 87; Sher Bahadur v. Chairman, Industrial Relations Commission PLD 1975 Kar. 483 and Shaukat Hussain v. Zulfiqar Ahmed PLD 1981 Lah. 13 ref.

Ahmer Bilal Soofi, Advocate Supreme Court with Faiz-ur-­Rahman, Advocate-on-Record for Petitioners.

Syed Najmul Hasan Kazmi, Advocate Supreme Court for Respondents.

Date of hearing: 30th June, 2004.

2005 S C M R 49

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah, Falak Sher and M. Javed Buttar, JJ

JAWED MALIK ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.80 of 1999 decided on 15th September, 2004.

(On appeal from the judgment/order of the High Court of Sindh, Karachi, dated 20-4-1998, passed in Special Anti-Terrorism Appeal No. 12 of 1997).

Penal Code (XLV of 1860)---

----S. 302---Appraisal of evidence---Prosecution evidence inspired confidence which was fully supported by ocular and circumstantial evidence as well as by medical evidence---Accused had committed a cold­-blooded murder---When case for Qatl-e-Amd was proved against the accused, normal sentence of death was to be awarded to him---High Court had rightly awarded the death sentence to accused under the law which did not warrant any interference and was maintained accordingly.

Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452; Bakhshis Elahi v. State 1977 SCMR 309 and Salmond on Jurisprudence 10th Edn. at p. 111 ref.

Syed Ali Hassan Gillani, Advocate Supreme Court for Appellant.

Fakhruddin G. Ibrahim, Senior Advocate Supreme Court for the Complainant.

Raja Abdul Ghafoor, Advocate-on-Record on behalf of Advocate-General, Sindh for the State.

Date of hearing: 15th September, 2004.

2005 S C M R 54

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

Messrs PAKISTAN TOURISM DEVELOPMENT CORPORATION LTD, and another---Petitioners

Versus

COLLECTOR, CUSTOMS CENTRAL EXCISE AND SALES TAX, LAHORE and others---Respondents

Civil Review Petitions Nos.66 and 71 of 2002, decided on 17th September, 2004.

(On appeal from the judgment dated 15-4-2002 of this Court passed in Civil Appeal No.1587 of 1999 and C.P. No.2564-L of 2000).

(a) Sales Tax Act (VII of 1990)---

----S. 2(28)---Term "General Public" occurring in S.2(28), Sales Tax Act, 1990---Meanings---"General Public" is not confined to citizens of a municipality but embraces all the people and is represented by the Legislature---Spirit of the term "General Public" is not to limit its scope but to enhance it and there is no legal justification for a narrow construction of the said term-Word "general" means "relating to genus or whole class; including various species; not "Special", not restrict or "Specialized" relating to the whole of to all or most.

Words and Phrases Permanent Edition Volume 18 by Gabardine Gondola and Chambers English Dictionary quoted.

Goalundo Ice Association Ltd. v. Commissioners of the Rajabari Municipality PLD 1952 Dacca 12 not approved.

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

----Art. 188---Supreme Court Rules, 1980, O.XXVI---Review of Supreme Court judgment---Points raised in the review petitions were considered and repelled in the impugned judgment---Plea that specified words had not been correctly interpreted by the Supreme Court was no ground for review as review was not for rehearing the matter.

(c) Words and phrases---

----"General public" ---Connotation.

Words and Phrases Permanent Edition Volume 18 by Gabardine Gondola and Chambers English Dictionary quoted.

(d) Sales Tax Act (VII of 1990)---

----Ss. 2(28) & 13----Taxable supply---Making taxable supply as a hotel and supply of liquor are distinct and are to be treated as such---Plea that once assessees were registered for making taxable supply as a hotel, they were not required to be registered for second time as retailers of liquor was repelled.

Ali Sibtain Fazli, Advocate Supreme Court for Petitioners (in both Petitions).

Nemo for Respondents.

Date of hearing: 17th September, 2004.

2005 S C M R 57

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Sardar Muhammad Raza Khan, JJ

CHAIRMAN/MANAGING DIRECTOR, PAKISTAN INTERNATIONAL AIRLINES CORPORATION and another---Petitioners

Versus

NISAR AHMED BHUTTO ---Respondent

Civil Petition for Leave to Appeal No. 2710 of 2001, decided on 6th October, 2004.

(On appeal from the judgment dated 12-7-2001, passed by the Federal Service Tribunal, Islamabad in Appeal No. 467(K) of 1998).

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Termination of service--- Reinstatement---Misconduct---Proof---Principles of natural justice, violation of---Pakistan International Airlines Corporation alleged that the employee was recommended of then Prime Minister's Secretariat but no document was produced to show that even the application of the employee was forwarded by the Prime Minister's Secretariat---Only minutes of meeting were produced to prove that the case of employee was of misconduct or lack of qualification---Even the assessment made by Selection Board had not been placed before Service Tribunal which could show that the employee was not a fit person to be retained in service--­Service Tribunal found that the termination of the employee was without any justification and principles of natural justice had been violated--­Appeal of the employee was accepted by Service Tribunal and he was reinstated in service---Validity---Employee was a qualified person and was appointed by Selection Board which consisted of four persons---Judgment of Service Tribunal was the result of proper appreciation of material available and was in consonance with law, which did not call for any interference by Supreme Court---Leave to appeal was refused.

Javed Altaf, Advocate Supreme Court and Sheikh Salah-ud-Din, Advocate-on-Record (absent) for Petitioners.

Nemo for Respondent.

Date of hearing: 6th October, 2004.

2005 S C M R 65

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J. and Tassaduq Hussain Jilani, J

SAJJAD HUSSAIN BUKHARI---Petitioner

Versus

TREASURER OF CHARITABLE ENDOWMENT FOR PAKISTAN, HEAD OFFICE, ISLAMABAD and others---Respondents

Civil Petition No.450 of 2004, decided on 11th October, 2004.

(On appeal from the order, dated 20-12-2003 passed by Federal Service Tribunal, Lahore in Appeal No.340(L)(C.E.)/2000).

Charitable Endowments Act (VI of 1890)---

----Ss. 2 & 3---Notification S.R.O. 698(I)/95---Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Employee of Trust for Voluntary Organization---Status---Petitioner was dismissed from service on the allegation of financial embezzlement, misuse of office transport and committing rape with a young girl in his office---Appeal before Service Tribunal was dismissed being not maintainable as the petitioner was not a civil servant---Plea raised by the petitioner was that the Organization was State controlled and he fell within the domain-of S.2-A of Service Tribunals Act, 1973---Validity---Trust for Voluntary Organization was not a Governmental organization performing any function of Federal Government or Provincial Governments but was a charitable organization established under Charitable Endowments Act, 1890, to promote the aims and objects of the scheme---Role of Federal Government or Provincial Government in terms of Charitable Endowments Act, 1890 and the scheme was merely that of a guide and of extending cooperation so that the aims and objects could remain in focus---Trust was not a `person' performing the functions in consonance with the affairs of Federation or Province and its employees could not be treated as "civil servants"---Service Tribunal had rightly declared that the petitioner was not a civil servant and the relationship of the employees with Trust for Voluntary Organization was that of master and servant--­Judgment of Service Tribunal was unexceptionable and did not call for interference---Leave to appeal was refused.

Sabhajit Tewary v. Union of India and others AIR 1975 SC 1329 and Ziaullah Khan Niazi v. Chairman, Pakistan Red Crescent Society 2004 SCMR 189 ref.

Syed Aqa Asaf Jaffary, Advocate Supreme Court and M. A. Zaidi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 11th October, 2004.

2005 S C M R 69

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Sardar Muhammad Raza Khan, JJ

CHAIRMAN PAKISTAN AGRICULTURAL RESEARCH COUNCIL (PARC), ISLAMABAD and another---Petitioners

Versus

Dr. ABDUL RASHID, SCIENTIFIC OFFICER, OILSEED RESEARCH PROGRAMME, PARC, ISLAMABAD---Respondent

Civil Petition for Leave to Appeal No. 1858 of 2002, decided on 5th October, 2004.

(On appeal from the judgment/order of the Federal Service Tribunal, Islamabad, dated 10-8-2002, passed in Appeal No.2075(R) of 1999).

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Appeal before Service Tribunal---Limitation---Civil servant was attending a training course abroad when he was promoted to next grade- --Promotion order of civil servant was withdrawn due to his attending the training---Civil servant on his return filed departmental representation and being unsuccessful filed appeal before Service Tribunal---Appeal was accepted by Service Tribunal on the ground that the appeal filed by civil servant was not time-barred for the reason that the orders of promotion and its withdrawal were not conveyed to him---Validity---Judgment of Service Tribunal did not suffer from any illegality or from any misreading of the facts---Authorities failed to point out any illegality in the judgment which was in consonance with the law laid down by Supreme Court---Leave to appeal was refused.

Sh. Riaz-ul-Haq, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioners.

S.M. Abdul Wahab, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent.

Date of hearing: 5th October, 2004.

2005 S C M R 72

[Supreme Court of Pakistan]

Before Faqir Muhammad Khokhar and Tassaduq Hussain Jilani, JJ

RAFIQUE HAZQUEL MASIH---Petitioner

Versus

BANK ALFALAH LTD. and others ---Respondents

Civil Petition No. 233-L of 2003, decided on 4th August, 2004.

(On appeal from the order dated 14-11-2002 passed by Lahore High Court, Lahore, in E.F.A. No.758 of 2002).

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

----S. 19---Contract Act (X of 1872), S.128---Constitution of Pakistan (1973), Art.185(3)---Execution of decree---Liability of guarantor--­Petitioner being guarantor was aggrieved of execution proceedings initiated against him---Plea raised by the petitioner was that before first proceeding against the principal debtor, no proceedings should have been initiated against him---Validity---Having given undertaking regarding guarantee, it was not open for the petitioner to wriggle out of it and raise such plea---Liability of surety under S.128 of Contract Act, 1872, was co-extensive with that of the principal debtor, unless it was otherwise provided by the contract---In absence of any specific stipulation in the contract of loan or any other consideration of equity a guarantor could not take up the plea as raised by the petitioner---Bank had granted loan only on the guarantee and in absence of letter/contract of guarantee the Bank might not have sanctioned the loan---Leave to appeal was refused.

Ghulam Mustafa Jatio v. Additional District and Sessions Judge/Returning Officer, N.A. 158 Naushero Feroze and others 1994 PSC 751 and The Bank of Bihar Ltd. v. Dr. Damodar Prasad and another AIR 1969 SC 297 distinguished.

United Bank Ltd. v. Haji Bawa Company Ltd. and 3 others 1981 CLC 89; National Bank of Pakistan v. F.S. Aitzazuddin and 2 others PLD 1982 Kar. 577; Messrs. U.B.L. v. Messrs Sindh Tech. Industries Ltd. and others 1998 CLC 1152; Mrs. Muhammad Shafi through Agent v. Sultan Ahmed 2000 CLC 85 and Habib Bank Limited v. Malik Atta Muhammad and 4 others 2000 CLC 451 ref.

Ch. Muhammad Amin Javed, Advocate Supreme Court and Mahmud-ul-Islam, Advocate-on-Record for Petitioner.

Syed Ali Zafar, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Respondents.

Date of hearing: 4th August, 2004.

2005 S C M R 76

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J. and Javed Iqbal, J

MUHAMMAD YAQOOB---Petitioner

Versus

SECRETARY, LOCAL GOVERNMENT AND RURAL DEVELOPMENT DEPARTMENT, LAHORE and others---Respondents

Civil Petition No.3945-L of 2001, decided on 28th October, 2004.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 19-10-2001 passed in W.P. No.2753 of 1995).

Punjab Local Council Service (Appointment and Conditions of Service) Rules, 1983---

----R. 5(3)---Relaxation of age for appointment by Chairman of the Municipal Committee---Scope---Chairman of Municipal Committee was conferred powers under R.5(3), Punjab Local Council Service (Appointment and Conditions of Service) Rules 1983 to give relaxation in upper age limit upto 5 years---Appointment of a person who was overage at the time of appointment and his upper-age limit having been relaxed by the Chairman upto two years, could not be said to be illegal.

Rana Muhammad Arif, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Petitioner.

Mrs. Afshan Ghazanfer, A.A.-G. Punjab on Court Notice.

Date of hearing: 28th October, 2004.

2005 S C M R 80

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Sardar Muhammad Raza Khan, JJ

DIRECTOR-GENERAL, NATIONAL SAVINGS, ISLAMABAD and another---Petitioners

Versus

RAHAT ALI SHERWANI, ASSISTANT DIRECTOR, NATIONAL SAVINGS, ISLAMABAD---Respondent

Civil Petition for Leave to Appeal No.3094 of 2003, decided on 4th October, 2004.

(On appeal from the judgment/order of the Federal Service Tribunal, Islamabad, dated 12-9-2003, passed in Appeal No.462(R)CS of 2002).

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Promotion to next grade---Fixation of seniority---Promotion of civil servant was deferred many times for the reasons that either disciplinary proceedings were pending against him or he was on deputation and had not earned one good report in his parent department---Finally the case of civil servant was recommended for promotion on 23-1-2002---Recommendation was assailed by civil servant before Service Tribunal for fixation of his seniority---Service Tribunal allowed the appeal to the extent that seniority of civil servant be reckoned from the date when his junior was promoted--Plea raised by the authorities was that Service Tribunal under the provisions of S.4(1)(b) of Service Tribunals Act, 1973, did not have jurisdiction to interfere in the matter of promotions---Validity---Civil servant had earned five good/very good/outstanding Annual Confidential Reports and he had also completed successful training for language course abroad---One official, junior to the civil servant was promoted on the recommendation of Departmental Promotion Committee in it meeting held on 3-8-1992---Judgment passed by Service Tribunal was in accordance with law laid down by Supreme Court and the same was not interfered with---Leave to appeal was refused.

Deputy Inspector-General of Police, Gujranwala and others v. Anwar Saeed, Inspector Police and others 1997 PLC (C.S.) 584 rel.

Government of Pakistan v. Hameed Akhtar Niazi PLD 2003 SC 110 distinguished.

Nasir Saeed Sheikh, Deputy Attorney-General and Ch. Muhammad Ikram, Advocate-on-Record for Petitioners.

Shah Abdur Rashid, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent.

Date of hearing: 4th October, 2004.

2005 S C M R 85

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sardar Muhammad Raza Khan and Khalil-ur-Rehman Ramday, JJ

MUHAMMAD SHOAIB and 2 others---Appellants

Versus

GOVERNMENT OF N.-W.F.P. through The Collector, D.I. Khan and others---Respondents

Civil Appeals Nos. 1283 to 1285 of 2001, decided on 14th October, 2004.

(On appeal from the judgment dated 13-1-2001 passed by the N.-W.F.P. Service Tribunal, Peshawar in Appeals Nos.1181, 1187 and 1421 of 1997).

Per Sardar Muhammad Raza Khan, J. Javed Iqbal, J. agreeing:---

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

----Art. 212(3)---Leave to appeal was granted by Supreme Court to consider; whether the appointments of civil servants were illegal and void ab initio being against the prescribed rules; and whether the Government having first appointed the civil servants without observing the codal formalities, could subsequently turn around and say that such appointments were illegal.

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

----S. 4---Removal from service---Audi alteram partem, principle of--­Applicability---Illegal act of authorities---Effect---Civil servants were appointed in Agriculture Department without any advertisement and test---Civil servants were removed from service without any show-cause notice on the ground that their appointments were illegal and against the prescribed rules---Service Tribunal dismissed the appeal ---Validity--­Authorities were bound to issue show-cause notice to the civil servants in that regard---If such notice would have been issued, the civil servants might have come out with the defence that the appointments were not illegal and that the illegality, if at all, had been committed by the department itself for which action the civil servants could not be penalized---Civil servants in circumstances, were condemned unheard and were made to suffer for the illegality committed by the Government itself---Principle of natural justice and audi alteram partem, was violated and non-issuance of notice could not be ignored unless a fair opportunity of representing their point of view had been given to the civil servants at one stage or the other---No such opportunity was given at any stage before termination of service---Supreme Court required that action be taken against those who were guilty of making illegal appointments and deprecated that the same authority committed illegality itself not once but twice; one at the time of appointment and second at the time of removing the civil servants from service---Authority could not be allowed to punish others for the illegal acts of its own---Order of removal from service of civil servants was declared void as well as violative of the principles of natural justice, locus poenitentiae and estoppel ---Judgment passed by Service Tribunal was set aside and civil servants were reinstated in service with back benefits---Appeal was accepted.

Mst, Maryam Yunus v. Director of Education PLD 1990 SC 666; Secretary to Government of N.-W.F.P. Zakat/Social Welfare Department, Peshawar v. Sadullah Khan 1996 SCMR 413; Syed Sikandar Ali Shah v. Auditor General of Pakistan 2002 SCMR 1124 and Nisar and 9 others v. Government of, N.-W.F.P. and others(Civil Appeals No.616 of 2002) ref.

(c) Good governance---

----Change of administration---Non-endorsing of action of previous administration---Illegal appointments withdrawn by new administration--­Effect ---Government is perpetual entity---Heads may change but government does not---Action once taken by one administration is to be followed by the changed administration more particularly when it involves employment of people---Thousands of people are rendered jobless and tens of thousands of families are rendered destitute simply because some subsequent administration did not endorse action of previous administration---People in present times are rendered jobless in order to accommodate certain other people of their own choice as such the same is tantamount to creating false sense of achieving employment levels---Action is required to be taken against those who are guilty of making illegal appointments.

Per Khalil-ur-Rehman Ramday, J. [Minority view]---

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

----S. 4---Removal from service---Illegal appointments---Posts on which the civil servants were appointed were not advertised and no merit list was prepared---Civil servants were yet on probation when the Government was changed and the civil servants were removed from service---Civil servants did not have outstanding academic career and had a little more than 50% marks in matriculation examination---Appeal against the order of removal was dismissed by Service Tribunal--­Validity---Was not believable that in whole of North-West Frontier Province no young man could ever manage to obtain a grade better than the one had by the civil servants who were appointed to the posts in question---Civil servants were not the best available to serve the people, the province and the country, as such the appointments in question were a serious encroachment upon the rights of the people and the country who consequently stood deprived of their rights and were the sufferers of illegal exercise of appointments of the civil servants---In the process of appointments of the civil servants, another silent sufferer was the victim of atrocity comprising of young men who could well be much better qualified and consequently much more eligible and worthy of holding the posts in question but were deprived of their right because of un-ethical, dishonest and immoral act leading to the appointment of civil servants in secret and clandestine manner---Appointments in question were illegal and unlawful not only that they had been made in a manner offensive of rules and law on the subject but also because they had been made in serious violation of the merit and transparency and that the same had deprived people and country of their right to be served by the best---Such appointments had also trampled over the rights of other, better and more qualified persons---Appeals which intended to seek protection of ill­-gotten gains and perpetuation of un-ethical illegality deserved to be dismissed so that the Court could not be blamed for encouraging a culture where might was right and where people were permitted to secure benefits through unfair means---Appeal was dismissed.

(e) Administration of justice---

---- Establishment of Courts---Purpose, scope and object---Object of establishment and continued existence of Courts of law is to dispense and foster justice and to right the wrongs---Purpose can never be completely achieved unless the injustice done was undone and unless the Courts stepped in and refused to perpetuate what was patently unjust, unfair and unlawful---It is for such reason that the Courts have never permitted their judicial powers to be invoked or used for retention of illegal and ill­-gotten gains---Courts have never opted to exercise their powers in aid of injustice or to grant any relief to persons with un-clean hands or for protecting the un-ethical or undeserved benefits.

Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236, The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others 1975 SC 331; Syed Nazim Ali and others v. Syed Mustafa Ali and others 1981 SCMR 231; Wali Muhammad and others v. Sakhi Muhammad and others PLD 1974 SC 106; Tufail Muhammad and others v. Raja Muhammad Ziaullah and others PLD 1965 SC 269; Khiali Khan v. Haji Nazir and others PLD 1997 SC 304; Abdul Haq Indhar and others v. Province of Sindh and others 2000 SCMR 907 and Farzand Ali v. Province of West Pakistan PLD 1970 SC 98 ref.

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

----S. 4---Removal from service---Principle of audi alteram partem--­Issuance of show-cause notice---Principles---Civil servants were removed from service for the reason that the appointments were illegal and were made in violation of prescribed rules---Appeal was dismissed by Service Tribunal---Plea raised by the civil servants was that no show-cause notice was issued to them and they were condemned unheard ---Validity--­Reversing an action taken initially without issuing a show-cause notice was not a principle of universal application---Courts had consistently refused to intervene in such a situation where the concerned person had an opportunity of hearing available to him at the appellate stage and had in fact availed the same---Undoing of such act was also refused where the facts leading to the impugned action were uncontrovertible and admitted and where despite a prior hearing, the results could and would not have been any different---Absence of show-cause notice to the civil servants before they were thrown out of service especially when they had been heard at departmental appeal, was not fatal to the act of their dismissal from service at the instance of competent authority---Judgment of Service Tribunal was maintained and order of removal from service was not interfered with---Appeal was dismissed.

S.L. Kapoor v. Jagmohan and others AIR 1981 SC 136; Muhammad Ishaq v. Said-ud-Din PLD 1959 Kar. 669 and Abdul Haq Indhar and others v. Province of Sindh and other 2000 SCMR 907 ref.

Khushdil Khan, Advocate Supreme Court and M. Zahoor Qureshi, Advocate-on-Record (absent) for Appellants (in all C.As.).

Imtiaz Ali, Addl. Advocate-General and M.A. Qayyum Mazhar, Advocate-on-Record (absent) for Respondents.

Date of hearing: 2nd October, 2003.

2005 S C M R 97

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Sardar Muhammad Raza Khan, JJ

CHAIRMAN, STATE LIFE INSURANCE CORPORATION, KARACHI and others---Petitioners

Versus

ABDUL RASHEED SOOMRO and others---Respondents

Civil Petitions for Leave to Appeal No.3347; 3348, 3357, 3358, 3359 and 3360 of 2003, decided on 5th October, 2004.

(On appeal from the judgment/order of the Federal Service Tribunal, Islamabad, dated 31-10-2003, passed in Appeals Nos.427(K)CE of. 2001, 431(K)CE of 2001, 430(K)CE of 2001, 429(K)CE of 2001, 302(K)CE of 2001 and 428(K)CE of 2001).

Constitution of Pakistan (1973)---

----Art 212(3)---Reinstatement in service---Principle of consistency--­Applicability--- Employees opted for voluntary retirement but before any order was passed by the authorities, employees withdrew their options--­Authorities enforced the option already given by the employees and retired them---Service Tribunals, on challenging such order by employees, reinstated the employees in service---Validity---Judgment of Service Tribunal was in consonance with the law---Principle of equity, fair play and justice required that 'since employees in earlier appeals were reinstated in service by Service Tribunal,' the case of present employees being on the same footings should also be accepted---Supreme Court declined to interfere with the judgment passed by Service Tribunal---Leave to appeal was refused.

Sh. Zamir Hussain, Advocate Supreme Court and M.S. Khatta, Advocate-on-Record for Petitioners (in all petitions).

Abdul Ghafoor Mangi, Advocate Supreme Court with Raja Abdul Ghafoor, Advocate-on-Record (absent) for Respondents (in all petitions).

Date of hearing: 5th October, 2004.

2005 S C M R 100

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J. Abdul Hameed Dogar and Faqir Muhammad Khokhar, JJ

IKRAM BARI and 524 others---Petitioners

Versus

NATIONAL BANK OF PAKISTAN through President and another---Respondents

Civil Petitions Nos. 1772, 1789 to 1795, 1839 to 1843, 1884 to 1896, 1901, 1909 to 1942, 1944 to 1946, 1991 to 1998, 2002, 2021 to 2080, 2084 to 2095, 2099 to 2121, 2129, 2130, 2139, 2141, 2142, 2147 to 2164, 2167 to 2174, 2177, 2179, 2180, 2182 to 2185, 2188 to 2432, 2449 to 2520; 2530 and 2606 of 2003, decided on 21st September, 2004.

(On appeal from the judgment, dated 17-7-2003 of the Federal Service Tribunal, passed in Appeals Nos. 98(Q)CW/2002 to 122(Q)CW/2002, 479 to 513, 520 to 560, 837, 838, 861 to 873, 1003 to 1006, 1013 to 1015, 1020 to 1029, 1030, 1031, 1032, 1038, 1041, 1067 to 1074 to 1079, 1083 to 1089, 1090 to 1093, 1094 to 1099, 1100 to 1106, 1107 to 1126, 1127 to 1133, 1134, 1136, 1140 to 1151, 1163 to 1169, 1184, 1185, 1194 to 1196, 1200 to 1204, 1209 to 1232, 1240 to 1262, 1270, 1271, 131?, 1319, 1416 to 1422, 1424 to 1427, 1435, 1437 to 1453, 1462 to 1464 to 1466-R/CW/2002)

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

----Ss. 2-A & 4---Termination from service---Godown staff/daily wages employees--- Status---Employees had been working with bank for the past many years on daily wages in various categories---Bank terminated their services on the ground that although the employees were appointed by the bank yet their salaries were being paid by the borrowers," loanees---Validity---As the employees were not selected or recommended by the borrowers/loanees, therefore, on no principle of law and equity, they could be treated to be the employees of the borrowers/loanees---It the salaries of temporary employees/godown staff or the daily wages employees were debited to the borrowers account that would make no difference since for all practical purposes and legal consequences the employees were placed under the administrative control of the bank.

(b) Islamic jurisprudence---

----Islamic State---Obligations---Islamic Welfare State is under obligation to establish a society, which is free from exploitation wherein social arid economic justice is guaranteed to its citizens.

(c) Industrial dispute---

----Employer and employees---Bargaining strength---Termination from service ---Godown staff/daily wages employees---Employees had been working with bank for the past many years on daily wages in various categories---Bank had terminated their services on the ground that although the employees were appointed by the bank yet, their salaries were being paid by the borrowers/loanees---Validity---No equilibrium of bargaining strength between employer and employees existed---Manner in which the employees had been dealt with by the bank was a fraud on the statute.

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

----Arts. 2-A, 3 & 38---Public administration---Doctrine of good governance--- Applicability---Objectives Resolution, by virtue of Art.2-A of the Constitution, has been made substantive part of the Constitution which unequivocally enjoined that in State of Pakistan the principles of equality, social and economic justice as enunciated by Islam would be fully observed which would be guaranteed as fundamental rights--­Principles of policy contained in Art.38 of the Constitution also provide that the State should secure the well-being of the people by raising their standards of living and by ensuring equitable adjustment of rights between employer and employees and provide for all citizens, within the available resources of the Country, facilities for work and adequate livelihood and reduce disparity in income and earnings of individuals--­State is obliged under Art.3 of the Constitution, to ensure the elimination of all forms of exploitation and gradual fulfilment of the fundamental principle, from each according to his ability, to each according to his work.

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

----Ss. 2-A & 4---General Clauses Act (X of 1897), S.24-A--­Constitution of Pakistan (1973), Art.212(3)---Termination from service ---Godown staff/daily wages employees ---Reinstatement---Back­-benefits, grant of---Employees had been working with bank for the past many years on daily wages in various categories--Bank had terminated their services on the ground that although the employees were appointed by the bank yet their salaries were being paid by the borrowers/loanees---Validity---Supreme Court found it difficult to countenance the approach of the bank that the temporary godown staff and the daily wages employees should be continued to be governed on disgraceful terms and conditions of service for indefinite period---Bank was required under the provisions of S.24-A of General Clauses Act, 1897, to act reasonably, fairly and justly---Any employee being jobless and in fear of being shown the door, had no option but for accept and continue with the appointment on whatever conditions it was offered by the bank---Service Tribunal had rightly imposed a condition of three years length of service with not more than fifteen days break between the consecutive appointments and termination of service for regularization of service of employees---Such conditions were reasonable and were also in line with the policy decisions taken by the bank itself from time to time--­Employees had woken up from deep slumber of more than a decade to seek redress of their grievances, therefore, it would be unfair and inequitable to grant them monitory back-benefits of service from the dates of their initial appointments---Supreme Court directed the bank to issue appointment letters to the employees and previous service rendered by them with the bank would be counted towards retirement/pensionary benefits---Appeal was allowed.

Managing Director, Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas and others PLD 2003 SCMR 724 = 2003 PLC (C.S.) 796; Engineer Naraindas and another v. Federation of Pakistan and others 2002 SCMR 82; The Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh and others PLD 2001 SC 176; Managing Director, Sui Southern Gas Company Ltd, Karachi v. Ghulam Abbas and others 2003 PLC (C.S.) 796; Federation of Pakistan v. Raees Khan 1993 SCMR 609; Abdul Majeed Sheikh v. Mushafee Ahmed PLD.1965 SC 208; Hameed Akhter Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185; Sh. Muhammad Aslam v. Majeed Nizami, Editor-in-Chief "The Nation" and "Nawa-i­-Waqt" and others PLD 2002 SC 514; Syed Imran Raza Zaidi v. Superintending Engineer, Public Health Engineering Circle, Gujranwala, v. Government of the Punjab through Secretary, General Administration and Information Department, Punjab Secretariat, Lahore and 2 others 1996 SCM.R 645; Muhammad Shafi v. Mushtaq Ahmed 1996 SCMR 856; Ali Muhammad v. Hussain Bakhsh PLD 1976 SC 37; Syed Ali Abbas and others v. Bishan Singh and others PLD 1967 SC 294; Ch. Altaf Hussain v. Chief Settlement Commissioner PLD 1965 SC 68; Malik Khawaja Muhammad and 24 .others v. Marduman Babar Kahol and 29 others 1987 SCMR 1543; Mst. Rehmat Bibi and others v. Punnu Khan and others 1986 SCMR 962; Allahdino v. Fakir Muhammad and another PLD 1969 SC 582; Federal Bank for Cooperatives v. Ehsan Muhammad 2004 PLC (C.S.) 25 (SC); Federation of Pakistan and another v. Hashim Shah Qureshi 1987 SCMR 156; Muhammad Naseem Ahmad and 18 others v. Miss Azra Feroz Bakht and 58 others PLD 1968 SC 37; Government of Pakistan through Establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi PLD 2003 SC 110 = 2003 PLC (C.S.) 212; Muhammad Sohail and 2 others v. Government of N.-W.F.P. and others 1996 SCMR 218; M.A. Rashid Rana v. Secretary Home, Government of Punjab and 18 others 1996 SCMR 1145; Pir Bakhsh v. The Chairman, Allotment Committee and others PLD 1987 SC 145; Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others PLD 2002 SC 101; WAPDA and others v. Khanimullah and others 2000 SCMR 879; Black's Law Dictionary Revised 4th Edn. (1968) p.1518; State Bank of India v. Shri N. Sundara Money AIR 1976 SC 1111; Marubeni Power Development Project, Karachi v. Gulzar Hussain Shah 1998 PLC 249; General Tyre & Rubber Company of Pakistan Limited, Karachi v. Sindh Labour Appellate Tribunal, Karachi and another 1992 PLC (Labour) 1028 (D.B.) Karachi; Nasir Jamal and 23 others v. Pak Suzuki Motor Company Limited and 3 others 2000 PLC (Labour) 52 (Karachi); Muhammad Yaqoob v. The Punjab Labour Court No. 1 and 5 others 1990 SCMR 1539; Sui Northern Gas Pipelines Ltd. v. Abdul Sattar and 2 others 1996 PLC 162 (Lah.); Syed Aftab Ahmed and others K.E.S.C. and others 1999 SCMR 197; Abdul Sattar and another v. Sui Northern Gas Pipelines Limited and others 2001 SCMR 1935 Muhammad Riaz Khan v. Government of N.-W.F.P. and another PLD 1997 SC 397; S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCMR 367, Zafar Iqbal Khan v. Pakistan Agricultural Research Council, Islamabad and others 2003 SCMR 1471; Muhammad Mumtaz and others v. Muhammad Sher 1988 SCMR 1389; Sheikh Muhammad Saleem v. Faiz Ahmad PLD 2003 SC 628; Hakim Muhammad Buta and another v. Habib Ahmad and 'others PLD. 1985 SC 153; Mir Muhammad Khan v. Secretary to the Government and others 1997 SCMR 1477; Pakistan v. Public at Large PLD 1987 SC 304 and Habibullah v. Government of the Punjab and 5 others PLD 1980 Lah. 337 ref.

(f) Judgment---

---Judgment in rem and judgment in personam---Case-law cited.

Federation of Pakistan through Secretary, Ministry of Education, Government of Pakistan, Islamabad and others v. Qamar Hussain Bhatti 2004 PLC (C.S.) 34 (S.C.), Muhammad Sohail and 2 others v. Government of N.-W.F.P and others 1996 SCMR 218, M/A Rashid Rana v. Secretary Home, Government of Punjab 1996 SCMR 1145, Pir Bakhsh (supra) PLD 1983 SC 684, Farokh Homi Irani v. Nargis Farokh Irani PLD 1963 Kar. 567, Mst. Muni v. Habib Khan PLD 1956 Lah. 403 and State of Bihar and others v. Sri Radha Krishna Singh and others AIR 1983 SC 684 rel.

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

----Ss. 2-A & 4---Constitution of Pakistan (1973), Art.212(3)--­Termination from service---Time-barred appeal---Plea of void order--­Limitation---Principle---Service Tribunal dismissed the appeal being barred by limitation---Plea raised by the employees was that the order of termination was a void-order against which there was no period of limitation---Validity---No rule of universal application was that in all cases of void orders, question of limitation was to be treated a mere technicality and a litigant was entitled to' invoke the jurisdiction of a Court or Tribunal of competent jurisdiction at his sweet will at any time without showing any exceptional circumstances for the delay---Supreme Court declined to interfere with the order passed by Service Tribunal-­Leave to appeal was refused.

Fazal Elahi Siddiqui v. Pakistan through Secretary, Establishment Division and two others PLD 1990 SC 692 and Abdul Wahid v. Chairman, Central Board of Revenue, Islamabad and another 1998 SCMR 882 rel.

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

----Ss. 2-A & 4---Constitution of Pakistan (1973), Art.212(3)--­Termination from service ---Godown staff/daily wages employees--­Proceedings before National Industrial Relations Commission-Employees had been working with bank for the past many years on daily wages in various categories- --Bank had terminated their services on the ground that although the employees were appointed by the bank yet their salaries were being paid by the borrowers/loanees---Employees had been pursuing their cases before National Industrial Relations Commission and their appeals were dismissed by Service Tribunal being barred by limitation---Validity---Controversy as to the application of S.2-A of Service Tribunals Act, 1973, remained in a state of fluidity for a considerable period of time---Service Tribunal itself had declined to exercise its jurisdiction in, old cases and the matter was resolved by Supreme Court---As the termination orders were passed on 2-7-2002, 30-4-2002 and 29-2-2002 and appeals before Service Tribunal were filed on 6-7-2002, 8-6-2002 and 29-4-2002 after filing departmental appeals, the Service Tribunal was not justified to refuse to condone the delay and to dismiss the appeals of the employees as time-barred---Judgment of the Service Tribunal was set aside and the petition for leave to appeal was converted into appeal---Supreme Court reinstated the employees in service with back-benefits from the date of their termination---Appeal was allowed.

Syed Aftab Ahmed v. K.E.S.C. 1999 SCMR 197; Muhammad Afzal v. Karachi Electric Supply Corporation and 2 others 1999 SCMR 92; Muhammad Yaqub v. Pakistan Petroleum Ltd. and another 2000 SCMR 830 and Imtiaz Butt and others v. Chairman, Pakistan International Airlines Corporation, Karachi 2000 SCMR 944 rel.

Ch. Ghulam Qadir, Advocate Supreme Court for Petitioners (in C.Ps. Nos. 1772, 1789 to 1795, 1839, 1840 to 1843, 1884 to 1896, 1901 and 1910 to 1912/2003).

Hafiz Tariq Nasim, Advocate Supreme Court for Petitioners (in C.Ps. Nos.1916 to 1942, 1944 to 1946, 1991-1998, 2074, 2077, 2080, 2167 and 2171 to 2174/2003).

Syed Iftihkar Hussain Gillani, Senior Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Petitioners (in C.Ps. Nos.2002, 2084 to 2095, 2099 to 2121, 2130, 2449 to 2451, 2458 to 2460, 2462 to 2481, 2483, 2485 to 2496, 2499 to 2506, 2530 and 2606 of 2003).

Ehsan-ul-Haq, Ch. Advocate Supreme Court for Petitioners (in C.Ps. Nos.2021 to 2073, 2075, 2076, 2078, 2179 and 2180 of 2003).

Muhammad Akram Sh, Senior Advocate Supreme Court for Petitioners (in C.Ps. Nos.2129, 2139, 2141, 2142, 2147 to 2163 and 2177 of 2003).

Ch. Akhtar Ali, Advocate-on-Record for Petitioners (in C.P. No.2168 of 2003).

Kh. Muhammad Farooq, Senior Advocate Supreme Court with Rai Ahmed Nawaz Kharal, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondents (in C.Ps. Nos.2188 to 2425 of 2003 and in all other petitions).

In person (in C.Ps. 2182, 2183 to 2185 and 2330/2003).

Date of hearing: 9th March, 2004.

2005 S C M R 119

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

AHMED and 25 others---Applicants

Versus

GHAMA and 5 others---Respondents

Civil Miscellaneous Application No.786 of 2004 in Civil Petition No.71 of 2002, decided on 11th August, 2004.

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

----Art. 185(3)---Petition dismissed in default---Restoration---Ailment of Advocate on Record---Scope---Application for restoration was barred by 108 days and no plausible justification could be furnished on the basis whereof such an inordinate delay could be condoned---Serious ailment of Advocate on Record did not constitute a valid ground for condonation of such inordinate delay---Respondents could not be deprived of their valuable and legal rights which they had acquired due to laches and negligence---Petitioners failed to pursue their case vigilantly vigorously and woke up from the deep slumber after 108 days and thus Supreme Court refused to ignore such negligence without sufficient justification--­Application was dismissed.

Rehmatullah and others v. Was Khan and. others 1968 SCMR 975, Abdul Hamid v. Chief Settlement Commissioner and others.,1968 SCMR 120, Rahim Bux v. Settlement Authorities and others 1968 SCMR 78 and Ahmad Din v. Mst. Rasul Bibi 1968 SCMR 843 rel.

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

----Art. 185(3)---Constitutional petition---Laches---Effect---Existence of laches is sufficient for dismissal of petition in limine.

Muhammad Sadiq and others v. The Commissioner, Rawalpindi Division and others 1973 SCMR 422 and Shahbaz Khan Mohammad v. Islamic Republic of Pakistan and another 1975 SCMR 4 rel.

Sardar Liaqat Ali, Advocate Supreme Court for Applicants.

Ch. Muhammad Akram, Advocate-on-Record for Respondents.

Date of hearing: 11th August, 2004.

2005 S C M R 121

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Javed Iqbal and Falak Sher, JJ

GOVERNMENT OF PUNJAB and others---Petitioners

Versus

Messrs EMPIRE CINEMA and others---Respondents

Civil Petitions Nos. 2934-L and 2935-L of 2003 along with Civil Petition No. 1120-L to 1130-L of 2004, decided on 22nd July, 2004.

(On appeal from the judgments/orders dated 7-10-2003 and 23-12-2003 passed by Lahore High Court Lahore in I.C.As. Nos.557, 781 of 2002 and W.Ps. Nos.5954, 6050-6052, 6091, 6092, 8172, 8173, 8515, 8191, 16074 of 2003).

(a) Law Reforms Ordinance (XII of 1972)---

----S 3---Constitution of Pakistan (1973), Art. 185(3)---Petition for leave to appeal---Maintainability---Intra-Court Appeal dismissed by High Court being barred by limitation---Condonation of delay---Contention of authorities was that the delay in filing of Intra-Court Appeals was fully explained by submitting application for condonation of delay, if any, in view of the fact that pure question of law of public importance was involved but the ground put forward by the authorities had not been examined/considered and attended to, in the light of precedent law, by High Court---Contention of the respondents was that the present petition was .not maintainable because the Intro-Court Appeals filed by the authorities before-High Court were dismissed being barred by time--­Leave to appeal was granted by Supreme Court to examine the respective contentions of the parties.

(b) West Pakistan Entertainment Duty Act (X of 1958)---

----S. 3(1), proviso---Notification No.S.O. (Tax)(E&T) 1-5/89(P-II) dated 18.7.2001-- Constitution of Pakistan (1973), Art.185(3)---Fixed advance entertainment duty--- Demand of arrears of duty---Closure of cinema---Cinema owners disputed demand of arrears of fixed entertainment duty pertaining to the period during which their cinemas remained closed---High Court in exercise of Constitutional jurisdiction set aside the demand raised by the authorities---Intro-Court Appeal filed against the judgment of Single Judge was dismissed being time-barred--­Contention of the authorities was that the cinema owners were bound to pay the duty as they had been exempted to pay entertainment duty as per the rate prescribed in the Notification No.S.O. (Tax)(E&T) 1-5/89(P-II), dated 18.7.2001 by spelling out the categories of cinemas, as such the owners were estopped from paying entertainment duty during the period when no entertainment was provided and the cinemas remained closed--­Authorities also contended that cinema owners were estopped from challenging the recovery/levy of additional tax when with their consent they were held liable to pay penalty @ 10% per day till the expiry of prescribed period---Authorities further contended that as some of the cinema owners had not paid the arrears of entertainment duty, therefore, the authorities had a lawful authority to recover the same vide .Notification No.S.O.(Tax)(E&T) 1-5/89(P-II), dated 16.4.2001, but High Court without any justification struck down such demand of the authorities---Further contention by the authorities was that recovery of fixed entertainment duty per day vide Notification No.S.O.(Tax)(E&T)1­5/89(P-II), dated 16.4.2001, was in accordance with the provisions of proviso to S.3(1) of West Pakistan Entertainment Duty Act, 1958, therefore, High Court had erred in law in declaring the recovery of the duty illegal, during the period when no entertainment was provided by the cinemas---Contention of the cinema owners was that the present petitions were not maintainable as against the judgment in Constitutional petition, Intro-Court Appeals were competent in view of S.3(2) of Law Reforms Ordinance, 1972, as it had been held by Supreme Court in case titled Mst. Karim Bibi and others vs. Hussain Bukhsh and another, reported as PLD 1984 S.C. 344---Cinema owners also contended that imposition/ recovery of additional entertainment duty by means of penalty was contrary to the provisions of charging S.3(1) of West Pakistan Entertainment Duty Act, 1958---Further contention of the cinema owners was that the recovery of fixed entertainment duty per day was not based on equity and had been imposed without conducting inquiry and taking into consideration that due to introduction of modern electronic media and communication, the film industry had lost its viability, therefore, its owners were not in a position to pay the fixed advance entertainment duty---Leave to appeal was granted by Supreme Court to examine the respective contentions of the parties.

Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344 ref.

Muhammad Riaz Lone, Advocate Supreme Court with Rao M. Yousaf Khan, Advocate-on-Record (Absent) for Petitioners.

Dr. Sohail Akhtar, Advocate Supreme Court with M.A. Qureshi, Advocate-on-Record for Respondents.

Date of hearing: 20th July, 2004.

2005 S C M R 126

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

S.A. JAMEEL---Petitioner

Versus

SECRETARY TO THE GOVERNMENT OF THE PUNJAB, COOPERATIVE DEPARTMENT and others---Respondents

C.P.L.As. Nos.479-L and 480-L of 2002, decided on 31st August, 2004.

(On appeal from the judgment of Lahore High Court, Lahore dated 27-11-2001 passed in W.Ps. Nos. 2152 and 9692 of 1995).

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

----Art. 199---Limitation Act (IX of 1908), S.5---Constitutional petition---Laches and limitation---Distinction---"Delay in filing of legal proceedings, within the period specified under the provisions of Limitation Act, 1908", and "undue time consumed by a party in filing Constitutional petition, for which no statutory period is prescribed under the law"---Distinction---In the case of limitation, delay of each day is to be explained by furnishing sufficient cause for enlargement of time and condonation of delay within the contemplation of S.5 of Limitation Act, 1908, whereas in filing of Constitutional petition lapse of time or question of laches is to be examined on equitable principles for the reason that the exercise of Constitutional jurisdiction is always discretionary with the Court and relief so granted is always in the nature of equitable relief---In case High Court comes to a conclusion that equity leans in favour of petitioner, the Court must exercise, discretion in favour of such party---If High Court finds that the party invoking Constitutional jurisdiction is guilty of contumacious lethargy, inaction; laxity or gross negligence in the prosecution of a cause for enforcement of right, it would be justified in non-suiting such person on the premise of laches--­Issue of delay or laches is to be considered with reference to the facts of each case and no hard and fast rule can be laid down in this behalf.

Ardeshir Cowasjee v. Karachi Building Control Authority (K.M.C.) Karachi 1999 SCMR 2883; Pakistan Post Office v. Settlement Commissioner 1987 SCMR 1119; Masooda Begum v. Government of Punjab PLD 2003 SC 90 and Ardeshir Cowasjee, Karachi v. Messrs Multiline Associates, Karachi PLD 1993 Kar. 237 rel.

(b) Administration of justice---

----Quasi-judicial forums---Provisions of Civil Procedure Code, 1908--­Applicability---Procedural law prescribed under Civil Procedure Code, 1908, is not strictly attracted to the proceedings before quasi-judicial forums---Civil Procedure Code (V of 1908), Preamble.

(c) Cooperative Societies Act (VII of 1925)---

----Ss. 22-A, 50-A & 64---West Pakistan Land Revenue Act (XVII of 1967), S.81---Constitution of Pakistan (1973), Art.185(3)---Cooperative society, dues of---Recovery---Non-summoning of record---Petitioner was office-bearer of cooperative society and proceedings against him were initiated under Cooperative Societies Act, 1925, for recovery of funds of the society allegedly embezzled by him---Authorities being dissatisfied with the reply of the petitioner issued notice under S.81 of West Pakistan Land Revenue Act, 1967---Plea raised by the petitioner was that the authorities had ascertained the liability against the petitioner without summoning of record---Validity---It was incumbent upon the authorities to take steps for procuring the relevant record, without reference to which the petitioner was wrongly declared to be defaulter---Such aspect of the matter required consideration as the relevant record was not available before the forums who adjudicated the liability of the petitioner for payment of huge sums of money---Supreme Court converted the petition for leave to appeal into appeal, order passed by the authorities as set aside and the matter was remanded to the cooperative authorities for decision afresh---Appeal was allowed.

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

A.H. Masood, Advocate Supreme Court with Muhammad Iqbal, A.R. Cooperative Society for Respondents Nos. 1 to 3.

Sheikh Abdul Aziz, Advocate Supreme Court with A.H. Masood, Advocate-on-Record for Respondent No.4.

Date of hearing: 31st August, 2004.

2005 S C M R 132

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Falak Sher, JJ

COLLECTOR OF SALES TAX and others---Petitioners

Versus

Messrs SHAHBAZ & CO. and others---Respondents

Civil Petitions Nos. 1250 to 1274-L of 2004, decided on 26th July, 2004.

(On appeal from the judgment, dated 27-10-2003 passed by the Lahore High Court, Lahore in S.T.As. NOS.281 to 307 of 2002).

Sales Tax Act (VII of 1990)---

----S. 58---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to consider; whether the respondent­ company had passed on sales tax to the persons who were the recipient of the goods; whether payment of sales tax under S.58 of Sales Tax Act, 1990, was to be made in the same manner as was required to be paid in case of supply to a registered person as such no refund could be claimed; and whether the respondent-company in fact passed on the sales tax to the recipient and did not pay the same from its own pocket.

Civil Petition No.1068-L of 2002; Noon Sugar Mills Ltd. v. Market Committee PLD 1989 SC 449; Muhammad Hussain and others v. Muhammad and others 2000 SCMR 367 and Ali Muhammad through L.Rs. v. Chief Settlement Commissioner 2001 SCMR 1822 ref.

Izhar-ul-Haque, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 26th July, 2004.

2005 S C M R 134

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J. and Javed Iqbal, J

FATEH KHAN and others---Petitioners

Versus

SULTAN KHAN---Respondent

Civil Petition No.2471 of 2002, decided on 20th September, 2004.

(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 28-10-2002 passed in Civil Revision No. 190 of 1995).

Punjab Pre-emption Ordinance (XVIII of 1990)---

----S. 36(2)---Constitution of Pakistan (1973), Art. 185(3)---Pre-emption suit--- Limitation---Period termed as vacuum'---Applicability---Suit and appeal of pre-emptor were dismissed by Trial Court and Appellate Court respectively on the ground that the suit was barred by limitation---High Court in exercise of revisional jurisdiction remanded the matter to Trial Court for decision on merits---Plea raised by the vendee was that there was complete vacuum with effect from 1-8-1986 to 28-3-1990 as during that period no enactment on pre-emption was in existence, therefore, period of limitation would be four months---Validity---Period termed asvacuum' had been saved and covered by the provisions as enumerated in S.36(2) of Punjab Pre-emption Ordinance, 1990---Suit was restored under S.36(2) of Punjab Pre-emption Ordinance, 1990, wherein limitation period was prescribed as 60 days---Trial Court could not have dismissed the suit as barred by limitation---No infirmity, perversity or illegality could be pointed out by vendee warranting interference by Supreme Court as the judgment passed by High Court was well-­reasoned---Leave to appeal was refused.

Muhammad Akram Ch. Advocate Supreme Court for Petitioners.

Abdul Haq, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Respondent.

Date of hearing: 20th September, 2004.

2005 S C M R 135

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza, Sardar Muhammad Raza Khan and Falak Sher, JJ

Mst. KULSOOM BIBI and another---Appellants

Versus

MUHAMMAD ARIF and others-- -Respondents

Civil Appeal No.6 of 2004, decided on 7th September, 2004.

(On appeal from the judgment, dated 24-12-2003 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Civil Revision No.457 of 2003).

(a) Fraud---

---- Allegation of fraud---Use of words conspiracy',fakeness' and 'forgery'--- Plaintiff used such words in plaint assailing disputed registered gift deed---Validity---High Court had fallen into error by holding that fraud qua the deed was not alleged in the plaint---Supreme Court believed that no better words could tie used to say that the deed was fraudulent for, to procure a deed with conspiracy and to execute a fake document by forgery was nothing but fraud.

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

----Art.79---Document---Proof---Requirement of marginal witnesses--­Purpose---Marginal witnesses of a document are produced not merely to identify the signatures of executant but are examined to also prove that the executant had put the signatures within their view.

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

----Ss. 96, 100 & 115---Revisional jurisdiction---Object and scope--­Power to be exercised under S.115 C.P.C. should not be considered analogous to the powers exercised in appeal---Once the law provides no further right of appeal, the manifest intention is that the order of lower forum should attain finality---While exercising revisional jurisdiction, High Court should satisfy itself upon three matters; firstly, whether the subordinate Court had the jurisdiction vested in it; secondly, whether the case is one in which the Court ought to exercise the jurisdiction and thirdly, that whether the lower Court acted illegally or with material irregularity resulting into miscarriage of justice.

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

----Arts. 72, 117 & 120---Specific Relief Act (I of 1877), S.42--- Gift deed---Onus to prove---Plaintiff challenged the disputed gift deed on the grounds of conspiracy, fakeness and forgery amounting to fraud---Trial Court and Appellate Court decreed the suit and dismissed the appeal respectively---High Court in exercise of revisional jurisdiction set aside the concurrent judgments and decrees passed by both the Courts below--­Validity---Beneficiary under the document was bound not only to prove the execution of document but also to prove the actual factum of gift by falling back on three ingredients of proposal, acceptance and delivery of possession---Three ingredients had to be proved independent of the document---Judgment and decree passed by High Court was set aside and that of Appellate Court was restored---Appeal was allowed.

N.S. Venkatagiri Ayyangar AIR 1949 PC 156 and Ghulam Haider's case 2003 SCMR 1829 ref.

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

---- Art. 117 & 120---Specific Relief Act (I of 1877), S.42--- Gift depriving legal heirs---Onus to prove---Principle--- Validity---When through a gift, deprivation of legal heirs is involved, either intended or unintended, the burden to prove original transaction of gift with all its ingredients strongly rests upon the beneficiaries of such gift.

Muhammad Ashraf's case 1989 SCMR 1390 and Barkat Ali's case 2002 SCMR 1938 rel.

(f) Islamic Law---

----Gift---Property capable of division---Principle---Gift of property capable of division, to two or more persons without specific shares or without dividing it at the time of gift is invalid.

Para 161 of Principles of Mahomedan Law by D.F. Mulla rel.

(g) Islamic Law---

---- Gift---Marz-ul-Maut--- Principle---Gift made by Muslim during Marz­ul-Maut cannot take effect beyond 1/3rd of his estate (after payment of funeral expenses and debts) unless the heirs give their consent after the death of donor, to the excess taking effect.

Gulzarin Kiani, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Appellants.

Abdur Rashid Awan, Advocate Supreme Court with Imtiaz Muhammad Khan. Advocate-on-Record for Respondents.

Dates of hearing: 17th and 18th May, 2004.

2005 S C M R 142

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Sardar Muhammad Raza Khan, JJ

A. RAZZAK ADAMJEE and another---Appellants

Versus

Messrs DATARI CONSTRUCTION COMPANY (PVT.) LIMITED and another---Respondents

Civil Appeal No. 556 of 1993; decided on 9th September, 2004.

(On appeal from the judgment, dated 31-12-1992 passed by the High Court of Sindh, Karachi in High Court Appeals Nos.55 and 58 of 1991).

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

----S. 91---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to consider; whether in a case of public nuisance, for which permission under S.91 C.P.C. had been obtained, absolute nuisance had to be established and the suit had to be in representative capacity; whether the decision in case titled Ardeshir Cowasjee, Karachi and 4 others v. Messrs Multiline Associates, Karachi and 2 others, reported as PLD 1993 Kar. 237 was not in conflict with the judgment under appeal, and whether departure from the Zoning Regulation was justified in the present case.

Ardeshir Cowasjee, Karachi and 4 others v. Messrs Multiline Associates, Karachi and 2 others PLD 1993 Kar. 237 ref.

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

----S. 268---Nuisance---"Public" and "private"---Distinction---Word or' used in S.268, P.P.C.---Effect---In public nuisance, the act done by a defendant is supposed to be primarily illegal whereas in a private nuisance, even a legal act can cause injury, danger or annoyance to another person---Opening sentence of S.268, P.P.C. presupposes that a person can be held guilty of a public nuisance only when any act or omission done by such person is illegal---Doing of any act or being guilty of an illegal omission are joined in S.268, P.P.C. by conjunctionor' which preconditions the act as well as omission with illegality.

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

----S. 268---Public nuisance---Offence---Preconditions---In absence of any illegal act attributable to a person, the provisions of S.268, P.P.C. are not attracted.

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

----Art. 52-A [as inserted by Sindh (Amendment of Laws) Ordinance (XVII of 1974)]---Amenity plots---Specification---Amenity plots as specified in Art.52-A of Karachi Development Authority Order 1958, are those which are reserved for roads, hospitals, schools, colleges, libraries, play grounds, gardens, parks, community centers, mosques, grave yards or such other purposes.

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

----S. 54---Civil Procedure Code (V of 1908), S.91---Public nuisance--­Permanent injunction, grant of---Concurrent findings of fact by two Benches of High Court---Apprehension of public nuisance---Plaintiffs were aggrieved of high-rise building being constructed by defendant in the vicinity of the residence of plaintiffs---Written statement of defendant and entire evidence on record established that the defendant neither applied for commercialization of the plot, whereon the disputed building was being raised, nor any such permission was granted to defendant by the Authorities---Defendant was constructing residential flats on the plot and the counsel for defendant had given an undertaking that defendant would 'not even apply for commercialization of the plot---High Court in exercise of original civil jurisdiction partly dismissed the suit while the Division Bench of High Court in exercise of appellate jurisdiction dismissed the suit in toto---Validity---Trial Court as well as Appellate Court had concurrently held that the factum of nuisance was not proved---Only thing proved on record was a mere apprehension of two plaintiffs and not of public at large that the construction of high rise building in dispute would result into host of problems amounting to public nuisance---Such apprehension was not only subjective but also abstract---Both the Courts had concurrently held that no public nuisance either actual or specific was caused to the plaintiffs---Supreme Court should not interfere with such concurrent findings of fact by two Courts below---Supreme Court, after going through the entire evidence of the parties, believed that the concurrent findings were in accord with the evidence on record and no illegality in the act of defendant was proved and no factual consequences of any such act had been brought on record---Plaintiffs failed to prove physical existence of nuisance as well as the apprehension and both the Courts below had arrived at correct conclusion which could not be interfered with---Appeal was dismissed.

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

----S. 91---Public nuisances---Permission of Advocate-General---Object and scope---Presumption---Advocate-General has right under S.91 C.P.C. to file a suit either himself or by giving consent in writing to two or more persons in whom the right to sue is vested---In either of the cases, no presumption of any sanctity is either attached to the Advocate­-General or is at all legally inferable from the words of S.91 C.P.C.--­Intention of legislature is that where the apprehension of public nuisance involving the interest of a large number of people or a community as such is involved, the Principal Law Officer of the Government be also given a right to sue either on behalf or instead of such person, no more and no less---Any such suit is always liable to be proved through production of evidence like any other suit of the plaintiff---No special sanctity can be attached to the consent of Advocate-­General.

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

----S. 91---Public nuisance---Signing of plaint by Advocate-General--­Plea raised by the plaintiff was that the Advocate-General was plaintiff in the case---Validity---If the Advocate-General chose to be a plaintiff, neither he appeared as a witness nor examined or cross-examined any relevant witness which was normally done by a plaintiff and which specifically ought to have been done by Advocate-General claiming to be a representative of public at large---Such omissions proved that the Advocate-General had signed the plaint in routine without proper application of mind.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S.91---Public nuisance---Proof---Existence of nuisance occurring or apprehended is pure question of fact which in cases of permanent injunction or damages, is bound to be proved through evidence.

Barrister Naeem-ur-Rehman, Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Appellants.

Fakhr-ud-Din G. Ibrahim, Senior Advocate Supreme Court, Abdul Qadir Khan, Advocate Supreme Court and A. Aziz Khan, Advocate-on-Record (absent) for Respondent No.1.

Nemo for Respondent No.2.

Dates of hearing: 21st, 22nd, 27th and 28th April, 2004.

2005 S C M R 152

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Sardar Muhammad Raza Khan, JJ

ANWAR AHMAD---Appellant

Versus

Mst. NAFIS BANO through Legal Heirs---Respondents

Civil Appeal No. 1599 of 1995, decided on 8th September, 2004.

(On appeal against the judgment, dated 10-10-1993 passed by High Court of Sindh, Karachi in H.C.A. 19 of 1985).

Per Iftikhar Muhammad Chaudhry, J.-----

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

----O. XIII, R. 2---Documentary evidence---Non-filing of documents along with plaint---Effect---Such non-filing has never been considered fatal in view of provisions of O.XIII, R.2 C.P.C. which empowers the Court to receive documentary evidence during the trial.

(b) Evidence---

---- Documentary evidence---Objection not raised at the time of recording of evidence---Effect---When no objection was raised on the documents and the same were allowed to be brought on record by the Court, on objection at a subsequent stage, such documentary evidence could not be discarded.

Mangibai Gulab Chand and another v. Sughanchand Bhikamchand and others PLD 1948 PC 168; Dr. Ilyas Dobash v. Muhammad Iqbal PLD 1960 (W.P.) Lah. 1112; Amir Muhammad Hussain Shah v. Aswal Hussain Shah PLD 1966 (W.P.) Pesh. 113; Umar Hayat v. Naik Alam PLD 1977 AJ&K 78; Sheikhupura Central Cooperative Batik Ltd. v. Tawakal Ullah PLD 1977 Lah. 763; Muhammad Hussain v. Ghulam Ali PLD 1977 Kar. 285; Gulzar Hussain v. Abdul Rehman 1985 SCMR 301; National Bank of Pakistan v. Sayed Mir 1987 CLC 1103, Muhammad Aslam v. Mst. Sardar Begum alias Noior Nishan 1989 SCMR 704, Muhammad Unees v. Ghulam Hassan 1990 MLD 219 ref.

Per Iftikhar Muhammad Chaudhry, J. [Minority view]---

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

----Arts. 72 & 161---Specific Relief Act (I of 1877), S.12--- Specific performance of agreement to sell---Forged document---Proof---Recalling of witness by Court in absence of his counsel- --Concurrent findings of fact by two Benches of High Court---Plaintiff filed suit for specific performance of agreement to sell and relied upon receipts of payment of consideration money to defendant---Signatures of defendant upon the receipts were sent to Handwriting Expert for comparison who gave his report in favour of the plaintiff---High Court, in exercise of original civil jurisdiction, had found one of the receipts to be tampered with chemical action and after completion of trial and before pronouncement of judgment, the Court recorded the statement of plaintiff to ascertain the manipulation on the receipt and disbelieved the document---Suit was dismissed by the High Court and the judgment' and decree were maintained by Division Bench of High Court in exercise of appellate jurisdiction---Plea- raised by the plaintiff was that High Court could not record the statement of plaintiff in absence of his counsel ---Validity--­ High Court was seized of the matter concerning civil rights of the parties in respect of disputed property, therefore, before forming a view concerning technical matters, which essentially had caused prejudice to the plaintiff, the Court should have summoned both the sides through their counsel and then had ascertained the status of the disputed receipt in their presence after obtaining expert opinion and determining the responsibility of the person responsible for tampering / manipulating the document, if it was so, its fate should have been decided in accordance with law---Division Bench of High Court in excise of appellate jurisdiction, did not attend to such important aspect of the case and had endorsed the judgment of Single Judge without assigning any cogent reason---Supreme Court set aside the judgments passed by two Benches of High Court and remanded the case to High Court for re-examining the disputed receipt in presence of both the sides with the aid of expert evidence to ascertain its validity and then to dispose of the matter having taken into consideration oral and documentary evidence, adduced by both the parties---Appeal was allowed.

Abdul Ahad Khan v. Muhammad Yasin and others PLD 1984 SC 200 ref.

Per Rana Bhagwandas, J. [Majority view]-----

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts.72 & 161---Specific performance of agreement to sell---Receipt of payment of consideration amount---Onus to prove---Re-examination of witness---Concurrent findings of fact by two Benches of High Court--- Disputed property was owned by defendant and plaintiff was tenant therein---After filing of ejectment petition by defendant, the plaintiff filed the present suit for specific performance of agreement to sell---Receipt for payment of sale consideration had overwriting and seemed to be manipulated document--­High Court in exercise of original civil jurisdiction, disbelieved the receipt and dismissed the suit---Division Bench of High Court maintained the judgment and decree passed by the Single Judge of High Court---Plea raised by the plaintiff was that Single Judge of High Court could not re­examine the plaintiff in absence of his counsel after completion of trial--­Validity---Nothing was wrong on the part of Single Judge of High Court who noticed traces of writing with ink on the original document having been removed by chemical action and typing out the substance on the receipt leaving the signatures of the defendant intact---After noticing such discrepancy, the Judge in Chambers of High Court had called upon the plaintiff to appear before him when he was confronted with the document---Plaintiff was unable to explain the traces of writing with ink on the document, except saying that it was given to him by the vendor and he had produced the same in rent proceedings against him---Court was always competent to examine and re-examine a witness in terms of Art. 161 of Qanun-e-Shahadat, 1984, to satisfy its conscience to find out the truth or otherwise of a statement or a document---Even without calling the plaintiff to explain the discrepancy, the Court was competent to look into the document and to comment upon its true nature or otherwise, as, such power was inherent in every Court, much more the High Court---Plaintiff was at liberty to avail of services of his Advocate while appearing for further evidence and there was no restriction against legal assistance---Supreme Court did not find any exceptional circumstances to believe that in the face of ejectment proceedings, in which evidence of the parties was duly recorded, defendant (landlady) would venture to transfer her right, interest and title to the property in favour of plaintiff (tenant) without resolving controversy in ejectment proceedings---Findings of fact concurrently recorded by two Benches of High Court were founded on correct, careful and conscious application of mind and did not suffer from any legal infirmity warranting interference by Supreme Court in exercise of Constitutional jurisdiction---Such concurrent findings did not, suffer from misconception of law or perversity of reasoning or gross misreading / non-consideration of any material piece of evidence---Judges of High Court in exercise of original as well as appellate jurisdiction, on assessment of evidence, had found plaintiff not entitled to discretionary relief of specific performance, which did not warrant any interference by Supreme Court---Appeal was dismissed.

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

----Arts. 72, 117 & 120---Execution of document---Onus to prove--­Plaintiff had pleaded part payment to defendant towards sale consideration and appended copy of a receipt---Defendant expressly disputed the receipt, asserting in her written statement that the receipt was a forged and fabricated document---Effect---Incumbent upon the plaintiff to prove due execution of the document.

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

----Art. 161---Re-examining of witness---Powers of Trial Court--­Principles---Trial Court after completion of trial and before pronouncing of judgment had called the plaintiff to explain manipulation found over a receipt produced by him---Validity---Court was always competent to examine and re-examine a witness in terms of Art.161 of Qanun-e­Shahadat, 1984, to satisfy its conscience to find out the truth or otherwise of a statement or a document---Even without calling the plaintiff to explain the discrepancy, the Court was competent to look into the document and to comment upon its true nature or otherwise, as such power was inherent in every Court, much more the High Court.

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

----Arts. 72 & 78---Execution of document---Proof---Death of witness--­Secondary evidence, non-production of---Failure to raise objection at the time of producing disputed document in evidence---Plaintiff relied upon a document attested by Notary Public-- -Plaintiff could not produce Notary Public due to his being dead, neither any other witness was produced during the trial as secondary evidence---Validity---Non-production of Notary Public to prove the contents of the document was fatal to the case of plaintiff with legal consequence that the recitals of the document could not be proved in terms of Art.78 of Qanun-e-Shahadat, 1984---Mere statement of the plaintiff regarding death of witness would not exonerate the plaintiff from his legal obligation to prove the contents of a disputed document---Fact regarding death of Notary Public should have been pleaded before Trial Court and having established non-availability of the witness by reason of his death, steps should have been taken to adduce secondary evidence with leave of Trial Court---Simply because no objection was raised to the production of document would not render the document as proved.

Muhammad Yusuf v. S.M. Ayub PLD 1973 SC 160; Allah Dad v. S.M. Khan 1989 CLC 2289; President of Pakistan v. Ms. Benazir Bhutto 1992 MLD 383; Muhammad Anwar v. Muhammad Ismail 1992 MLD 860; Ghulam Nabi v. Muhammad Yusuf 1993 CLC 314; Nazir Ahmad v. Muhammad Rafique 1997 CLC 257; Nazeer Ahmad v. Abdul Hameed Khan 2001 YLR 2145; Abdul Hameed v. Muhammad Iqbal 2002 YLR 2772; Thakurdas v. Topandas AIR 1929 Sindh 217 and Ghansham Singh v. Muhammad Yacoob AIR 1933 Sindh 257 ref.

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

----S. 12---Specific performance of agreement/contract ---Relief--­Scope---Grant of specific performance is always discretionary and the Court is not always bound to decree specific performance, even in a case where the contract is proved---Such discretion, however, must be exercised judiciously and not arbitrarily.

Arif Shah v. Abdul Hakeem Qureshi PLD 1991 SC 905; Mussarat Shaukat Ali v. Safia Khatoon 1994 SCMR 2189 and Amina Bibi v. Mudassar Aziz PLD 2003 SC 430 ref.

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

----S. 100---Constitution of Pakistan (1973), Art. 185--- Second appeal--­Re-appraisal of evidence---Supreme Court, jurisdiction of ---Principles--Appeal before Supreme Court in nature of second appeal is not open to Supreme Court to re-appraise and re-evaluate the merits of evidence, which have been properly and carefully analyzed by the High Court.

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

----O. XLI, R.23---Remand of case---Object---Remand of case can only be ordered when it becomes absolutely necessary and inevitable in view of insufficient or inconclusive evidence on record.

Per Sardar Muhammad Raza Khan, J. [Majority view]-----

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

----Art. 72---Execution of document---Objection to admissibility of document---Failure to raise objection at the time of producing disputed document in evidence---Disputed document was relied upon by plaintiff---Defendant did not raise any objection to the document at the time when it was tendered in evidence before Trial Court ---Effect---Non­ raising of objection at initial stage did not militate against a party not raising objection at first instance---Such objections were material only when certain documents or material was downright inadmissible in evidence and when such document could not even be placed on record--­Non-objection at the first stage merely justified the physical placement of a document on record but did not at all tantamount to admitting the contents, truth or genuineness of such document which remained always to be proved independent of such admission.

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

----Art. 161---Re-examining of witness---Powers of Trial Court---Scope-­-Court has unfettered and absolute power to call or recall a witness at any stage in order to get the things explained or get the doubt removed.

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

----S. 12---Specific performance of agreement/contract---Relief--­Scope---Relief of specific performance of contract is purely a discretionary relief---Such relief is denied at times even if the agreement is proved, when in the circumstances, the Court is of the view that the grant of such relief would not meet the ends of justice.

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

----Art. 61---Handwriting Expert---Opinion---Scope---Evidence of Handwriting Expert is always considered to be a weak type of evidence---In presence of overwhelming evidence, oral, documentary as well as circumstantial, it would be futile to examine the Expert---Even if examined, it would not outweigh the available evidence.

Syed Sharif-ud-Din Pirzada, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellant.

Gulzarin Kiani, Advocate Supreme Court, Samad Mehmood, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondents.

Dates of hearing: 13th to 15th April, 2004.

2005 S C M R 177

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Faqir Muhammad Khokhar, JJ

STATE LIFE INSURANCE CORPORATION OF PAKISTAN through its Chairman and another---Petitioners

Versus

DIRECTOR-GENERAL, MILITARY LANDS AND CANTONMENTS, RAWALPINDI and 4 others---Respondents

Civil Petition No.311-P of 2000, decided on 24th September, 2004.

(On appeal from the judgment dated 31-5-2000 passed by the Peshawar High Court, Circuit Bench D.I. Khan in Writ Petition No.45 of 1999 regarding the remission of composition amount).

(a) Cantonments Act (II of 1924)---

----S.185 (1) & (2)---Use of words may' andshall'---Effect---Word may' used in S.185 (1) of Cantonments Act, 1924, does not render action thereunder to be mandatory---Such being a matter of discretion, all functionaries of the State are required to act judiciously as well as with reasonable care and prudence---Repeated use of wordmay' is a deliberate use when juxtaposed to the repeated use of word `shall' in the immediately following S.185 (2) of Cantonments Act, 1924---Different terminologies used in one and the same section are resorted to by the Legislature keeping in view the gravity of different situations involved--­Wisdom behind such distinction is that the action proposed is related to various conditions laid down under S.184 of Cantonments Act, 1924, which differ from each other in gravity in implication and in representation.

(b) Cantonments Act (II of 1924)----

----Ss. 179, 180, 181, 184 & 185(1) first proviso---Illegal construction--­Effect---Illegality referred to in S.184 (a) and (b) of Cantonments Act, 1924, is considerably serious because it refers to a construction which through and through is in violation of Ss. 179' 180 and 181 of Cantonments Act, 1924---Such construction is either to be demolished, wholly or partly, as the case may be, or compounded within the meaning of first proviso to S.185 (1) of Cantonments Act, 1924.

(c) Cantonments Act (II of 1924)-----

----Ss. 52, 179, 180, 181, 184 & 185---Delay in construction---Compounding of illegality---Principle---Respondent-Corporation could not complete its building within the specified period despite getting extension in building period---Cantonment Board imposed a fine in the sum of Rs.10,00,000 to compound the illegality---Justification Corporation did not resort to any unauthorized construction either wholly or in part---Bye-laws affecting the rights of vicinity or neighbourhood were even not violated by the Corporation---Composition imposed by the Board was assailed by the Corporation before High Court in Constitutional petition---High Court partially accepted the petition to the effect that the notice of stoppage of construction was declared to be null and void but composition on payment of Rs.10,00,000 was maintained--­Validity---Action taken by Cantonment Board was harsh as well as unwarranted---As the construction in dispute was neither unauthorized, nor violative of the provisions of Ss. 179, 180, 181 and 52 of Cantonments Act, 1924, no demolition could be ordered under S.185 of Cantonments Act, 1924, and hence nothing existed to be compounded under first proviso to S.185(1) of Cantonments Act, 1924---Construction could be compounded under first proviso to S.185(1) of Cantonments Act, 1924, only when some unauthorized construction was made by the owner, lessee or occupier and in such case the Board might, instead of resorting to demolition of the whole or part thereof, as the case might be, could accept by way of composition such sum as it thought reasonable---No loss of single penny to the Board was caused by the Corporation and thus there was nothing to be demolished and the composition was out of place---Demand of Rs.10,00,000/- as composition money was not only unreasonable but illegal--­Reasonability or otherwise could be well appreciated in view of the admitted facts of the case---Demolition and consequent composition could only be resorted to when the construction was unauthorized and violative of Ss. 179, 180, 181 and 185 of Cantonments Act, 1924---Any other omission like one in dispute could lead to consequences provided by S.184 of Cantonments Act, 1924---Judgment passed by High Court was set aside and the composition as well as the quantum thereof was declared illegal, void and without jurisdiction--­Appeal was allowed.

(d) Administration of justice---

---- Act of public functionaries---Principle---When statute specifically requires a public functionary to act in a particular manner, it must act in that manner and the Courts have all the power to see as to whether it acted in that manner or not---Reasonableness or otherwise of an act is a question of fact which at times requires to be decided on the basis of evidence but in certain cases even the evidence is not required.

(e) Cantonments Act (II of 1924)-----

----Chap. XI, [Ss.178-A to 197]---Control over buildings---Delay in construction---Powers of Cantonment Board---Object and scope--­Respondent-Corporation could not complete its building within tile specified period despite getting extension in building period--­Cantonment Board imposed a fine in the sum of Rs.10,00,000 as composition money---Validity---Purpose of Cantonments Act, 1924, was not to permit exploitation of a given situation, particularly when that other proceeded against, was equally a Government controlled body--­Such state of affairs could only lead to creation of bad blood among people and Government departments or among two departments controlled by Government and hence to a bad governance---Composition fine imposed by Cantonment Board was set aside .by Supreme Court.

(f) Cantonments Act (III of 1924)---

----S. 185---Delay in construction---Imposition of fine--- Acceptance of composition fine ---Estoppel against law---Respondent-Corporation could not complete its building within the specified period despite getting extension in building period--Corporation vide one of its letters agreed to accept composition---Cantonment Board imposed a fine of Rs.10,00,000 as composition money---Fine so imposed was assailed by the Corporation in Constitutional jurisdiction before High Court and the petition was partially accepted by High Court---Plea raised by the Board was that the principle of estoppel was applicable as the Corporation had agreed to accept composition---Validity---Question of composition was a question of law and there existed no estoppel in law--­Corporation might have contemplated some reasonable amount of composition which it did not turn out to be in consequence---Supreme Court set aside the amount of composition being illegal, void and without jurisdiction.

Syed Zafar Abbas Zaidi, Advocate Supreme Court for Petitioners.

Maqbool Elahi Malik, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Respondents.

Date of hearing: 24th September, 2004.

2005 S C M R 186

[Supreme Court of Pakistan]

Present: Javed Iqbal and Abdul Hameed Dogar, JJ

Khawaja AHMAD HASSAAN‑‑‑Appellant

Versus

GOVERNMENT OF PUNJAB and others‑‑‑Respondents

Civil Appeal No. 1390 of 2003, decided on 28th May, 2004.

(On appeal from the judgment dated 22‑9‑2003 of the Lahore High Court, Lahore, in Writ Petition No. 11358 of 2003).

(a) Punjab Local Government (Recall 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)‑‑‑Vires of R.14(1)(2), Punjab Local Government (Recall Motions against Nazim and Naib Nazim) Rules, 2003‑‑‑Internal recall motion against Town Nazim‑‑­Leave to appeal was granted by the Supreme Court to consider inter alia as to whether 8.14(1)(2) of the Punjab Local Government (Recall Motions against Nazim and Naib Nazim) Rules, 2003 were ultra vires of the provisions of S.63, Punjab Local Government Ordinance, 2001 and if the said Rules i.e. 14(1) and (2) were found to be not ultra vires of the provisions of S.63, whether the discretionary power vested in the Provincial Election Authority in the present case had been exercised on the application of proper mind, keeping in view the principles laid down by the Superior Courts regulating the exercise of such powers.

(b) Punjab Local Government Ordinance (XIII of 2001)‑‑‑--

‑‑‑‑S. 63‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Order issued by Provincial Election Authority, restraining the Town Nazim from performing any of his functions as Town Nazim and consequential notification issued by the Provincial Government for appointment of Deputy Coordination Officer to perform functions of Nazim of the Town‑‑‑Validity‑‑‑Order passed by the Provincial Election Authority, had the effect of depriving the Town Nazim of exercising his powers and performing functions under the Punjab Local Government Ordinance, 2001 as Nazim though, under the provisions of the Ordinance, he would not cease to be Nazim, till the passing of the recall motion by majority of the total number of members of Union Council‑‑‑Supreme Court, in circumstances, suspended the order of Provincial Election Authority restraining the Town Nazim and consequential appointment of Deputy Coordination Officer to perform the function of Town Nazim, till the disposal of appeal.

(c) Mala fides‑‑‑-

‑‑‑‑Proof‑‑‑Held, it was one of the difficult tasks to prove mala fides but it is not considered impossible‑‑‑Principles.

Federation of Pakistan through the Secretary Establishment Division v. Saeed Ahmad Khan and others PLD 1974 SC 151; Muhammad Ishaq v. Collector Lahore District 2000 YLR 1074; Muhammad Ahmad Siddiqui v. Collector Lahore District 2000 MLD 820 and Hussain Ahmad v. Pervez Musharraf, Chief Executive PLD 2002 SC 853 ref.

(d) Punjab Local Government Ordinance (XIII of 2001)‑‑‑

‑‑‑‑Ss. 197 & 63‑‑‑Town Nazim, could not be stopped from performing his duties through notification under S.197, Punjab Local Government Ordinance, 2001 by the Provincial Government when recall motion was yet to be voted upon by the Members of Union Council as contemplated in S.63(4), (5), Punjab Local Government Ordinance, 2001‑‑‑Issuance of notification under S.197 of Punjab Local Government Ordinance, 2001 to the effect that Town Nazim having lost confidence of the House would cease to perform his functions till further orders and District Coordination Officer of the city would perform the duties of Nazim in his place smacked of mala fides because the power which was never conferred upon the Government had been exercised having no legal sanctity whatsoever behind the same.

Notification to the effect that Town Nazim having lost confidence of the house would cease to perform his functions till further orders and District Coordination Officer of the city would perform the duties of Nazim in his place could ‑ not have been issued under section 197 of the Ordinance, the provisions whereof have been misinterpreted and misconstrued because the elected representative could not have been substituted with that of District Coordination Officer City District Government of the city. How the Town Nazim could be stopped to perform his duties as recall motion was yet to be voted upon by the Members of Union Council as contemplated in section 63(4)(5) of the Ordinance. Even otherwise section 197 of the Ordinance could not have been invoked to achieve the ouster of the Town Nazim as its main object is the removal of any difficulty which may arise in giving effect to the provisions of the Ordinance, main object whereof is "to devolve political power and decentralize Administrative and financial authority to accountable local governments for good governance, effective delivery of services and transparent decision making through institutionalized participating of the people at grass‑roots level". The issuance of said notification smacks of mala fides because the power which was never conferred upon the Government has been exercised having no legal sanctity whatsoever behind it.

(e) Interpretation of statutes‑‑‑

‑‑‑‑Intention of the Legislature‑‑‑Determination‑‑‑Principles.

The first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself. If the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise. When the material words are capable of two constructions, one of which is likely to defeat or impair the policy of the Act whilst the other construction is likely to assist the achievement of the said policy, then the Courts would prefer to adopt the latter construction. It is only in such cases that it becomes relevant to consider the mischief and defect which the Act purports to remedy and correct.

The words of the statute are to be construed so as to ascertain the mind of the Legislature from the natural and grammatical meaning of the words which it has used.

It is an elementary rule of construction of statutes that the judicature in their interpretation have to discover and act upon the mens or sentential legis. Normally, Courts do not look beyond the litera legis.

The essence of law lies in its spirit, not in its letter, for the letter is significant only as being the external manifestation of the intention that underlies it. Nevertheless in all ordinary cases the Courts must be content to accept the litera legis as the exclusive and conclusive evidence of the sententia legis. They must, in general, take it absolutely for granted that the Legislature has said what it meant, and meant what it has said. Ita scriptumest is the first principle of interpretation. Judges are not at liberty to add to or take from or modify the letter of the law simply because they have reason to believe that the true sententia legis is not completely or correctly expressed by it. That is to say, in all ordinary cases grammatical interpretation is the sole form allowable. It is no doubt true that the felt necessities of the times must, in the last analysis, affect every judicial determination, for the law embodies the story of a nation's development through the centuries and it cannot be dealt with as if it contains only axioms and corrolaries of a book of mathematics. A Judge cannot stand aloof on chill and distant heights. The great tides and currents which engulf the rest of wren, do not turn aside in their course and pass the Judge by. But at the same tithe, the Judge must remember that his primary function is to interpret to law and to record what cite law is. He cannot allow his zeal, say, for social or agrarian reform, overrun his true function. He does not run a race with the Legislature for social or agrarian reform. His task is a more limited task; his ambition a more limited ambition. Of course in this process of interpretation he enjoys a large measure of latitude inherent in the very nature of judicial process. In the skeleton provided by the Legislature, he pours life and blood and creates an organism which is best suited to meet the needs of society and in this sense he makes and moulds the law in a creative effort. But he is tied by the basic structure provided by the Legislature which he cannot alter and to appeal to the spirit of the times or to the spirit of social or agrarian reforms or for the matter of that any other reform for the purpose of twisting the language of the Legislature is certainly a function which he must refuse to perform.

The words of a statute must, prima facie, be given their ordinary meaning. We must not shrink from an interpretation which will reverse the previous law; for the purpose of a large part of our, statute law is to make lawful that which would not be lawful without the statute, or, conversely, to prohibit results which would otherwise follow. Judges are not called upon to apply their opinions of sound policy so as to modify the plain meaning of statutory words but where, in construing general words the meaning of which is not entirely plain there are adequate reasons for doubting whether the Legislature could have been intending so wide an interpretation as would disregard fundamental principles, then. we may be justified in adopting a narrower construction. At the same time, if the choice is between two interpretations the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.

The first source from which the legislative intent is to be sought is the words of the statute. Then an examination should be made of the context, and the subject‑matter and purpose of the enactment. After the exhaustion of all intrinsic aids, if the legislative intent is still obscure, it is proper for the Court to consult the several extrinsic matters for further assistance. And during the consideration of the various sources of assistance, further help may, of course, be found on the use of the numerous rules of construction. Austin divided the interpretative process into three sub‑processes: (1) finding the rule; (2) finding the intention of the Legislature; and (3) extending or restricting the statute so discovered to cover cases which should be covered. DeSlovere recommended the following steps; (1) finding or choosing the proper statutory provisions; (2) interpreting the statute law in its technical sense; and (3) applying the meaning so found, to the case in hand.

There are three methods of judicial approach to the construction of a statute, viz. (i) the Literal; (ii) by employing the golden rule; (iii) by considering the mischief that the statute was designed to obviate or prevent.

Moreover, it must be assumed that the Legislature intended to correct the evils which led to the law's enactment. It is logical to assume, in a democracy, that the needs and the desires of the people will find expression in the enactments of the Legislatures consisting of representatives of the people. If this were not so, then there would be little, if any, justification for resorting to the circumstances surrounding the enactment of a law in an effort to ascertain the legislative intent.

Viscountess Rhonda's Claim,(1922) 2 AC 339, p.365 by Viscount Birkenhead, LC; Jurisprudence at p.152, 11th Edn.; Motilal v. L.T. Commr, AIR. 1951 Nag.224, 225; Thakorelal Amritlal Vaidya v. Gujarat Revenue Tribunal AIR 1964, Guj. 183, 187; Maxwell in Interpretation of Statutes, p.7, 10th Edn. Satyanarain v. Buishwanth AIR 1957 Pat. 550, 554; Nokes v. Doneaster Amalgamated Collieries (1940) AC, pp. 1014, 1022; Kinai Lal v. Parannidhi 1958 SCR 360; 367; AIR 1957 SC 907; 910‑11; Municipal Board, Rajasthan v. S.T.A. Rajasthan AIR 1955 SC 458, 464; Bootamal v. Union of India, AIR 1962 SC 1716, 1718, 1719; Sirajul Haq v. S.C. Board AIR 1959 SC 205; (1857) 6 HL Cas 61; 26 Lt.Ch.473; 1901 AC, at pp.102, 107, Collector of Customs, Baroda v. Digvijayasinhji and others Mills AIR 1961 SC 1549, 1551; Shri Ram v. State of Maharashtra, AIR 1961 SC 674, 678; AIR 1950 SC 165, 168; Madan Lal v. Changdeo Sugar Mills, AIR 1958 Bom. 491, 495; AIR 1954 SC 749; (1955) 1 SCR 829, 836‑7; AIR 1955 SC 376, 381; AIR 1955 SC 504; Kanai Lal v. Parannidhi, 1958 SCR 360, 367, , AIR 1957 SC 907, 910‑11; Municipal Board, Rajasthan v. S.T.A. Rajasthan AIR 1955 SC 458, 464; Jamat‑i‑Islami v Federation of Pakistan PLD 2000 SC 111; Muhammad Iqbal v. Government of Punjab PLD 1999 Lah. 109, Province of East Pakistan v. Noor Ahmad PLD 1964 SC 451; Collector of Sales Tax ‑ v. Superior Textile Mills Ltd. PLD 2001 SC 600; Shujat Hussain v. State 1995 SCMR 1249; Province of Punjab v. Munir Hussain Shah 1998 SCMR 1326; Interpretation of Statutes 7th Edn. 1984 by Dr. Tahir Mahmood; Understanding Statutes Canons of Construction, 2nd Edn. by S.M. Zafar; The Interpretation of Statutes by M. Mahmood and Craies on Statutes Law, 7th Edn. by S.G.G. Edgar ref.

(f) Punjab Local Government Ordinance (XIII of 2001)—--

­

‑‑‑‑S.63‑‑‑Interpretation and scope of S.63, Punjab Local Government Ordinance, 2001.

Section 63(1) of the Punjab Local Government Ordinance, 2001 has been couched in a simple and plain language and no scholarly interpretation is called for but the significance and import of certain words used therein cannot be ignored as it depicts that unbridled and unfettered powers/discretion have not been conferred upon the Member to move a recall motion whenever he so desires. In other words it does not depend upon the whims and wishes of a particular Member to move recall motion but it is subject to certain conditions which are as under:‑­

(a) Formation of opinion which surely means an independent assessment based on the consent which should be free from any temptation, coercion, inducement, undue influence and in the interest of public.

(b) If it is motivated by any other factor as mentioned hereinabove it would not be a `fair opinion'.

(g) Punjab Local Government Ordinance (XIII of 2001)-----

‑‑‑‑S. 63‑‑‑Punjab Local Government (Recall Motions against Nazini and Naib Nazim) Rules, 2003, R.14(1)(2)‑‑‑Internal recall of Town Nazim‑‑­Requirements‑‑‑Recall motion would not depend on the whims and wishes of the Member to move such motion unless in "his opinion" there was a "reason to believe" that Nazim was acting against the public policy or the interest of people or was negligent or was responsible for loss of opportunity to improve governance and the delivery of services‑‑­Member proposing the recall motion, in the present case, had kept mum and had failed to utter even a single word in support of the recall motion which conduct was unusual against human behaviour but highly critical; while the member by whom the motion was seconded had highlighted the background and circumstances which compelled him to support the motion‑‑‑Said member mentioned in a categoric. manner that he was apprehending danger to his life and stated that all the allegations levelled against the Nazim were baseless‑‑‑Views expressed by the seconder were indicative of the fact that the motion was not seconded voluntarily but on the contrary it was result of threat, coercion, inducement, harassment and dictation‑‑‑Punjab Local Government (Recall Motions against Nazim and Naib Nazim) Rules, 2003 were framed and made applicable with immediate effect in violation of provisions of S.191, Punjab Local Government Ordinance, 2001 which made publication of such Rule, mandatory in the official Gazzette before the same could be male applicable‑‑‑No "opinion" could be formulated by the Member moving the "Internal recall" unless and until the Member had "reason to believe" that the Nazim was acting against the public policy or the interest of people or was inefficient being negligent to perform his functions including good governance or his failure to fulfil the genuine expectations of the voters of the area‑‑‑Opinion so formulated must be based on some reasoning‑‑‑If the opinion of a Member was free from bias, mala fides, ulterior motives, illegal gains, temptations, coercion, harassment, political motivation and mischief the same would be not justiciable otherwise it could be looked into subject to certain exceptions; however free and fair opinion formulated in accordance with the parameters as laid down in S.63 of the Ordinance, would not be justiciable ‑‑‑Held, proceedings initiated against the Nazim for recall motion, in circumstances, appeared to be mala fide and fraught with manoeuvring, coercion, inducement, harassment and threats‑‑‑Entire proceedings initiated against the Nazim being mala fide were set aside by the Supreme Court being unlawful and without effect‑‑‑Proceedings which culminated into first recall motion were accordingly quashed‑‑­Supreme Court observed that Nazim having lost the confidence of the majority thus proceedings qua recall motion as enumerated in S.63, Punjab Local Government Ordinance 2001 could be reinitiated if so desired by the House subject to all legal exceptions.

The relevant proceedings would reveal that proposer of recall motion kept mum and failed to utter even a single word in support of recall motion and such conduct was not only unusual against human behaviour but highly critical. It did not depend on the whims and wishes of the Member to move such a motion unless in "his opinion" there was a "reason to believe" that the Nazim was acting against the public policy or the interest of the people or was negligent or was responsible for loss of opportunity to improve governance and the delivery of services. The member by whom the motion was seconded had highlighted the background and circumstances which compelled him to support the motion. He mentioned in a categoric manner that he was apprehending danger to his life and stated that all the allegations levelled against the Nazim were baseless.

Views as expressed by the seconder were indicative of the fact that the motion was never seconded voluntarily but on the contrary it was result of threat, coercion, inducement, harassment and dictation. The rules were framed and made applicable with immediate effect in violation of the provisions as contained in section 191(3) of the Punjab Local Government Ordinance which made publication of such rules mandatory in the official gazette before it could be made‑applicable. The rules were admittedly published in the official gazette on 18‑9‑2003 but the Government of Punjab issued Notification No.SOV(LG)5‑17/2002(P) dated 16‑8‑2003 whereby an elected representative was substituted with that of a bureaucrat which not only depicts mala fides but an indecent haste as well. The said notification was, however, withdrawn by another notification dated 2nd September, 2003. The withdrawal of said notification leads to draw the inescapable conclusion that the issuance of earlier notification was mala fide and unlawful. The recall motion had two phases, before it could attain finality as laid down in section 63 of the Ordinance. The recall motion could only be completed after its approval by the Union Councils in term of section 63(4) of the Ordinance and until completion of that process the Nazim could not have been ousted from the office and accordingly the said notification could not have been issued. In fact no opinion was formulated by the proposer and seconder which in fact was based on extraneous considerations such as inducement, coercion and registration of false and fake cases. The speech of the seconder reflects a clear picture of the compelling circumstances which forced him to support the recall motion. The foundation of the entire edifice was based on mala fides and coercion which must fall on the ground being in grave violation of the object and reason of the Ordinance specially the provisions as contemplated in section 63 of the Ordinance. It was a severe blow on the new adverted system which otherwise was not flawless and would collapse, if such illegal, immoral, undemocratic and dishonest practice was allowed to be continued. The democratic values must be protected to save the system which otherwise was crumbling of certain obvious reasons. It trust not be lost sight of that no such opinion could be formulated unless and until the Member has "reason to believe" that Tehsil Nazim was acting against the public policy or the interest of the people or is inefficient being negligent to perform his functions including good governance or his failure to fulfill the genuine expectations of the voters of the ''area. The opinion so formulated must be based on some reasoning. If the: opinion of a Member is free from bias, mala fides, ulterior motives, illegal gains, temptation, coercion, harassment, political motivation and mischief, it would not be justiciable otherwise it could be looked into subject to certain exceptions. A free and fair opinion formulated in accordance with the parameters as laid down in section 63 of the Ordinance would not be justiciable except as mentioned herein above.

The proceedings initiated against the Nazim for recall .motion appeared to be mala fide and fraught with maneuvering, coercion; inducement, harassment and threats.

The entire proceedings initiated against the Nazim being mala fide were set aside being unlawful and without legal effect. The entire proceedings, which culminated into first recall motion, were accordingly quashed. Nazim having lost the confidence of majority, proceedings qua recall motion as enumerated in section 63 of the Ordinance may be reinitiated if so desired by the House subject to all legal exceptions.

(h) Punjab Local Government Ordinance (XIII of 2001)‑‑‑

‑‑‑‑S. 191‑‑‑Power to make rules‑‑‑Power conferred upon the Government is not unlimited but subject to certain prerequisites and conditions‑‑‑Principles.

(i) Interpretation of statutes‑‑‑

‑‑‑‑ Rules framed under the statute‑‑‑Nature, scope and construction‑‑­Principles.

Government has been empowered to frame rules the power 9o conferred upon the Government is not unlimited but subject to certain prerequisites and conditions which are as under:‑‑

(i) The rule may be framed for carrying out the purpose of the Ordinance i.e. to devolve political power and decentralize administrative and financial authority to accountable local governments for good governance, effective delivery of services and transparent decision

making through institutionalized participation of the people at grass‑roots level.

(ii) The legislation has made it obligatory by using the word "shall" in section 191(3) that the rules so framed must meet certain consideration such as consistency with democratic decentralization and subsidiarity, enhancement of welfare of people, fairness and clarity and natural justice and the process of law.

The initial difference between subordinate legislation and statute law lies in the fact that a subordinate law‑making body is bound by the terms of its delegated or derived authority, and that Courts of law, as a general rule, will not give effect to the rules, etc. thus made, unless satisfied that all the conditions precedent to the validity of the rules have been fulfilled. The validity of statutes cannot be canvassed by the Courts the validity of delegated legislation as a general rule can be. The Courts therefore (1) will require due proof that the rules have been made and promulgated in accordance with the statutory authority, unless the statute directs them to be judicially noticed. In the absence of express statutory provision to the contrary, may inquire whether the rule‑making power has been exercised in accordance with the provisions of the statute by which it is created either with respect to the procedure adopted, the form or substance of the regulation, or the sanction, if any, attached to the regulation. It follows that the Court may reject as invalid and ultra vires a regulation which fails to comply with the statutory essentials.

When the legislature confers power on Government to frame rules it is expected that such powers will be used only bona fide, in a responsible spirit and in the true interest of the public and in furtherance of the object for the attainment of which such powers were conferred.

Rule‑making authority which falls within the ambit of subordinate legislation as conferred upon the Government by virtue of section 191 of the Ordinance is neither unlimited nor unbridled and the limitations as mentioned in section 191 of the Ordinance must be adhered to in letter and spirit.

It cannot be said that an unlimited right of delegation is inherent in the legislative power itself. This is not warranted by the provisions of the Constitution and the legitimacy of delegation depends entirely upon its being used as an ancillary measure which the Legislature considers to be necessary for the purpose of exercising its legislative powers effectively and completely. The Legislature must retain in its own hands the essential legislative functions which consist in declaring the legislative policy and laying down the standard which is to be enacted into a rule of law and what can be delegated is the task of subordinate legislation which by its very nature is ancillary to the statute which delegates the power to make it.

Rules made under a statute must be treated for all purposes of construction or application exactly as if they were in the Act and are to be of the same effect as if contained in the Act and are to be judicially noticed for all purposes of construction and application. Such Rules cannot be treated as administrative directions. They continue to be rules subordinate to the Act, and though for certain purposes, including the purpose of construction, they are to be treated as if contained in the Act, their true nature as subordinate rule is not lost. Rule of interpretation is that if subordinate legislation is directly repugnant to the general purpose of the Act which authorizes it, or indeed is repugnant to any well­-established principle of statute ...., it is either ultra vires altogether, or must, if possible, be so interpreted as not to create an anomaly. If reconciliation was found to be impossible between the section and the rules made thereunder and the latter is found to be in excess of the statutory power authorizing them, the subordinate provision, the rules so made, must give way and such rules shall be held to be ultra vires the rule‑making authority. But before going to that length, Court will have to struggle against such a construction and will have to make an effort within the bounds of reason to bring them within the ambit of the rule­making power if that can be possibly so done. This is because when a competent authority entrusted with the task of making rules, exercises that power, the rules made by it should be as far as possible supported even by a `benevolent' interpretation, particularly when the result of holding otherwise would be to give rise to a conflict of jurisdiction.

Rules, which must be read together with the Act under which they are made, cannot repeal or contradict express provisions in the Acts from which they derive their authority, and `if the Act is plain, the rule must be interpreted so as to be reconciled with it, or, if it cannot be reconciled, the rule must give way to the plain terms of the Act.

If the rules framed under the statute are in excess of the provisions of the statute or are in contravention of or inconsistent with such provisions then those provisions must be regarded as ultra vires of the statute and cannot be given effect to.

In the case of statutory rules the Court can always examine the question as to whether the same are inconsistent with the statute under which they are made.

A rule‑making body cannot frame rules in conflict with or derogating from the substantive provisions of the law or statute under which the rules are framed. No doubt that the rules‑making authority has been conferred upon the Government but "a rule, which the rule‑making authority has power to make will normally be declared invalid only on the following grounds:‑‑

(1) Bad faith, that is to say that powers entrusted for one purpose are deliberately used with the design of achieving another, itself unauthorized or actually forbidden;

(2) that it shows on its face a misconstruction of the enabling Act or a failure to comply with the conditions prescribed under the Act for the exercise of the powers; and

(3) that it is not capable of being related to any of the purposes mentioned in the Act.

Rules cannot go beyond the scope of the Act nor can they, by themselves, enlarge the scope of statutory provisions. They cannot also militate against the provision under which they were made.

The power of rule making is an incidental power that must follow and not run parallel to the present Act. These are meant to deal with details and can neither be a substitute for the fundamentals of the Act nor can add to them.

There are two main checks in this country on the power of the Legislature to delegate, these being its good sense and the principle that it should not cross the line beyond which delegation amounts to abdication and self‑effacement. The only requirement of law in such situations is to insist that the subordinate body charged with the duty of making rules must strictly confine itself within the sphere of its authority for the exercise of its subordinate legislative power and in each case it is the duty of the Courts in appropriate proceedings to be satisfied that the rules and regulations so made are:

(a) by the authority mentioned in the Act and

(b) that they are within the scope of the power delegated therein.

Rules made under any Act could never be intended to override the specific provisions of the Act itself. The purpose of the Rules is to provide for procedural matter or matters which are subsidiary to the provisions of the Act.

Rules may in some cases explain the provisions of the Act and it might in certain cases be legitimate to read the rules alongwith the provisions of the Act in order to find out the true intention of the Legislature in enacting the latter, no rules can ever be construed to override the specific provisions of the Act itself.

Although rules made under the Act cannot override the Act, they may be used as contemporance expositio of an ambiguous provision in the Act, specially when they are to have effect as if enacted in the Act.

If the rules framed under the statutes, or bye‑laws framed under the rules, are in excess of the provisions of the statute or are in contravention of or inconsistent with such provisions then these provisions must be regarded as ultra vires of the statute and cannot be given effect to.

The rules made in pursuance of a delegated authority must be consistent with the statute under which they came to be made. The authority is given to the end that the provisions of the statute may be better carried into effect, and not with the view of neutralizing or contradicting those provisions.

Rules framed under the rule‑making power given by an Act should not be repugnant to the Act and in case of conflict between the rules and the Act, the Act should prevail.

The general power to make rules cannot, however, be used, to widen the purposes of the Act or to add new and different means for carrying out or to depart from, and vary its terms.

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

Institute of Patent Agents v. Lackwood (1894) AC 347, 359, 360, 364, 365; Cf. London Traffic Act, 1924, S.10(3); Land Realization Co. Ltd. v. Postmaster‑General (1950) 66 TLR (Pt.l) 985, 991 per Romer, J. (1950 Ch. 435); 1951 SCR 747; Harilal v. Deputy, Director of Consolidation 1982 All LJ 223; Chief Inspector Mines v. K.C. Thapar AIR 1961 SC 838, 845; Narasimha Raju v. Brundavanasaha AIR 1943 Mad. 617, 621; Aribam Pishak Sharma v. Aribam Tuleswar Sharma AIR 1968 Manipur 74; Quoted James, LJ in Ex parte Davies (1872) 7 Ch.A. 526, 529; "New Sindh", AIR 1942 Sindh 65, 71; Barisal Cooperative G0titral Bank v. Benoy Bhusan AIR 1934 Ca1.537; Municipal Corportion v.; Saw Willie AIR 1942 Rang. 70, 74; Hazrat Syed Shah Mustarshid Ali AI‑Quadari v. Commissioner of Wakfs AIR 1954 Ca1.436; Shankar Lal L.axmi Narayan Rathi v. Authority under Minimum Wages Act 1979 MPLJ . ]5; M.P. Kumaraswami Raja AIR 1955 Mad. 326; K.Mathuvadivela v. RT Officer AIR 1956 Mad.143; Kashi Prasad Saksentt.v. State of U.P. AIR 1967 All. 173; PLD 1975 Azad J&K 81; pLD 1966 Lah. 287; Shanta Prasad v. Collector, Nainital 1978 All. LJ 126; Dattatraya Narhar Pitale v. Vibhakar Dinka Gokhale 1975 Mah. LJ 701; N1rayanan v. Food Inspector, Calicut Corporation 1979 Ker LT 469; Ganpat v. Lingappa AIR 1962 Bom 104, 105; Adarash Industrial Corporation v. Market Committee, Karnal AIR 1962 Punj. 426, 430 by Tek Ch4nd, J.; Devjeet v. Gram Panchayat AIR 1968 Raj LW 231; Shri Synthetics, Ltd., Ujjain v. Union of India 1982 Jab LJ 279; 1982 MPLJ 340; Central Bank of India v. Their Workmen AIR 1960 SC 12; Barisal Cooperative Central Bank v. Benoy Bhusan AIR 1934 Ca1.537, 540; Rajam Chetti v. Seshayya ILR 18 Mad.236, 245; Raghanallu Naidu v. Corporation of Madras AIR 1930. Mad. 648; Pakistan v. Aryan Petro Chemical Industries (Pvt.) Ltd. 2003 SCMR 370; Ziauddin v. Punjab Local Government 1985‑ SCMR 365; Hirjina Salt Chemicals (Pak) Ltd. v. Union Council Gharo 1982 SCMR 522; Mehraj Flour Mills v. Provincial Government 2001, SCMR 1806 and Collector of Sales Tax v. Superior, Textile Mills Ltd. PLD 2001 SC 600 ref.

(J) Punjab Local Government (Recall Motions against Nazim and Naib Nazim) Rules, 2003‑‑‑

‑-‑‑S. 14‑‑‑Punjab Local Government Ordinance (XIII of 2001), S.191‑‑­Provisions as contained in R.14, Punjab Local Government (Recall Motions, against Nazim and Naib Nazim) Rules, 2003 are not only in consonance but are in violation of the provisions of 5.191, Punjab Local Government Ordinance, 2001‑‑‑Everything has been incorporated in the said Roles except consistency with democratic decentralization, enactment of welfare of the people, fairness and due process of law... Election Authority has been blessed with all the powers which were never conferred upon it by the Ordinance‑‑‑Bar/restrain could not have been imposed by the Election Authority on Nazims and Naib Nazims being :public representatives against performing their functions‑‑Government could not nominate any bureaucrat to perform such functions which were required to be performed by an elected person.

Rule 14, Punjab Local Government (Recall Motions against Nazim and Naib Nazim) Rules, 2003 is not in consonance with section. 191 of the Punjab Local Government Ordinance, 2001 as the main object of the framing of such rule was to kick out certain Nazims. The inordinate delay which occurred in framing of rules leads to draw the only irresistible conclusion that its enactment with promptitude at a particular juncture was to use it against certain "undesirable Nazims". The said view finds support from the fact that the rules were used without getting it published in the official gazette which was sine qua non prior to its promulgation. The rules have not only been framed in a haphazard manner but it depicts indecent haste as well. Supreme Court declined to provide any guideline qua framing of rules which falls within the, exclusive jurisdictional domain of the Government and besides that a comprehensive guideline has been provided under section 19.1 of the Ordinance itself as well as in the preamble. The provisions as contained in the rules are not only in consonance but also in violation of the provisions as contained in section 191 of the Ordinance. Everything has been incorporated in the rules except consistency with democratic decentralization, enactment of welfare of the people, fairness and due process of law. The Election Authority has been blessed with all the powers which were never conferred upon it by the Ordinance. How a bar/restrain could have been imposed by the Election Authority on Nazims and Naib Nazims being public representatives from performing their functions? How the Government could nominate any bureaucrat to perform such functions which are required to be performed by an elected person.

(k) Delegated legislation‑‑‑

‑‑‑‑Determination as to whether a piece of delegated legislation was bad on the ground of arbitrary and excessive delegation‑‑‑Principles to be kept in view by the Court enumerated.

Where a Court is required to determine whether a piece .of delegated legislation, is bad on the ground of arbitrary and excessive delegation, the Court must bear in mind the following well‑settled principles:‑‑

(1) The essential legislative function consists of the determination of the legislative policy and its formulation as a binding rule of conduct and this cannot be delegated by the Legislature.

(2) The legislature must retain in its own hands the essential legislative functions and what can be delegated is the task of subordinate legislation necessary for implementing the purposes and objects of the Act.

(3) Where the legislative policy is enunciated with sufficient clearness or a standard is laid down, the Courts should not interfere.

(4) What guidance should be given and to what extent and whether guidance has been given in a particular case at all depends on a consideration of the provisions of a particular Act with which the Court has to deal, including its Preamble.

(5) The nature of the body to which delegation is made is also a guidance in the matter of delegation.

(6) What form the guidance should take, will depend upon the circumstances of each statute under consideration, and cannot be stated in general terms. In some cases guidance in broad general terms may be‑enough, in other cases more detailed guidance may be necessary.

Shankarlal Laxminarayan Rathi v. Authority under Minimum Wages Act,. 1979 MPLJ 15 quoted.

(1) Vires of Rules‑‑‑

‑‑‑‑ Rules may be declared ultra vires if the same are not made, sanctioned, published in the manner prescribed by the enactment, repugnant to it, uncertain or unreasonable, bad faith, misconstruction of enabling Act, failure to comply with the conditions prescribed under the enactment and violation of the object and reasons of the enactment.

(m) Rules‑‑‑

‑‑‑‑ Power to make rules‑‑‑Scope

It is a recognized principle of law that the rules made in pursuance of a delegated authority must be consistent with the statute, under which they came to be made. The authority is given to the end that the provisions of, the statute may be better carried into effect, and not with the view of neutralizing or contradicting those provisions.

Rules framed under the, rule‑making power given by an Act should not be repugnant to the Act and in case of conflict between the Act and the rules the Act should prevail.

The general power to make rules cannot however, be used, to widen the purposes of the Act or to add new and different means for carrying out or to, depart from, and vary its terms.

If the power can be found elsewhere than the section quoted, the rule will be referred to that power and held not to be ultra vires.

When rules are framed they may be referred to any power in the Act which validates them.

Where an authority passes an order which is within its competence it cannot fail merely because it purports to be made under a wrong provision if it can be shown to be within its powers under any other rule:

Provided that the law-making body had authority to make it under some other provision of law misquoting its authority by oversight or mistake does not take away any authority given by law.

In order to justify a rule, the rule itself need not show on its face under what particulars section of Act it is being made. So long as the rule, can be justified under the rule‑making power, the non‑recital of the fact that it has been so made, will not make the rule bad or invalid.

It would be a grave departure from well‑recognized legislative practice and it would be a mockery of the Legislature if the existence or efficacy of the provisions of a statute is left to the kind mercies of the rule‑making powers of the Government. No interpretation favouring such a construction could commend itself to Courts. It is something revolting to the jurisprudence to imagine that the command of the Legislature could be overridden by the fiat of the Government.

Rajam Chetti v. Seshayya ILR 18 Mad.236, 245; Raghanallu Naidu v. Corporation of Madras AIR 1930 Mad. 648; Central Karnataka Motor Services Ltd. v. State of Mysore AIR 1957 Mys 7; PLD 1967 Kar. 618; Shankarlal Laxinarayan Rathi v. Authority under Minimum Wages Act 1979 MPLJ 15; Secretary of State v. Appurao AIR 1924 Mad. 24; King Emperor v. Shirallabh,AIR 1925 Nag. 393; Hukam Chand Mills v. State of M.P. AIR 1959 MP 195, 196; Gulabbai v. Board of Revenue AIR 1957 MP 43; Bala Kotiah v. Union of India AIR 1958 SC 232; Prem Shankar Sarma v. Collector 1962 Jab LJ 997; Raghanalu Naidu v. Corporation of Madras AIR 1930 (sic) 648, 650; Brojendra Kumar v. Union of India AIR 1961 Cal. 217, 220 and Rama Rao v. Mund Kur AIR 1960 Mys 313, 314 ref

(n) Interpretation of statutes‑‑‑

‑‑‑‑ Power to make rules‑‑‑Scope.

Rajam Chetti v. Seshayya ILR 18 Mad.236, 245; Raghanallu Naidu v. Corporation of Madras AIR 1930 Mad. 648; Central Karnataka Motor Services Ltd. v. State of Mysore AIR 1957 Mys 7; PLD 1967 Kar. 618; Shankarlal Laxinarayan Rathi v. Authority under Minimum Wages Act 1979 MPLJ 15; Secretary of State v. Appurao AIR 1924 Mad. 24; King Emperor v. Shirallabh AIR 1925 Nag. 393; Hukam Chand Mills v. State of M.P. AIR 1959 MP 195, 196; Gulabbai v. Board of Revenue AIR 1957 MP 43;. Bala Kotiah v. Union of India AIR 1958 SC 232; Prem Shankar Sarma v. Collector 1962 Jab LJ 997; Raghanalu Naidu v. Corporation of Madras AIR 1930 (sic) 648, 650 and Brojendra Kumar v. Union of India AIR 1961 Cal. 217, 220 ref.

(o) Punjab Local Government (Recall Motions against Nazim and Naib Nazim) Rules, 2003‑‑‑

‑‑‑‑8. 14‑‑‑Punjab Local Government Ordinance (XIII of 2001), Ss.63 & 91‑‑‑Vires of R.14, Punjab Local Government (Recall Motions against Nazim and Naib Nazim) Rules, 2003‑‑‑Rule 14 of the said. Rules was not consistent with provisions of S.63, Punjab Local Government Ordinance, 2001 and framing of the Rules was not a bona fide exercise‑‑‑Rule 14 of the Rules, therefore, was ultra vires of the Punjab Local Government Ordinance, 2001 and could not be given effect to‑‑‑Principles.

Provisions of rule 14 of the Punjab Local Government (Recall Motions against Nazim and Naib Nazim) Rules, 2003 is not consistent with the provisions of section 63 of the Punjab Local Government Ordinance. There is neither any logic nor reasoning behind such substitution as allowed by the rules whereby a public functionary can be substituted with that of a bureaucrat. The speculative misuse of powers can be prevented by invoking the provisions as contained in section 63(4) of the Ordinance which provides that if the motion referred to in subsection (1) of section 63 is approved by majority of the votes of its total membership through a secret ballot, the Election Authority shall cause a vote to be cast by the members of Union Councils in the Tehsil. It can be done within a short span of time, which would eliminate the possibility of misuse of power of Nazim or Naib Nazim. The second phase concerning the recall motion as envisaged in section 64(4) of the Ordinance which otherwise should be completed at the earliest enabling the house to elect the new Nazim which would be in the. interest of public and moreso, there would be no occasion for suspicion/doubts, abuse of authority and misuse of power. The subordinate power of framing rules granted by the statute cannot be exercised to override the express provisions of the statute itself, therefore, rule 14 of the Rules is ultra vires of the Punjab Local Government Ordinance and cannot be given effect to.

Framing of rule was not a bona fide exercise.

(p) Interpretation of statutes‑‑‑

‑‑‑‑ Contemporaneous events may constitute an important extraneous side to the construction of a statute‑‑‑Principles.

Contemporaneous events may constitute an important extraneous side to the construction of a statute. The concept of such events embraces the history of the period when the statute was enacted, including the history of the statute itself, the previous state of the law, and the mischief or evil against which the statute was aimed as a remedy. In an over‑all sense, contemporaneous events are the relevant conditions existing at the time of adoption of the law. As such, they may be consulted for the purpose of removing ambiguities in the language of an obscure Act. To know the mischief to be remedied or the course or necessity of a law, is to accomplish much of the task of knowing the true meaning. The most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering, the reason and spirit of it, or the cause which moved the legislators to enact it.

(q) Punjab Local Government Ordinance (XIII of 2001)‑‑‑

‑‑‑‑S. 63‑‑‑Vires of S.63, Punjab Local Government Ordinance, 2001‑‑­Provisions as enumerated in S.63 of the Ordinance is not repugnant to the Constitution and is a valid piece of legislation.

(r) Democracy.

‑‑‑‑Democracy at grass‑roots level‑‑‑Supreme Court observed that System introduced was altogether a new experience in the democratic system of Pakistan which has its own peculiar characteristics, alien to it as borrowed from different countries by ignoring the ground realities, completion of necessary infrastructure, spade work and resultantly neither it could deliver the goods nor desired results‑‑‑Guidelines to achieve the desired goal were provided by the Supreme Court.

Democracy at grass‑roots level is altogether a new experience in democratic system of Pakistan which has its own peculiar characteristics, alien to it as borrowed from different countries by ignoring the ground realities, completion of necessary infrastructure, spade work and resultantly neither it could deliver the goods nor desired results. Keeping in view the past experiences made by different regimes "we have to evolve a system which begins at the beginning and after building a strong base goes on to construct the structure above. It has to be different from the system which seemingly failed and under which a beautifully trimmed structure with all the frills of parliamentary democracy, but hollow from within, was to be suspended from above without any base below on which to rest. Such a system was bound to fail sooner or later because it was unrelated to local conditions. In this connection it is worth‑recalling Sydney Webb's remarks. He said, that any system of government, however mechanically perfect, would fail to take root in the midst of the mass of people, unless it was in some way grafted on the spontaneous grouping of the people themselves. In Pakistan, it broke down sooner than later because it was neither mechanically perfect nor were the mechanics sufficiently qualified to look after it. If Pakistan is to be a real democracy, then all her inhabitants must have a say in their affairs. With the prevailing level of political consciousness they can fully understand their immediate problems and requirements and evaluate what is of immediate good and what is not. There is little reason, therefore, why advantage of this should not be taken by involving them in the management of their affairs through directly chosen representatives. For a villager it is, perhaps, not possible to assess with any degree of accuracy the qualities and disabilities of rival candidates from distant cities who may make periodic appearances at the time of elections, but he is surely a good Judge of a fellow villager who may canvass for his vote for a local council." The said goal can only be achieved if there is no politically motivated interruption and interference from any quarter whosoever it may be. It would not be in the interest of anybody to blame any quarter for its failure specially in the law and order context which hardly needs any elaboration in view of alarming deterioration and it is high time to let the newly‑evolved system work freely without any political and bureaucratic interference or interruption of any kind whatsoever. The newly‑evolved system and all the new laws and rules made to make it functional need an independent, impartial and thorough review as drastic changes would be needed to achieve the desired results.

Malik Muhammad Qayyum, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate‑on‑Record for Appellant.

Syed Shabbar Raza Rizvi, Advocate‑General, Punjab, Dr. Khalid Ranjha, Advocate Supreme Court, Ms. Afshan Ghazanfar, A.A.‑G. Punjab, Rao Muhammad Yousaf, Advocate‑on‑Record for Official Respondents.

Muhammad Akram Sheikh, Senior Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondents Nos.2, 3, 6 and 7.

Nemo for Respondent No.5.

Date of hearing: 30th March, 2004.

2005 S C M R 235

[Supreme Court of Pakistan]

Present: Nazint Hussain Siddiqui C.J., .Javed Iqbal and Abdul Hameed Dogar, JJ

KHYBER ZAMAN and others‑‑‑Petitioners

versus

GOVERNOR, STATE BANK OF PAKISTAN, KARACHI and others‑‑‑Respondents

Crl. Original Petitions Nos. 32, 33, 34 & 2003 and 2 of 2004, decided on 29th April, 2004.

(On appeal from the judgment, dated 19‑11‑2002 of this Court passed. in Criminal Original Petitions Nos.46, 47, 48 of 2001 and 21 of 2002, respectively).

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

‑‑‑‑Art. 204‑‑‑Contempt of Court‑‑‑Petition for contempt of Court‑‑‑State Bank of Pakistan employees‑‑‑Option of Golden Handshake Scheme and Revised Salary Package‑‑‑Last date for exercise of option was fixed 22‑11‑1997 and Revised Salary Package dated 29‑11‑1997 was enforced with effect from 1‑12‑1997 and the revised pay of the employees who opted for the scheme was fixed in new salary package vide Pay Fixation Sheet dated 8‑12‑1997‑‑‑Bank accepted the option of employees for the Scheme on 3‑12‑1997 and by virtue of the acceptance they were released from their services on 15‑12‑1997‑‑‑Bank had promised in the Scheme to provide additional benefits to the employees as an incentive and employees were also entitled to normal retirement benefits as indicated in the Scheme‑‑‑Bank calculated all the financial benefits under the scheme on the basis of pay as on 22‑11‑1997, which, according to the employees was illegal and the same should have been calculated as on 15‑12‑1997, when the employees were relieved‑‑‑Supreme Court in its Judgment had concluded that all pensionary benefits shall be calculated by taking into account the period between 1‑12‑1997 to 15‑12‑1997‑‑­Bank, in response to the Supreme Court judgment calculated only pension and commutation on the basis of average pay drawn by the employees during the last 12 months (i.e. 16‑12‑1996 to 15‑12‑1997) instead of calculating all pensionary benefits on the basis of last pay drawn on 15‑12=1998 and according to the employees violated not. only its own Rules and Regulations but also the findings recorded by the Supreme Court‑‑‑Employees, in circumstances, filed contempt of Court petitions before the Supreme Court to direct the Bank to calculate all retirement/financial benefits of the employees on the basis of last pay drawn after treating the date of retirement as 15‑12‑1997 and also give them all those post retirement benefits which were not given to them‑‑‑Supreme Court disposed of the petition and concluded that act of the Bank was not tainted with mala fides and that the Bank acted under bona fide impression as such the contempt notices issued to the concerned employees of the Bank were discharged‑‑‑Bank, after the Supreme Court decision, directed all its Chief Managers to calculate all the benefits under the Scheme on the basis of salary drawn by the employees on 15‑12‑1997 instead of 2241‑1997 but at the time of its implementation the Bank limited to its pension only and not to other retirement/ pensionary benefits‑‑‑Contention of the petitioners was that calculation should have been for all retirement benefits and one could not apply one date for calculating pensionary benefits, while another date for calculating other retirement benefits and that retirement benefits included pension and all other pensionary benefits‑‑‑Validity‑‑‑Held, "pensionary benefits/retirement benefits" shall be paid to the employees by calculating all the retirement/financial benefits on the basis of last pay drawn after treating the date of retirement as 15‑12‑1997‑‑‑Such exercise had to be completed expeditiously and benefits so calculated to be paid to the employees within two months from the date of present judgment of the Supreme Court and compliance to be reported to the Registrar of the Supreme Court‑‑‑Case was not fit for initiating contempt proceedings against the concerned employees of the bank as they had acted under the bona fide impression that the employees were not entitled to the said amount‑‑‑Petitions were allowed accordingly.

(b) Pension‑‑‑

‑‑‑‑Connotation‑‑‑Constitution of Pakistan (1973), Art.260.

Pension means series of periodic money payments to a ‑person who retires from employment because of age, disability, or the completion of an agreed span of service. The payments usually continue for the rest of the natural life of the recipient, and sometimes to his widow or other survivor. Military pensions have existed for many centuries; private pension plans originated in Europe during the 19th Century.

Eligibility for and amounts of benefits are based on a variety of factors, including length of employment, age, earnings, and, in some cases, past contributions.

Pension is defined as a periodical payment made by a Government, company or any employer or labour in consideration of past services or the relinquishment of rights, claims or emoluments; regular payment to person in order that they may maintain themselves.

According to Art. 260 of the Constitution "Pension" means a pension, whether contributory or not, of any kind whatsoever payable to, or in respect of, any person and includes retired pay so payable, a gratuity so payable, and any sum or sums so payable by way of the return, with or without interest thereon or any addition thereto, of subscriptions to a provident fund.

As per definition of term "pension" in the Constitution, it includes retired pay so payable, a gratuity so payable, and any sum or sums so payable by way of the return, with or without interest thereon or any addition thereto of subscriptions to a provident fund. It is apparent from this definition that term pension is not confined to series of periodic money payments to a person after retirement, but it also includes gratuity or some other sum, as defined in term pension appearing in the Constitution.

The term pension is a collective name of all the benefits an employee gets under various heads. All are generally known as pensionary benefits or retirement benefits. They are the same. In general sense, the term "pension" denotes to a grant after release from service.

New Encyclopedia Britannica Vol. 9, 15th Edn. p:266 and Law Laxican Act 21, 1886, S.2 241C 803 ref.

Words and phrases‑‑‑

"Synonymous" ‑‑‑Meaning.

Webster New International Dictionary (Second Edition) p.2560; World Book Dictionary Vol. II. p.2129; Black Laws Dictionary 5th Edn. p.1300; Words and Phrases Permanent Edition Vo1..40A, p.634 and Legal and Thesaurus Regular Edition by William C. Burton p.991 ref.

(d) Words and phrases‑‑‑

‑‑‑‑‑‑ Pensionary benefits" and "retirement benefits"‑‑‑Words are synonymous and do not carry different meanings‑‑‑Principles.

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

‑‑‑‑Art. 204‑‑‑Contempt of Court‑‑‑Action of State functionaries in complying with the directions of the Supreme Court which was not tainted with mala fide and the department had acted under bona fide impression, as such the notices for contempt to the concerned functionaries of the department were discharged.

Muhammad Akram Sheikh, Senior Advocate Supreme Court with M.A. Zaidi, Advocate‑on‑Record (absent) for Petitioners. (in Cr. ‑Org. P.No.32 of 2003).

Abdul Majeeb Pirzada, Senior Advocate Supreme Court with M.S. Khattak, Advocate‑on‑Record for Petitioners (in Crl. Org. P.No.33 of 2003).

Fakhurddin G. Ibrahim, Senior Advocate Supreme Court with. M.S. Khattak, Advocate‑on‑Record for Petitioners (in Crl. Org. P.No.34 of 2003).

Petitioner in person (in Crl. Org. P.No.2 of 2004).

Khalid Anwar, Senior Advocate Supreme Court with Raja Abdul Ghafoor, Advocate‑on‑Record for Respondents (in all Crl. Org. Petitions).

Date of hearing: 24th February, 2004.

2005 S C M R 248

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Sardar Muhammad Raza Khan, JJ

NIAZ AHMED (deceased) through legal heirs and another‑‑‑Appellants

versus

DEPUTY SETTLEMENT COMMISSIONER LAHORE and others‑‑‑Respondents

Civil Appeals Nos. 1226 and 1227 of 1996, heard on 2nd June, 2004.

(On appeal from the judgment dated 11‑7‑1995 in W.Ps. No. 198‑R and 197‑R of 1990 passed by the Lahore High Court, Lahore).

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

‑‑‑‑S. 2(6)‑‑‑Constitution of Pakistan (],973); Art.185(3) ‑‑‑ Leave to appeal was granted by Supreme Court to consider; whether the petitioners were entitled to transfer of disputed property to the extent of 25% shares each allotted to their predecessor‑in‑interest.

(b) Displaced Persons (Compensation and Rehabilitation) Act (XXXV1I1 of 1958)‑‑‑

‑‑‑‑S. 2(6)‑‑‑Notification No. F.3 (3)/50‑SI, dated 11‑8‑1960, issued by Central Board of Revenue ‑‑‑Notification.No.2099‑CSC, dated 6‑9‑1960, issued by Chief Settlement Commissioner‑‑‑Allotment of property‑‑­Transfer of possession, claim of‑‑‑Locus standi‑‑‑Concurrent finding of fact by the forums below‑‑‑Disputed shop, was jointly transferred to predecessor‑in‑interest of appellants to the extent of 25 % share of each person and remaining 50% was allotted to the respondents ‑‑‑Predecessor-­in‑interest of appellants never came into possession of the shop‑‑­Effect‑‑‑In order to avail the benefit of S.2(6) of Displaced Persons (Compensation and Rehabilitation) Act, 1958, it was essential for the appellants to have initiated or got initiated the ejectment proceedings against the respondents or thereafter against auction purchasers for their benefit‑‑‑Respondents got the shop in dispute transferred through Permanent Transfer Order but the appellants did not challenge the transfer orders in Constitutional petitions filed by them, when they could have got the Constitutional petitions amended by seeking further relief challenging the transfer order of disputed shop‑‑‑Appellants having not challenged the transfer order in respect of shop in dispute, and such order having attained finality, appellants did not have any locus standi to file the present appeal‑‑‑Appellants having been found to be not in possession by all the Settlement Authorities, they could not be held to be entitled to the transfer of the property in dispute‑‑‑There being neither misreading or non‑reading of finding of fact regarding transfer of possession of disputed shop to the predecessor‑in‑interest of appellants, appeal was dismissed.

Imam Din and another v. Mir Hameed Hussain, Deputy Settlement Commissioner, Montogomery and others PLD 1967 Lah. 419; Hamidullah and another v. Rai Khurshid Ahmad Khan and others PLD 1958 SC 516; Fatehyab Khan and others v. Mst. Amtul Hafeez and others PLD 1963 Kar. 953 and Afzal Mirza and others v. Ahmad Saeed Khan and others 1985 SCMR 1138 distinguished.

Allah Ditta v. Barak Ali and 3 others 1992 SCMR 1974; Province of Punjab v. Muhammad Tayyab and others 1989 SCMR 1621; Ghulam Fatima v. Abdul Ghani and another PLD 1967 Lah. 607; Muhammad Abdullah v. Settlement Commissioner, Sargodha 1973 SCMR 402; Muhammad Moosa and others v. Shabbir Ahmad and another 1984 CLC 3227 and Messis Brady & Co. (Pakistan) .Ltd. v. Messrs Sayed Saigol Industries Ltd. 1981 SCMR 494 ref.

Rana M. Sarwar, Advocate Supreme Court for Appellants (in Civil Appeal No. 1226 of 1996).

Gulzarin Kiani, Advocate Supreme Court for Respondent No.8. (in Civil Appeal No. 1226 of 1996).

Malik Muhammad Nawaz, Advocate Supreme Court for Respondent No.9(a) (in Civil Appeal No. 1226 of 1996).

Ch. Khurshid Ahmad, Advocate Supreme Court and Sh. Salahuddin, Advocate‑on‑Record for Respondents Nos. 10‑12 (in Civil Appeal No. 1226 of 1996).

Nemo for other Respondents (in Civil Appeal No. 1226 of 1996).

Amir Alam Khan, Advocate Supreme Court for Appellant (in Civil Appeal No. 1227 of 1996).

Qamar Zaman, Advocate Supreme Court for Respondents Nos.5‑13 (in Civil Appeal No. 1227 of 1996).

Malik Muhammad Nawaz, Advocate Supreme Court for Respondent No. 16 (in Civil Appeal No. 1227 of 1996).

Gulzarin Kiani, Advocate Supreme Court for Respondent No. 17

(in Civil Appeal No. 1227 of 1996)..

Ch. Khurshid Ahmad, Advocate Supreme Court and Sh. Salahuddin, Advocate‑on‑Record for Respondents .Nos.19 to 21 (in Civil Appeal No. 1227 of 1996).

Nemo for other respondents (in Civil Appeal No. 1227 of 1996).

Dates of hearing: 1st and 2nd June, 2004.

2005 S C M R 263

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Mian Shakirullah Jan and M. Javed Buttar, JJ

MUMTAZ AHMAD CHADHAR‑‑‑Petitioner

versus

Rana NASIR ALI and 3 others‑‑‑Respondents

C.P.L.A. No. 1899 of 2004, decided on 2nd September, 2004.

(On appeal from the judgment, dated 27‑7‑2004 of the Lahore High Court, Lahore, passed in Writ Petition No. 12017 of 2004).

Punjab Local Government (Auctioning of Collection Rights) Rules, 2003‑‑‑

‑‑‑‑Rr. 10, 11, 12 & 13‑‑‑Constitution of Pakistan (1973), Art. 185 (3)‑‑­ Auction of collection rights‑‑‑Highest bid, acceptance of ‑‑‑Procedure‑‑­ Re‑auction‑‑‑Vested right‑‑‑Scope‑‑‑Parties took part in. auction proceedings and respondent was the highest bidder ‑‑‑Nazim being dissatisfied with the auction neither accepted the bid nor the house confirmed it‑‑‑In re‑auction, the petitioner increased the bid and had become the highest bidder‑‑‑Respondent assailed the auction proceedings before High Court in Constitutional petition‑‑‑High Court allowed the petition and directed the Council to award contract in favour of respondent ‑‑‑Validity‑‑‑Nazim of Local Government was not under obligation to automatically accept the highest bid and place it before the Council for its confirmation‑‑‑If there was scope of further enhancement of auction money, Nazim, might not accept the bid and might not place it before the House, under R.11 of Punjab Local Government (Auctioning of Collection Rights) Rules, 2003‑‑‑As there was a scope of further enhancement over the bid of respondent, the concerned authorities correctly did not execute any agreement with the respondent and did not finalize the contract 'with him‑‑‑Neither Nazim accepted the bid of respondent nor the Council confirmed it, therefore, no agreement of awarding of contract was signed between the Council and the respondent‑‑‑No vested right, therefore, accrued in favour of the respondent to invoke the Constitutional jurisdiction‑‑‑Equity also did not lie in favour of respondent because the contract ultimately awarded in favour of the petitioner was of much higher amount as against the lesser amount offered by the respondent‑‑‑High Court if in doubt, in regard to the bona fide and genuineness of proceedings whereby the contract was awarded in favour of the petitioner, ought to have ordered re‑auction instead of directing awarding contract in favour of respondent for lesser amount‑‑‑Order passed by High Court had resulted in a, loss to public exchequer and superior Courts, in suitable cases had interfered to prevent such losses even in those cases where bids had been confirmed‑‑‑Order of High Court was set aside arid Supreme Court directed the Nazim to re‑auction the collection rights‑‑‑Appeal was allowed.

Ibad‑ur‑Rehman Lodhi, Advocate Supreme Court and Ejaz Muhammad Khan Advocate‑on‑Record for Petitioner.

Ch. Naseer Ahmad Bhutta, . Advocate Supreme Court for respondent No.1.

Ms. Afshan Ghazanfar, A.A.‑G. Punjab for Advocate‑General, Punjab

Date of hearing; 2nd September, 2004

2005 S C M R 268

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

BASHIR AHMED and 5 others‑‑‑Petitioners

versus

MUHAMMAD IBRAHIM ‑‑‑Respondent

C.P.L.A. No.2458‑L of 2001, decided on 31st August, 2004.

(On appeal from the judgment of Lahore High Court, Bahawalpur Bench, dated 27‑6‑2001 passed in R.S.A. No.64 of 1984/BWP).

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

‑‑‑Ss. 19‑A, 21(b) & 30‑A‑‑‑West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), S.3‑‑‑Colony land‑‑‑Succession of Muslim tenant‑‑‑Principle‑‑‑Tenant of colony land under S.21 (b) of Colonization of Government Lands (Punjab) Act, 1912, would be deemed to have acquired proprietary rights and in case of a Muslim tenant, his succession would be governed by West Pakistan Muslim Personal Law (Shariat) Application Act, 1962‑‑‑On termination of limited interest, the succession would open and the legal heirs of Muslim tenant would inherit property under West Pakistan Muslim Personal Law (Shariat) Application Act, 1962.

Mst. Began v. Mst. Bai 1983 SCMR 80 rel.

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

‑‑‑‑S. 3‑‑‑Specific Relief Act (I of 1877, S.42‑‑‑Colonization of Government .Lands (Punjab) Act (V of 1912), Ss.19‑A, 30 & 30‑A‑‑­Notification/Memo. No.7099‑60/8456‑S‑VIII, dated 27.12.1960, issued by Board of Revenue‑‑‑Constitution of Pakistan (1973), Art.185 (3)‑‑­Colony land‑‑‑Muslim allottee‑‑‑Inheritance by female legal heirs‑‑­Entitlement‑‑‑Provisions of Colonization of Government Lands (Punjab) Act, 1912, in District Bahawalpur‑‑‑Applicability‑‑‑Original allottee of the suit land did not have any male issue and after his death mutation of inheritance was sanctioned in favour of his daughter and brother‑‑‑After the death of daughter, her successors‑in‑interest / plaintiffs filed suit claiming her mother to be the full owner of the suit land and entitlement of the brother of the original allottee was denied by them‑‑‑Suit and appeal were dismissed by Trial Court and Appellate Court respectively‑‑‑. Concurrent judgments and decree passed by the two Courts were maintained by High Court in exercise of appellate jurisdiction‑‑‑Plea raised by the plaintiffs was that the allotment in favour of defendant was out of the purview of Colonization of Government Lands (Punjab) Act, 1912, therefore, it was not subject to the provisions of West Pakistan :Muslim Personal Law (Shariat) Application Act, 1962‑‑‑Validity‑‑‑There was nothing on record to suggest that either Colonization of Government Lands (Punjab) Act, 1912, was not applicable to the suit land or the allotment of lands which was made before application of Colonization of Government Lands (Punjab) Act, 1912, to district Bahawalpur would not be governed by the same after it was extended to the district‑‑‑Tenancy of the suit land on promulgation of Colonization of Government Lands (Punjab) Act, 1912, was to be governed by the same and original allottee being tenant of the land was entitled to proprietary rights by operation of law and had become allottee under Colonization of Government Lands (Punjab) Act, 1912‑‑‑Suit property was devolved upon the legal heirs of the original allottee under West Pakistan Muslim Personal Laws (Shariat) Application Act, 1962‑‑‑Supreme Court having not found any defect or legal infirmity in the judgment and the High Court having rightly confirmed the concurrent judgments and decrees of two Courts, it was held that the mother of plaintiffs and defendant were entitled to inherit the suit property in equal shares as the legal heirs of the original allottee‑‑‑Findings of three Courts regarding the shares of the parties being not suffering from any misreading or non‑reading of evidence, did riot call for any interference by Supreme Court‑‑‑Leave to appeal was refused.

Amjad Hussain Syed, Advocate Supreme Court for Petitioners.

Nemo for Respondent.

Date of hearing: 31st August, 2004.

2005 S C M R 272

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah, Falak Sher and M. Javed Buttar, JJ

IFTIKHAR AHMAD‑‑‑Petitioner

versus

THE STATE‑‑Respondent

Jail Petition No.280 of 2002, decided on 28th September, 2004.

(On appeal from the judgment/order of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 17‑4‑2002, passed in Criminal Appeal No. 162‑T of 1997 and M. R. No. 242‑T of 1997).

(a) Penal. Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Petition for leave to appeal was barred by 83 days ‑‑‑Condonation of delay‑‑­Petitioner had been awarded death sentence, therefore, Supreme Court condoned the delay.

(b) Penal Code (XLV‑of 1860)‑‑‑

‑‑‑‑Ss. 84 & 302‑‑‑Re‑appraisal of evidence‑‑‑Plea of lunacy‑‑‑Accused was sentenced to death for committing murder of three persons and the sentence was maintained by High Court‑‑‑Plea raised by the, accused was that he was of unsound mind at the time .of commission of offence, therefore, under the provisions of S.84 P.P.C. he had not committed any offence‑‑‑Validity‑‑‑If the accused had taken such ground before Trial Court, the Court could have passed appropriate order by sending him to hospital for proper mental treatment and after recovery, the accused could have been summoned by Trial Court to face trial‑‑‑Even in his statement under S.342 Cr.P.C., no plea of insanity was raised by the accused, if there was any such defence version, it would have been brought on the record through the statements of defence witnesses‑‑­Apart from ocular evidence there was evidence of recovery of hatchet and positive reports of Serologist and Chemical Examiner to show that the hatchet was used for commission of the crime which also fully supported the version of prosecution‑‑‑Trial Court as well as High Court after careful examination of prosecution evidence, awarded normal penalty of death to the accused‑‑‑Judgment was in accordance with law laid down by Supreme Court‑‑‑No misreading or non‑reading of evidence or misconstruction of law was‑ found in the judgment‑‑‑Supreme Court declined to interfere with the sentence and conviction awarded by Trial Court‑‑‑Leave to appeal was refused.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑-S. 302‑‑‑Qatl‑i‑Amd‑‑‑Conviction‑‑‑Principle‑‑‑In the event of proof of charge of Qatl‑i‑Amd normal penalty under the law is death and exceptional circumstances must be shown to exist for taking a lenient view and for the award of lesser penalty.

Arshad Ali Chaudhry, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 28th September, 2004.

2005 S C M R 277

[Shariat Appellate Jurisdiction]

Present: Justice Nazim Hussain Siddiqui, Chairman, Justices Javed Iqbal, Tanvir Ahmed Khan, Dr. Allama Khalid Mahmood and Dr. Rashid Ahmed Jullundhari, Members

WAZIR MUHAMMAD and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent.

Criminal Appeals Nos.53(S) along with 54(S) of 1998, decided on 20th September, 2004.

(On appeal from the judgment, dated 22‑9‑1997 of the Federal Shariat..Court, Bench at Islamabad, passed in Jail Criminal Appeals Nos, 110 and 111/1/1995).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Constitution of Pakistan (1973), Art. 203F(2B)‑‑‑Leave to appeal was granted to accused for reappraisal of the material on record to examine whether the circumstantial evidence relied upon by the prosecution had established the charge against the accused and the same had been proved in accordance with law and if so, whether on the basis of the established circumstances no conclusion other than the guilt of accused could possibility be drawn.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Appraisal of evidence‑‑‑Extra‑judicial confession around which the entire prosecution case revolved was made by the accused while being investigated by the police at the police station before a stock witness which was not worthy of credence and the question of its corroboration was immaterial‑‑‑No direct evidence was available against the accused‑‑‑Even convincing, forthright or reliable circumstantial evidence had not come on record on the basis of which accused could be convicted and sentenced‑‑‑Accused were acquitted in circumstances.

Tahura v. Emperor AIR 1931 Cal. 11; Bir Bahadur v. State AIR 1956.Assam 15; 6 Assam 428; 1956 Cr. L.J 41; Emperor v. Naibullah, AIR 1942 Cal. 524; 43 Cr.LJ 860; In re Kanakasabai, AIR 1940 Mad. 1; 41 ‑ Cr. LJ 369; Shewram v. Emperor AIR 1939 Sind 209; ILR (1940) Kar. 249; 41 Cr.L.J. 28; Gahar Sheikh v. Emperor, AIR 1947 Cal. 345; Zahid Hussain v. Crown 1969 SCMR 388; Muharrimad Nazir v. Mst. Sairan PLD 1970 SC 56; .Fazal Elahi v. Crown PLD 1953‑(FC) 214; Azim v. The State PLD 1965 SC 44; Muhammad Arshad v. The State 1992 SCMR 1187; State v. Habib‑ur‑Rehman PLD 1983 SC 286 and Muhammad Aslam v. Muhammad Zafar PLD 1992 SC 1 ref.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Appreciation of evidence‑‑‑Extra‑judicial confession‑‑­Principle‑‑‑Extra‑judicial confession is a very weak type of evidence and no conviction on it can be awarded without its strong corroboration on the record.

(d) Criminal trial‑‑‑

‑‑‑‑ Evidence‑‑‑ Circumstantial evidence‑‑‑ Principle‑‑‑ Fundamental principle of universal application in cases dependent on circumstantial evidence is that in order to justify the inference of guilt the incriminating fact must be incompatible with the innocence of the accused or the guilt of any other person and incapable of explanation .upon any other reasonable hypothesis than that of his guilt.

Tahura ‑v. Emperor AIR 1931 Cal. 11; Bir Bahadur v. State AIR 1956 Assam 15; 6 Assam 428; 1956 Cr. L.J 41; Emperor v. Naibullah, AIR 1942 Cal. 524; 43 Cr.LJ 860; In re Kanakasabai, AIR 1940 Mad. 1; 41 Cr. LJ 369; Shewram v. Emperor AIR 1939 Sind 209; ILR (1940) Kar. 249; 41 Cr.L.J. 28; Gahar Sheikh v. Emperor, AIR 1947 Cal. 345; Zahid Hussain v. Crown 1969 SCMR 388; Muhammad Nazir v. Mst. Sairan PLD 1970 SC 56; Fazal Elahi v. Crown PLD 1953 (FC) 214 and Azim v. State PLD 1965 SC 44 ref.

(e) Criminal trial‑‑‑

‑‑‑‑ Circumstantial evidence‑‑‑Circumstantial evidence can be relied upon where, either the direct evidence was not forthcoming or had not been found satisfactory.

Muhammad Arshad v. The State 1992 SCMR 1187; State v. Habib‑ur‑Rehman PLD 1983 SC 286 and Muhammad Aslam v. Muhammad Zafar PLD 1992 SC 1 ref.

Sardar Muhammad Ghazi, Advocate Supreme Court for Appellants.

Ainul Haq, Advocate Supreme Court for the State.

Date of hearing: 2nd December, 2003.

2005 S C M R 284

[Shariat Appellate Jurisdiction]

Present: Justice Nazim Hussain Siddiqui, Chairman, Justices Javed Iqbal, Tanvir Ahmed Khan, Dr. Allama Khalid Mahmood and Dr. Rashid Ahmed Jullundhari, Members

MUHAMMAD NAEEM‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos,32(S) and 33(S) of 2001, decided on 16th December, 2003.

(On appeal from the judgment of the Federal Shariat Court of Pakistan, dated 7‑9‑1998 passed in` Criminal Appeals Nos.74/L and 98/L of 1995).

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

‑‑‑‑Ss. 10(3) & 11‑‑‑Constitution of Pakistan (1973), Art.203F(2B)‑‑­Contentions were that the statement of the victim girl in the Court had been wrongly believed by the Courts below as against her statement recorded under S.164, Cr.P.C.; that in case since consent of the victim was established, the offence would fall. under S.10(2) and not under S.10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979; that the statement of the victim was not supported by any evidence and that in view of the age of the accused the offence would fall under S.7 of the said Ordinance which was not punishable beyond five years R.I.‑‑‑Leave to appeal was granted to accused by Supreme Court to consider the said contentions in the light of the evidence and the relevant law.

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

‑‑‑‑Ss. 10(3) & 11‑‑‑Appraisal of evidence‑‑‑Defence plea of denial simplicitor was baseless and not believable in the presence of overwhelming incriminating evidence‑‑‑Exoneration of accused by the police on sketchy reasoning could not be subscribed to, which even otherwise was not binding on the Court‑‑‑Investigation was haphazard and dishonest‑‑‑Police had made every attempt. to distort the facts and shelter the accused‑‑‑Statement of the abductee was fully supported by medical evidence and other prosecution evidence including that of the complainant‑‑‑Statement of the victim girl recorded under S.164, Cr.P.C. was not voluntary‑‑‑Future of the minor girl had been spoiled in a merciless and brutal manner‑‑‑Question of age of accused having been raised for the first time before Supreme Court could not be determined at such stage in the‑ absence of any evidence, which appeared to be false and an afterthought‑‑‑Appeals were dismissed in circumstances.

Ch. Muhammad Abdus Saleem, Senior Advocate Supreme Court for Appellant (in Cr.A. No.32(S) of 2001).

Sh. Mahmood Ahmed, Advocate Supreme Court for Respondent (in tr.A. No.32(S) of 2001).

Muhammad Ilyas Siddiqui, Advocate Supreme Court with Ch. Akhtar Ali, Advocate‑on‑Record for Appellant (in Cr.A. No.33(S) of 2001).

Sh. Mahmood Ahmed, Advocate Supreme Court for the State (in Cr.A. No.33(S) of 2001).

Date of hearing: 16th December, 2003.

2005 S C M R 292

[Shariat Appellate Jurisdiction]

Present: Justice Nazim Hussain Siddiqui, Chairman, Justices Javed 1qbal, Tanvir Ahmed Khan, Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullundhari, Members

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

versus

I. A. SHARWANI and 3 others‑‑‑Respondents

Shariat Appeals Nos.4 to 7 of 1993, decided on 9th January, 2004.

(On appeal from the judgment, dated 14‑10‑1992 of Federal Shariat Court, passed in Shariat Petitions Nos. 63‑I/ 1990, 67/1 of 1990, 18/1 of 1991, 24/1 of 1991).

(a) Civil Service‑‑‑

‑‑‑‑Pension‑‑‑Import, object and scope‑‑‑Right of pension depends upon statutory provisions regulating it, therefore, existence of such right or otherwise is determined primarily from the terms of the statute under which the right or privilege is granted‑‑‑In general sense, the term `Pension' denotes to a grant after release from service‑‑‑Pension is designed to assist the pensioner in providing for his daily wants and it presupposes the continued life after retirement.

New Encyclopedia Britannica, 15th Edn., Vol. 9, p.266 and Maaruful Qur'an by Hazrat Moulana Mufti Muhammad Shafi p.730 ref.

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

‑‑‑‑Ss.19 & 25(2)‑‑‑Constitution of Pakistan (1973), Art. 203‑F‑‑­Pension‑‑‑Old and new pensioners‑‑‑Classification‑‑‑Un‑Islamic and discriminatory‑‑‑Doctrine of Adl and Ehsan‑‑‑Applicability‑‑­Respondents being pensioners assailed classification of pensioners as old pensioners' andnew pensioners' before Federal Shariat Court on the ground ‑of its being against the injunctions of Islam‑‑‑Petition was accepted by Federal Shariat Court and was declared the classification as discriminatory‑‑‑Validity‑‑‑While in service, the employees of any grade all the time did not get the same pay‑‑‑Supreme Court quoted an example of an employee who entered into service earlier and got increments‑‑­Salary of such employee must be more than the employee who joined service in the same grade after a year of the earlier employee‑‑‑While serving in same grade, when employees got different pays then how they could ask for computation of their pension in violation of Pension Rules in force on the retirement of civil servants‑‑‑No contract existed between the pensioners and Government regarding terms/conditions relating to the change of rate of pension in future, as such the distinction between old pensioner' andnew pensioner' could not be undone and each pensioner would get pay according to his entitlement under the law‑‑‑Such distinction could not be termed as discriminatory ‑‑‑Pension was regarded as wealth and inequality in its distribution did not render it un‑Islamic nor different rates could be termed as discriminatory‑‑‑Quantum of pension was determined having taken into consideration; (i) the length of qualifying service (ii) emoluments drawn and (iii) as per rates prescribed, in relevant rules‑‑‑Rules of pension, as applicable to the retired civil servants of Pakistan were not contrary to the concept of Adl andEhsan' as enunciated in Islamic principles‑‑‑Respondent had not assailed any specific provision of law and the judgment passed by Federal Shariat Court was simply of general nature highlighting the grievances of pensioners arising from inflation‑‑‑Liberal interpretation of pension laws/rules rendering them totally ineffective was neither permissible nor possible‑‑‑Ex facie, pension related laws were not inconsistent with or in derogation of fundamental rights‑‑‑On the grounds of personal hardship, inconvenience, disliking and paucity of funds for decent living of a pensioner, the pension related laws, rules and regulations could not be altered, modified or struck down‑‑‑Judgment passed by Federal Shariat Court, was set aside and the petition filed before Federal Shariat Court was dismissed‑‑‑Appeal was allowed.

The Government of N.‑W.F.P. through the Secretary to the Government of N.‑W.F.P. Communications and Works Departments, Peshawar v.. Muhammad Said Khan and another PLD 1973 SC 514; D.S. Nakara anal other v. Union of India AIR 1983 SC 130; Pakistan v. Public-at‑Large PLD 1986 SC 240; Government of N.-W.F.P. v. I.A. Sherwani and another PLD 1994 SC 72 and The Board of Trustees of the Federal Employees Benevolent and another v. Nazir Alam Shah 1996 SCMA 1073. ref.

(c) Civil Service‑‑‑

‑‑‑Pension‑‑‑Revision of pay and scales‑‑‑Effect‑‑‑Pension of retired Government servants is not to be re‑calculated on revision of pay and scale of serving employees‑‑‑Benefit given to a person in employment cannot be claimed by pensioner as a mattes of right.

Makhdoom Ali Khan, Attorney‑General for Pakistan for Appellants.

Respondents in person with Mehr Khan Malik, Advocate‑on-­Record.

Dates of hearing: 1st and 2nd December, 2003.

2005 S C M R 306

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Faqir Muhammad Khokhar, JJ

SHAH JEHAN KHETRAN‑‑‑Petitioner

versus

Sh. MUREED HUSSAIN and others‑‑‑Respondents

C. P.No.1081 of 2004, decided on 11th June, 2004.

(On appeal from judgment, dated 13‑4‑2004 of the‑Lahore High Court, Rawalpindi Bench, passed in Writ Petition No.841 of 2004).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 489‑F‑‑‑Constitution of Pakistan (1973), Arts.185 (3) & 199‑‑­Quashing of FIR ‑‑‑Non‑encashment of bank cheque‑‑‑Plea raised by the accused was that the disputed cheque had inadvertently been issued to the complainant from a different account, whereas he had paid the entire amount‑‑‑Contention of the complainant was that the payment made by the accused was independent transaction while the disputed cheque was issued against another transaction‑‑‑Accused was found innocent by police during investigation and High Court in exercise of Constitutional jurisdiction quashed the FIR‑‑‑Validity‑‑‑High Court had found from record that there was a nomination form issued by the complainant in favour of the accused along with a notice informing the transfer of his membership of Islamabad Stock Exchange in favour of the accused‑‑­Counsel for the accused also issued a notice explaining the circumstances in which the disputed cheque was issued‑‑‑As a result of investigation carried out by police, the accused had been found prima facie innocent‑‑‑ High Court also observed that words one million on the disputed cheque were not pre‑fixed or suffixed by the words U.S. Dollars‑‑‑View taken by High Court was unexceptionable and the judgment did not suffer from any legal infirmity so as to warrant interference by Supreme Court‑‑­Leave to appeal was refused.

M. Bilal, Senior Advocate Supreme Court and Ch. Muhammad Akram, Advocate‑on‑Record for Petitioner.

Malik Rab Nawaz Noon, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Respondent No. 1.

Date of hearing: 11th June, 2004.

2005 S C M R 309

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ

SINDH INDUSTRIAL TRADING ESTATES LTD through Secretary‑‑‑Petitioner

versus

MUHAMMAD ILYAS and another‑‑‑Respondents

Civil Petition No.706‑K of 2003, decided on 21st July, 2004.

(On appeal from the order dated .23‑4‑20.03 passed by High Court of Sindh Division Bench, Karachi in High Court Appeal No.74 of 2002)`

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

‑‑‑‑S. 105‑‑‑Leased property‑‑‑Death of lessee‑‑‑Right of legal heirs to inherit tenancy rights of deceased lessee‑‑‑Scope‑‑‑Tenancy rights were amongst the assets left by deceased lessee‑‑‑Legal heirs would inherit property with whatever rights deceased had therein‑‑‑Legal heirs would inherit defective title, if there was any defect in title of such lessee‑‑­Mere mutating property in the names of legal heirs would not mean that defect, if any, had been wiped off nor same would disentitle lessor to take action, if any, against legal heirs.

(b) Succession Act (XXXIX of 1925)‑‑‑

‑‑‑‑S. 278‑‑‑Civil Procedure Code (V of 1908), O.XX, R.13‑‑­Administration suit‑‑‑Letter of administration, issuance of‑‑‑Effect‑‑­Court would only determine question about assets left by deceased and inherited by legal heirs‑‑‑Court in appropriate cases could undertake to investigate adverse claim between legal heirs in such proceedings‑‑­Issuance of such letter would not amount to conferring title on legal heirs.

S. Ali Sarnad Khan, Senior Advocate Supreme Court for the Petitioner.

Rizwan Ahmad, Advocate Supreme Court for the Respondents.

Date of hearing: 21st July, 2004.

2005 S C M R 311

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Syed Deedar Hussain Shah and Rana Bhagwandas, JJ

GOVERNMENT OF SINDH and another‑‑‑Petitioners

versus, NAZIR AHMED SOOMRO‑‑‑Respondents

C.P.L.A. No.579 of 2003, heard on 20th October, 2003.

Per Rana Bhagwandas, J; Iftikhar Muhammad Chaudhry, J; agreeing; Syed Deedar Hussain Shah, J; contra‑‑‑

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

‑‑‑‑Art. 212(3)‑‑‑Question raised in the petition for leave to appeal having involved. interpretation. of important questions of law, a fit case for grant of leave had been made out‑‑‑Leave to appeal was granted and impugned order of Service Tribunal was suspended accordingly.

Muhammad Hanif v. S.P. Lahore 2003 SCMR 626; Tariq Mahmood v: Auditor General of Pakistan 2003 SCMR 1102; Zarghun Shah v. Surgeon General 1998 SCMR 540; Water and Power Development Authority v. Shan Elahi 1998 SCMR 1890; Jan Muhammad v. General Manager, Karachi Telecommunication 1993 SCMR 1440; Basharat Ali y. Director, Excise and Taxation 1997 SCMR 1543; Abdul Qayyum v. D.G. Project Management Organization 2003 SCMR 1110 and Shamas‑ud‑Din Khawaja v. Government of Pakistan PLD 2003 SC­187 ref.

Per Iftikhar Muhammad Chaudhry, J‑‑‑

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

‑‑‑‑Art. 212(3)‑‑‑‑Civil service‑‑‑Absence from duty‑‑‑Grant of leave‑‑­Employee had admitted his absence from duty on account of his illness, but he failed to substantiate same by producing .convincing evidence‑‑­Mere submission of application for leave by an employee to his department would not mean that leave had been granted in his favour‑‑­Employee was duty bound to inquire from the department himself about fate of his request for grant of leave‑‑‑If it had come to the knowledge of employer that leave had not been granted‑‑‑It was his duty to attend the office but he obtained 3 days casual leave and left the country‑‑­Contentions raised by Government needing detailed consideration, leave to appeal was granted.

Per Syed Deedar Hussain Shah, J.‑‑‑[Minority view].

Qazi Khalid Ali, Additional Advocate General, Sindh and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for the Petitioners.

Nemo for the State.

Date of hearing: 20th October, 2003.

2005 S C M R 318

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Abdul Hameed Dogar and Faqir Muhammad Khokhar, JJ

ADAMJEE INSURANCE COMPANY LIMITED and others‑‑‑Petitioners

versus

MUSLIM COMMERCIAL BANK LIMITED and others‑‑‑Respondents

Civil Petitions Nos.2437 and 2438 of 2002, decided on 24th March, 2004.

Companies Ordinance (XLVII of 1984)‑‑‑

‑‑‑‑S. 178‑‑‑Banking Companies Ordinance (LVII of 1962) S.23‑‑­Insurance Ordinance (XXXIX of 2000), S.67‑‑‑Specific Relief Act (I of 1877), Ss.42 & 54‑‑‑Civil Procedure Code (V of 1908), O.XXXIX, Rr.l & 2‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Interim injunction, grant of‑‑‑Election of Board of Directors‑‑‑Defendant‑Bank having a share of 29.37 % in plaintiff‑Company was not satisfied with the management of plaintiff‑Company‑‑‑Defendant‑Bank had been making necessary declaration and other reports to Securities and Exchange Commission of Pakistan and to State Bank of Pakistan as required by taw‑‑‑Term of office of the Directors. of plaintiff‑Company had already expired but they continued to occupy their office‑‑‑Defendant‑Bank had participated in meetings of plaintiff‑Company through its nominee without any protest by the plaintiff‑‑‑Company Judge, in suit filed by plaintiff, in exercise of original civil jurisdiction, passed interim injunction restraining the defendants from exercising their rights to seek election for them on the Board of Directors of the plaintiff‑Company‑‑­High Court in exercise of appellate jurisdiction set aside the injunction order‑‑‑Validity‑‑‑Balance of convenience would lie in holding elections of Directors of plaintiff‑Company as required by the provisions of 5.178 of Companies Ordinance, 1984‑‑‑Plaintiff company was found to have sustained huge losses with the result that it had to wind up its business in foreign countries‑‑‑Defendants had validly and lawfully acquired the shares and they could not be restrained from exercising their voting and other rights as shareholders and from taking part in the affairs of the plaintiff‑Company‑‑‑Defendant‑Bank did not have controlling interest in the plaintiff‑Company and it did not have such shareholding which could make it more powerful than all other shareholders, to control the course of general meeting of plaintiff-Company‑‑‑Judgment of High Court .was just and fair which did not suffer from any legal infirmity so as to warrant interference by Supreme Court‑‑‑Order passed by High Court under its original jurisdiction did not take the correct view of the matter and had resulted in usurpation of the office of Directors of plaintiff­-Company by such persons whose term had already expired thereby depriving the shareholders to exercise their vested rights in accordance with law‑‑‑Plaintiff‑Company had failed to make out a prima facie case in its favour and was not able to satisfy the other essential ingredients such as balance of convenience and irreparable loss so as to entitle them to grant of temporary injunction‑‑‑Leave to appeal was refused.

Union Council, Ali Wahan, Sukkur v. Associated Cement (Pvt.) Limited 1993 SCMR 468; Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457; The President v. Mr. Justice Shaukat Ali PLD 1971 SC 585; Rattan Chand Hira Chand v. Askar Nawaz Jung through L.Rs. and others 1991 (3) SCC 67; Gammon India Ltd`s case (1990) 3 Comp. LJ 89 (C.L.B.); Distilleries Company of Sri Lanka Limited No.110, Norris Canal Road, Colombo v. Ganganath Amaraweera Kariyaawasam and 2 others C. A. L. No. 163 of 2001; Sri Lanka and GAF Corporation v. Paul Milstein and others Lexsee 453 F.2d. 799; Mercantile Traders (Pvt.) Ltd. v. State Bank of Pakistan 2002 SCMR 250; Mian Muhammad Nawaz Sharif v. President of Pakistan and others PL.D 1993 SC 473; American Cynamid Co. v. Ethicon Ltd. (1975) All ER 504; Sui Gas Transmission Company v. Sui Gas Employees Union 1977 SCMR 220 and Mrs. Dino Manekji Chinoy and 8 others v. Muhammad Matin PLD 1983 SC 693 ref.

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, Anwar Mansoor Khan, Advocate Supreme Court, Waqar Rana, Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Petitioners.

Khalid Anwar, Senior Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Respondents Nos. l and 2.

Raja Muhammad Akram, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Respondents Nos.2 and 4.

Date of hearing: 24th March, 2004.

2005 S C M R 328

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

COLLECTOR, CENTRAL EXCISE AND SALES TAX, COLLECTORATE OF ENTRAL EXCISE AND LAND CUSTOMS, KARACHI and another‑‑‑Petitioners

versus

DEWAN TEXTILE MILLS LIMITED and others ‑‑‑Respondents

C.P.L.A. No.495‑K of 2002, decided on 10th February, 2004.

Sales Tax Act (VII of 1990)‑‑‑

‑‑‑‑S. 13‑‑‑S. R. O. 500(1)/(88)‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by the Supreme Court to examine questions as to whether respondent‑Mills were entitled to exemption of Sales tax on import of consignment, despite withdrawal of exemption, in view of the fact that consignment landed at port after super session of S.R.O. 500(1)/88 and whether mills could maintain Constitutional petition before High court without exhausting departmental remedies before Sales Tax hierarchy under provisions of Sales Tax Act, 1990.

Facto Belarus, Tractors Ltd. v. Federation of Pakistan (Sindh Balochistan Law Reports 2001 SC 109 and Pakistan v. Facto Belarus Tractors Ltd. PLD 2000 SC 208, ref.

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

S. Zaki Muhammad, Deputy Attorney‑ General, Pakistan on Court notice.

Afsar Ali Abidi, Advocate Supreme Court and K.A. Wahab, Advocate‑on‑Record for Respondent No. 1.

Nemo for Respondents Nos. 2 and 3.

Date of hearing: 10th February, 2004.

2005 S C M R 330

[Shariat Review Jurisdiction]

Present: Justice Abdul Hameed Dogar, Chairman, Justices Muhammad Nawaz Abbasi, Mian Shakirullah Jan, Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullundhari, Members

Mirza TAHIR HUSSAIN ‑‑‑Petitioner

versus

THE STATE and another‑‑‑Respondents

Criminal Review Petition No.3(S) of 2004, decided on 19th October, 2004.

(On review from the judgment, dated 1‑12‑2003 of this Court passed in Criminal Appeal No.38(S)/1998).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 203‑F & 188‑‑‑Supreme Court Rules, 1980 O.XXVI, R.1‑‑­Review‑ of Supreme Court judgment‑‑‑Assailing of judgment passed by Federal Shariat Court‑‑‑Validity‑‑‑Judgment of Federal Shariat Court was not under review and entire submissions being out of context, could not be taken into consideration‑‑‑All contentions were raised at the time of hearing of main appeal which were elaborately dealt with and discussed in the judgment under review‑‑‑Scope of review being limited did not allow re‑hearing or appreciation of evidence afresh ‑‑‑Review petition was dismissed.

Shariah The Islamic Law; Book of Al‑Ahkam (Judgments) Chapt. 22; Holding Fast to the Quran and the Sunna and The State v. Sohail Ahmad and 4 others PLD 1990 FSC 29 ref.

Dr. Khalid Ranjha, Advocate Supreme Court and for Petitioner.

Malik Rab Nawaz Noon, Advocate Supreme Court for the Complainant.

Date of hearing: 19th October, 2004.

2005 S C M R 332

[Shariat Appellate Jurisdiction]

Present: Justice Abdul Hameed Dogar, Chairman, Justices Muhammad Nawaz Abbasi, Mian Shakirullah Jan,Dr. Allama Khalid Mehmud and Allama Rashid Ahmad Jullundhari, Members

ABDUR RAZAQ‑‑‑Appellant

versus

THE STATE‑‑‑Respondents

Criminal Shariat Appeal No.61 of 2001, decided on 27th Octobef, 2004.

(Or. appeal from judgment, dated 12‑5‑2000 of the Federal Shartat Court passed in Criminal Appeal No.82/K of 1999).

(a) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)‑‑‑.

‑‑‑S. 12‑‑‑Penal Code (XLV of 1860), S.377‑‑‑Constitution of Pakistan (1973), Art. 185 (3)‑‑‑Leave to appeal was granted by Supreme Court to consider; whether the offence would fall under S.12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 or under S.377 P.P.C.

(b) Offence of` Zina (Enforcement of Hudood) Ordinance (VII of 1979)---.

‑‑‑‑S. 12‑‑‑Reappraisal of evidence‑‑‑Unnatural offence‑‑‑Allegation against the accused was that he had committed unnatural offence with a minor girl of 7 years of age‑‑‑Witnesses produced by prosecution had supported the case and Trial Court convicted and sentenced the accused to 25 years of imprisonment and imposed fine‑ ‑‑Conviction and sentence imposed by Trial Court was maintained by Federal Shariat Court‑‑­Validity‑‑‑Accused had committed offence falling within the ambit of S.12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and was rightly convicted and sentenced by both the Courts below‑‑ Judgment passed by Federal Shariat Court was based on proper appreciation of facts and law and did not merit interference‑‑‑Appeal was dismissed.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

Dr. Kazi Khalid Ali, Addl. A.G. Sindh for the State.

Date of hearing : 27th October, 2004.

2005 S C M R 335

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Tassadduq Hussain Jillani, JJ

MUHAMMAD LATIF‑‑‑Petitioner

versus

ASSISTANT CHIEF OF AIR STAFF (PERSONNEL) and others‑‑‑Respondents

Civil Petition No. 1624 of 2004, decided on 3rd November, 2004.

(On appeal from judgment of the Federal Service Tribunal, Islamabad, dated 15‑5‑2004 passed in Appeal No.107(R)CS/2003).

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

‑‑‑‑S. 4‑‑‑Appeal‑‑‑Limitation‑‑‑Second departmental appeal ‑‑‑Scope‑‑­Filing of second appeal before departmental authorities cannot extend period prescribed for filing of appeal before Service Tribunal as no second (departmental) appeal has been provided in law‑‑‑Time is to be counted from the date of communication of order of rejection .of first departmental appeal.

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

‑‑‑‑S. 4‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Constitution of Pakistan (1973), Art.212 (3)‑‑‑Appeal‑‑‑Limitation‑‑‑Condonation of delay‑‑­Filing of two departmental appeals‑‑‑Civil servant was compulsorily retired from service and he being aggrieved of the penalty filed departmental appeal and having being unsuccessful, instead of filing appeal before Service Tribunal, preferred second departmental appeal‑‑­Appeal was filed before Service Tribunal against the order passed by the authorities and application under S.5 of Limitation Act, 1908, was also filed for condonation of delay‑‑‑Service Tribunal dismissed the appeal being barred by limitation‑‑‑Plea raised by the civil servant was that Service .Tribunal should not have dismissed the appeal on the point of limitation without dilating upon the merits of the case‑‑‑Validity‑‑‑No illegality had been committed by Service Tribunal by counting time of limitation from the date of communication of order regarding rejection of first appeal‑‑‑Sufficiency of cause for condonation of delay being question of fact was within exclusive jurisdiction of Service Tribunal and no interference could be made without any lawful justification which was lacking in the present case‑‑‑Supreme Court did not agree with the plea raised by the civil servant as the Service Tribunal was fully competent to dismiss the appeal on the ground of limitation‑‑‑Judgment passed by Service Tribunal being well based did not warrant interference by Supreme Court‑‑‑Leave to appeal was refused.

Ali Hasan Rizvi v. Islamic Republic of Pakistan ,1986 SCMR 1086; Muhammad Ramzan Khan v. The Service Tribunal 1976. SCMR 262; Yousaf Hussain Siddiqui v. Additional Settlement and Rehabilitation Commissioner, Peshawar 1976 SCMR 268, Zahida v. Deputy Director 1990 SCMR 1504; WAPDA v. Abdul Rashid Dar 1990 SCMR 1513 and Fazal Elahi Siddiqui v. Pakistan PLD 1990 SC 692 rel.

Petitioner in Person.

Nemo for Respondent.

Date of hearing: 3rd November, 2004.

2005 S C M R 340

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal arid Tassadduq Hussain Jillani, JJ

ARIF‑UR‑REHMAN‑‑‑Petitioner

versus

GOVERNMENT OF N.‑W.F.P. through Secretary Education, N.‑W.F.P. and others‑‑‑Respondents

Civil Petition No.326‑P of 2004, decided on 21st October, 2004.

(On appeal from judgment of the Peshawar High Court, Peshawar, dated 26‑2‑2004 passed in W. P. No. 1260 of 2003).

(a) Prospectus of North‑West Frontier Province University of Engineering and Technology, Peshawar (2003‑2004)‑‑‑

‑‑‑Para. 4.16‑‑‑Constitution of Pakistan (1973), Art. 185 (3)‑‑­Educational institution‑‑‑Admission on reserved seat of Gadoon Amazai area‑‑‑Diploma of Associate Engineering in Electrical Technology equivalent, to F.Sc. examination‑‑‑When the candidate was to get admission in the college in Gadoon Amazai area, the classes for F.Sc. were not operative because of non‑availability of science teachers‑‑‑ . Candidate did Diploma of Associate Engineering in Electrical Technology and applied for admission in Engineering University, on the basis of that Diploma against seat reserved for Gadoon Amazai area‑‑­Admission was refused to the candidate on the ground that he had not clone his F.Sc from the .college in Gadoon Amazai area ‑‑‑Validity‑‑­Eligibility of the candidate to get admission against reserved seat for Gadoon Amazai area could not be questioned because the Diploma of Associate Engineering in Electrical Technology was considered at par with that of Intermediate certificate and the same had been recognized for the purpose of admission in the University of Engineering and Technology, North‑West Frontier Province, Peshawar‑‑‑As the candidate had obtained the Diploma, question of passing intermediate examination did not arise because the candidate was qualified to take admission on the basis of Diploma of Associate Engineering in Electrical Technology‑‑­Candidate .had obtained ‑ Diploma from the Technical Institution situated at a different place for the reason that no Polytechnic Institute was existing in Gadoon Amazai area, therefore, no fault could be attributed to the candidate‑‑‑Even at the relevant time F.Sc. classes were not functional in Gadoon Amazai area due to non‑availability of science teacher‑‑‑Authorities had declined admission to the candidate without having gone through the entire record with diligent application of mind‑‑­Order of authorities refusing admission to the candidate was set aside and the candidate was declared entitled to the admission in the University against the seat reserved for Gadoon Amazai area‑‑‑Appeal was allowed.

(b) Educational Institution‑‑‑

‑‑‑‑ Seats reserved for backward areas‑‑‑Object. scope and purpose‑‑­Object of various provisions as enumerated in prospectus regarding reserved seats meant for backward areas is that the students who had studied in institutions located in such areas with relatively less facilities and cannot compete on open merit may be accommodated‑‑‑Such. allocation of reserve quota cannot be usurped without sufficient lawful justification. [p. 345] B

M. Bilal, Senior Advocate Supreme Court and Syed Rahman, Advocate‑on‑Record (absent) for Petitioner.

S. Mir Muhammad, Advocate‑on‑Record for Respondents.

Date of hearing.: 21st October, 2004.

2005 S C M R 346

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Faqir Muhammad Khokhar, JJ

HASAM‑UL‑HAQ‑‑‑Petitioner

versus

FEDERATION OF PAKISTAN and others‑‑‑Respondents

Civil Misc. Application No‑3198 of 2004 in Constitutional Petition No‑2 of 2004, decided on 10th November, 2004.

(Under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 184(3)‑‑‑Constitutional petition before Supreme Court under Art.184(3) of the Constitution‑‑‑Locus standi to file‑‑‑Constitutional petition under Art. 184(3) of the Constitution had been filed by the petitioner without the instructions and the knowledge of the person concerned‑‑‑Such petition lacked bona fide and locus` standi of the petitioner.

Muhammad Ikram Chaudhry, Advocate Supreme Court with M.S. Khattak, Advocate Supreme Court for Petitioner.

Makhdoom Ali Khan, Attorney‑General for Pakistan for Respondents.

Date of hearing: 10th November, 2004.

2005 S C M R 348

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal, and Tassadduq Hussain Jillani, JJ

SHTAMAND and others‑‑‑Petitioners

versus

ZAHIR SHAH and others‑‑‑Respondents

Civil Petition N0.466‑P of 2004, decided on 21st October, 2004.

(On appeal from the order dated ‑ 11‑5‑2004 of the Peshawar High Court, Peshawar, passed in Civil Revision No.486 of 2004).

Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O. XLI, R.27‑Constitution of Pakistan (1973), Art.185(3)‑‑­Additional evidence‑‑‑Principle‑‑‑Inordinate delay in filing application for additional evidence‑‑‑Filling up the lacunas in evidence‑‑‑Suit was filed on 6.6.1994, and after giving proper opportunity of hearing to plaintiffs and to lead evidence, the suit was dismissed by Trial Court‑‑­During pendency of appeal before Appellate Court, the plaintiffs filed application for additional evidence‑‑‑Document intended to be produced as additional evidence was a registered sale‑deed‑‑‑Appellate Court dismissed the application and revision against the order was also dismissed by High Court‑‑‑Plea raised by the plaintiffs was that the delay per se could not be considered as a convincing ground for rejection of application moved for additional evidence‑‑‑Validity‑‑‑Plaintiffs woke up from a deep slumber after nine years and moved application for additional evidence‑‑‑Only answer given by the plaintiffs to the delayed filing of the application was that same could have been accepted by imposing cost‑‑‑Judgment of Trial Court was indicative of the fact that the sale‑deed intended to be produced as additional evidence had been taken into consideration and was discarded for the reason that it had no nexus with the property in‑question, therefore, sale‑deed whether registered or otherwise had no bearing on the merits of the case‑‑­Plaintiffs wanted to fill in the gaps and lacunas at appellate stage which could not have been done by invocation of the provisions as contained in O.XLI, R.27 C.P.C.‑‑‑Application for additional evidence could not be allowed on flimsy grounds and the Courts below were justified in refusing to allow production of additional evidence at appellate stage in absence of any reasonable justification which was lacking in the case‑‑­No illegality, perversity or infirmity could be pointed out warranting interference in the order being well based‑‑‑Leave to appeal was refused.

Rehmatullah v. Fazal Baqi 1998 SCMR 670; Mad Ajab v. Awal Badshah 1984 SCMR 440; Nazeef v. Abdul Ghaffar PLD 1966 SC 267 and Parsotim Thakur v. Lal Mohar Thakur AIR 1931 PC 143 rel.

Fateh Muhammad Khan; Advocate Supreme Court/Advocate‑on­Record for Petitioners.

Nemo for Respondents. . .

Date of hearing: 21st October, 2004.

2005 S C M R 351

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

Miss BRESHNA HAQ TAREEN‑‑‑Appellant

versus

SELECTION COMMITTEE, BOLAN MEDICAL COLLEGE QUETTA and others‑‑‑Respondents

Civil Appeal No.755 of 2004, decided on 28th September, 2004

(On appeal from the judgment/order dated 7‑6‑2004 passed by High Court of Balochistan, Quetta, in Civil Petition No. 157 of 2004).

Prospectus of Bolan Medical College (2003‑2004)‑‑‑

‑‑‑‑Paras 10 & 39‑‑‑Admission in medical college‑‑‑Reserved seat‑‑­Documents necessary for admission‑‑‑Parties applied for admission against the seats reserved for children of doctors‑-‑Respondent did not attach registration certificate of her father issued by Pakistan Medical and Dental Council at the time of filing her application form‑‑‑Before her selection as student for 1st year M.B.B.S. professional the respondent produced the required certificate and she was granted admission on merits‑‑‑Petitioner being aggrieved assailed the admission of respondent before High Court in Constitutional jurisdiction‑‑‑High Court dismissed the Constitutional petition and maintained the order of selection committee‑‑‑Plea raised by the petitioner was that the application of respondent was incomplete and should not have been considered even‑‑‑­Validity ‑‑‑Producing of registration certificate issued by the Medical Council was not mentioned' in para. 39 of. Prospectus of Bolan Medical College, 2003‑2004‑‑‑If the registration certificate was not provided along with application form, no effect was mentioned in para.10 of Prospectus of Bolan Medical College, 2003‑2004, which dealt with the admissions of children of doctors‑‑‑Registration certificate could have been filed along with the application form but if it had not been filed, then the college administration was also not prohibited to receive the same later on, but before its final. conclusion in respect of grant of admission of the candidate‑‑‑Respondent on producing registration certificate of her father, issued by the Medical Council, had fulfilled the condition for seeking admission in terms of para. 10 of Prospectus of Bolan Medical College, 2003‑2004‑‑‑Supreme Court declined to interfere with the judgment passed by High Court‑‑‑Appeal was dismissed.

Miss Zil‑e‑Huma v. Province of Balochistan through Secretary Health and 2 others C.A. No.721 of 1992 and Gul Mahina v. Selection Committee 1999 YLR 1586 rel.

Hadi Shakeel Ahmed, Advocate Supreme Court and M. Anwar Khan Durrani, Advocate‑on‑Record (absent) for Appellant.

Raja Abdul Ghafoor, Advocate‑on‑Record/Advocate Supreme Court, Sohail Azam, Representative, Bolan Medical College, Quetta for Respondents Nos. l‑3.

Nemo for Respondent No.4. W.N. Kohli, Advocate‑on‑Record (absent).

Date of hearing: 28th September, 2004.

2005 S C M R 357

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Faqir Muhammad Khokhar, JJ

Malik NAVEED AHMED ‑‑‑Petitioner

versus

Mrs. NASREEN HAMEED‑‑‑Respondent

Civil Petition No.554 of 2004 decided on‑4th September, 2004

(On appeal from the judgment dated 17‑2‑2004 of the Lahore High Court. Rawalpindi Bench passed in R.F.A. No.42 of 2000).

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

‑‑‑‑Ss. 106, 112 & II6‑‑‑Civil Procedure Code (V of 19(181. O.XX, R.12‑‑_Constitution of Pakistan (1973). Art.185(3) ‑‑‑ Recovery of' possession and mesne profits‑‑‑Tenant at sufferance‑‑‑Proof‑‑‑Holding over of leased property‑‑‑Default in monthly rent‑‑‑Effect‑‑‑Concurrent findings of facts by the Courts below‑‑‑Suit property was leased out to defendant for a period of two years which period was extended for another two years and the rent was enhanced‑‑‑Defendant agreed to vacate the house on the termination of extended lease period but he did not vacate the house and also defaulted in the payment of telephone charges as well as in monthly rent for four months‑‑‑Trial Court decreed the suit in favour of plaintiff and decree for possession as well as for recovery of defaulted telephone charges and mesne profits at the rate of Rs.40,000 per month was awarded till the delivery of possession‑‑­Judgment and decree passed by Trial Court was maintained by High Court‑‑‑Plea raised by defendant was that neither plaintiff had produced any evidence to prove the actual loss suffered by her on account of holding over the suit property by defendant, nor Trial Court could award mesne profit double the amount of rent agreed between the parties‑‑­Validity‑‑‑Trial Court as well as High Court recorded concurrent findings of fact supportable from evidence that defendant continued in possession of suit property without the consent of plaintiff after determination of lease‑‑‑Defendant was rightly held by the Courts, to be liable to hand over the possession to plaintiff along with mesne profits till vacation of suit property and also recovery of telephone charges‑‑­Lease between the parties was determined by notices thereafter, defendant was not entitled to retain the possession of suit property and was bound in law to deliver the vacant possession of suit property to plaintiff forthwith‑‑‑As defendant failed to make payment of monthly rent for four months, therefore, there was no implied renewal of lease of suit property or that it was a case of holding over by defendant‑‑‑Even otherwise, defendant did not make a specific plea in his written statement as to further extension of lease or holding over within the meaning of S.116, Transfer of Property Act, 1882‑‑‑Trial Court as well as High Court were correct in treating defendant to be a tenant at sufferance and not by holding over within the meaning of Ss. 112 & 116 of transfer of Property Act, 1882‑‑‑Supreme Court declined to take any exception to the liability of defendant for payment of mesne profits at double the amount of rent for the period he continued to occupy suit property by sufferance after determination of lease‑‑‑Judgment and decree passed in favour, of plaintiff did not suffer from any legal infirmity so as to warrant interference by Supreme Court‑‑‑Leave to .appeal was refused.

Ch. Noor Hussain v. Ch. Allah Bakhsh and others 1984 SCMR 446; Agricultural Development Bank of Pakistan through its Chairman v. Sheikh Siraj‑ud‑Din and 2 others 1993 MLD 2381; Haji Yaqoob Khan v. Murree Cantonment Board, Murree 1997 CLC 108; Mst. Noor Sultan v. Messrs Burmah Shell Oil Storage; Distributing Co. (Pak.) Ltd. and another PLD 1968 Kar. 408;, Boman Abadan Irani and others v. Jehangir J. Mobed and others PLD 1967 Kar. 449; Messrs Rahman Cotton Factory v. Messrs Nichimen Co. Ltd. PLD 1976 SC 781; Dawood Hercules Chemicals Limited v. Water and Power Development Authority 1991 CLC Note 269 p.207; Sheikh Liaqat Ali v, Riaz Ahmed C.P.L.A. No. 1322 of 1999; Kirpa Ram Brij Lal v. Municipal Committee, Amritsar and another AIR 1929 Lah. 547; Harry Kempson Gray and another v. Bhagu Mian and others (1929) 57 Indian Appeals 105 PC; Gurudas Kundu Chowdhury and others v. Hamendra Kumar Roy and others AIR 1929 PC 300; Federation of Pakistan through Secretary Ministry of Housing and Works, Islamabad v. Mst. Ismat Qayyum Malik PLD 1994 Lah. 360; Ganga Dutt Murarka v. Kartik Chandra Das and others AIR 1961 SC 1067; Bhawanji Lakhamshi and others v. Himatlal Jamnadas Dani and others AIR 1972 SC 819; Morrison v. Jacobs (1945) 1 KB 577; Sundar Singh and others v. Ram Saran Das AIR 1933 Lah. 61; Ganga Ram v. Mt. Shib Devi (1898) 33 PR 1898; Pirbhu Dial v. Ram Chand (1904) 5 PR 1904; Mian Abdur Rashid v. Province of Punjab PLD 2003 Lah. 389; Shabnum Ashraf v. Muhammad M. Iqbal 2003 YLR 495 and Rure Khan v. Ghulam Muhammad AIR 1924 Lah. 643 ref.

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

‑‑‑‑Art. 185(3)‑‑‑Petition for leave to appeal‑‑‑Concurrent findings of facts by the Courts below‑‑‑Interference‑‑‑Scope‑‑‑Ordinarily, Supreme Court is not expected to substitute findings of fact for those recorded by the Courts of competent jurisdiction.

(c) Landlord and tenant‑‑‑

‑‑‑‑ Tenant at sufferance and tenant at will‑‑‑Distinction‑‑‑Person who enters on land by a lawful title and after same has ended, continues in possession without statutory right and without obtaining consent of the person then entitled to receive rent is said to be a tenant at sufferance as distinct from a tenant at will who is in possession with the landlords' consent.

Halsbury's Law of England. Fourth Edition, Re‑issue, 1994, Vol.27(1) p. 163, para. 176 ref.

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

‑‑‑‑S.1‑‑‑Islamabad Capital Territory‑‑‑Applicability of Transfer of Property Act, 1882‑‑‑Provisions of Transfer of Property Act, 1882, are not applicable to the Islamabad Territory‑‑‑Strict and meticulous adherence to the provisions of Transfer of Property Act, 1882, may not he insisted upon in all cases‑‑‑Principles of equity, justice and good conscience thereof are generally followed.

Barkat Ullah Khan v. Abdul Hamid 1981 SCMR 1200 and Ch. Hamid Ali v. Ch. Rehtnat Ali and 5 others 1993 CLC 1409 ref.

Raja Muhammad Ibrahim Satti, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioner.

Hafiz S.A. Rehman. Senior Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondents.

Date of hearing: 24th September, 2004.

2005 S C M R 364

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J. and Javed lqbal, J

S.A.K. REHMANI‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Petition No.63 of 2004, decided on 8th September, 2004.

(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench. Rawalpindi, dated 14‑1‑2004 passed in Criminal Appeal No. 1‑E of 2002).

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

‑‑‑‑Art. 185‑‑‑Appeal to Supreme Court‑‑‑Concurrent findings of fact as recorded by the Trial Court and High Court could not be reversed on hyper-technical assertions and without any lawful justification.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 78‑‑‑National Accountability Ordinance (XVIII of 1999), Ss.9 & 16‑‑‑Objection as to proof of document‑‑‑Documents exhibited without objection can be taken into consideration and no such objection can be raised in appeal or revision‑‑‑Principles.

In the present case the petitioner had admitted himself in a categoric manner while answering question that the entire evidence presented against him was heard and understood by him. It was never the case of petitioner that any documentary evidence was concealed or suppressed or its contents were based on any particular document which was never brought to his knowledge or copy whereof was not made available.

Documents exhibited without objection can be taken into consideration and no such objection can be raised ire appeal or revision.

Where the objection as to the manner of proof of a document is not taken at the time the document is sought to be proved in the lower Court and the document is freely referred to by the parties before the lower Court, it cannot be raised in. second appeal. Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes to a Court of appeal and then complain for the first time of the mode of proof.

The documents admitted in evidence without raising objection can be considered as a concrete proof of the signature and contents of the documents.

The objection as to the mode of proof of document must be made before the document is marked as exhibit.

No objection whatsoever having been raised either before the Trial Court at appropriate juncture as such the objection qua admissibility of documents could not be raised before Supreme Court in appeal.

Gulzar Hussain v. Abdur Rehman 1985 SCMR 301; Abdullah v. Abdul Karim PLD 1968 SC 140; Dogar Mal v. Sunam Ram 1944 L 58; Ayyavar Thevar v. Secretary of State 1942 M 528; Girindra Chandra Ganguli v. ,Rajendra Nath Chatterjee 1. CWN 530; Dil Muhammad v. Sain Das 1927 L 396; Gopal Das S. Sri Thakurji 1943 PC 83; Yaggana Obanna v. Kutugulla Gangaiah 1945 M 361; Abdul Samad v. Gunendra Krishana Roy 1925 C 452; Muhammad Yousaf Khan v. S.M. Ayub PLD 1972 Pesh. 175; Khizrat Muhammad v. Ghulam Muhammad PLD 1962 Lah. 492 ref.

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

‑‑‑‑S. 342‑‑‑National Accountability Ordinance (XVIII of 1999), Ss‑9 & 16‑‑‑Interpretation, object and scope of S.342, Cr.P.C.‑‑‑Power to examine the accused‑‑‑Non‑compliance of S.342, Cr.P.C.‑‑‑Impact‑‑­Procedural defects and irregularities shall not demolish the prosecution case nor vitiate the trial‑‑‑Accused, in the present ease had been confronted with the entire relevant incriminating material brought against him by the prosecution and no proof of prejudice could be furnished nor it could be pointed out that miscarriage of justice had been done‑‑­Question of any prejudice or miscarriage of justice would not arise in circumstances‑‑‑Principles.

Section 342, Cr.P.C. can be bifurcated into two parts. Subsection (1) of section 342, Cr.P.C. confers discretion to the Court while its second part is mandatory and besides that the section.revolves around the maxim audi alteram partem, i.e. that no one should be condemned unheard. The purpose of this section is that the Court should give an opportunity to the accused to give such explanation as he may consider necessary in regard to the salient points made against him. It is, however, not intended merely for his benefit. It is a part of a system for enabling the Court to discover the truth, and it constantly happens that the accused's explanation, or his failure to explain, is the most incriminating circumstance against him. The result of the examination may certainly benefit the accused if a satisfactory explanation is offered by him; it may, however, be injurious to him if no explanation or a false or unsatisfactory explanation is given.

The provisions as contained in section 342, Cr.P.C. were enacted to safeguard the interest of the accused for the simple reason that prime object of the Section is to enable the accused to explain any circumstances appearing against him in the evidence; the intention of the provision is the furtherance of the ends of justice and to enable the Court to decide the question of the guilt of the accused.

The whole object of enacting this section is that the attention of the accused should be drawn to the specific points in the evidence on which the prosecution claims that the case is made out against the accused, so that he may be able to give such explanation as he desires to give.

Every error or omission amounting to non‑compliance with the provisions of section 342, Cr.P.C. vitiates the trial; such errors fall within the category of curable irregularities and the question whether the trial is vitiated, in each case depends upon the degree of the error and upon the question whether prejudice has been or is likely to have been caused to the accused. Every defect or error in the examination under section 342, Cr.P.C. would not be consequential unless it is shown that prejudice has been caused and further, the nature of prejudice must be stated. There must be proof of prejudice to the accused and unless miscarriage of justice is shown to have occurred, particularly in a case where the accused was represented by counsel, inadequate examination under S.342 cannot be made a ground for setting aside the conviction. Reasonable opportunity must be afforded to the accused while recording his statement under section 342, Cr.P.C. enabling him to explain his position.

The opening words of the section are very important. It is for the purpose of enabling the accused to explain the circumstances appearing in evidence against him' that his examination is needed. Where 'the circumstances appearing in evidence against him' are not put to the accused and his explanation is not taken thereupon, it cannot be said that the purpose of section 342 has been fulfilled. It is not a mere formality, but is, an essential part of the trial that the accused should be given notice of the point or points which he must meet in order to exonerate himself. In order that the accused may explain all the facts appearing in the evidence against him, it is necessary that his attention should be directed to all the vital parts of the evidence against him, specially if he is an ignorant person who cannot be expected to know or understand what, particular parts of the evidence are or are likely to be considered by the Court to be against him.' The Court should not only point out to the accused the circumstances appearing in the evidence which require explanation but it must out of fairness of the accused exercise that power in such a way that the accused may know what points in the opinion of the Court require explanation and failure or refusal on the part of the accused to give the explanation will entitle the Court to draw an inference against him. The wordgenerally' does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the questions should relate to the whole case generally, and should not be limited to any particular part or parts of it. The word `generally' does not mean that the accused cannot be subjected to a detailed examination by the Court. The law intends that the salient points appearing in the evidence against the accused must be pointed out to him in a succinct form and that he should be asked to explain them if he wished to do so.

It could not, however, be overlooked that the real object of section 342 is not to subject the accused to a detailed cross‑examination. It is, as a matter of fact, inviting his attention to the point or points in the evidence which are likely to influence the mind of the Judge in arriving at conclusions adverse to the accused, and before such an adverse inference can be drawn, the accused should be afforded an opportunity to offer an explanation, if he has any.

No proof of prejudice could be furnished nor it could be pointed out that as to how miscarriage of justice has been done. Even otherwise the procedural defects and irregularities shall not demolish the prosecution case nor vitiate the trial. Accused was confronted with the entire relevant incriminating material brought, against him by the prosecution and hence the question of any prejudice or miscarriage of justice does not arise.

PLD 1969 Pesh. 12; 1969 SCMR. 461; PLD 1960 Lah. 822; PLD 1960 Lah. 547; AIR 1962 SC 1229; AIR 1961 SC 175; AIR 1960 Raj. 80; AIR 1954. SC 692; AIR 1956 SC 731; AIR 1954 SC 660; PLD 1956 Lah. 174; PLD 1957 SC (Ind.) 133; ILR (1956) 2 All. 127; 1954 FCR 223; AIR 1961 SC 175; DLR FC 123; DLR FC 139; AIR 1956 SC 536; AIR 1956 SC 241; 21 DLR 377; PLD 1955 Dacca 68; AIR 1961 Cal. 240; Abdul Wahab v. Crown PLD 1955 FC 88; AIR 1940 Nag. 283; 41 Cri.L.Jour. 585; AIR 1957 Mys. 9; ILR 1956 Mys. 114; 1957 Cri.L.Jour. 208; AIR 1936 Pesh. 211; AIR 1937 Pesh. 20; 38 Cri.L.Jour. 387; AIR 1935 Cal. 605; AIR 1936 Oudh 16; 36 Cri.L.Jour. 1303; AIR 1934 Oudh 457; PLD 1967 Dacca 503; PLD 1951 Cal. 14; AIR 1934 All. 693; 35 Cri.L Jour 879; 35 Cri.L.Jour‑ 1417; 2 6 Cri.L.Jour 631; 1969 P.Cr.LJ 259; 20 DLR 666; PLD 1961 Dacca 113; 13 DLR 407; 21 DLR 377; PLD 1952 FC 63 and PLR 1951 W.P. 863 ref.

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

‑‑‑‑Ss. 221, 222, 223, 225, 232, 236 & 237‑‑‑National Accountability Ordinance (XVIII of 1999), Ss.9 & 16‑‑‑Framing of charge ‑‑‑Object‑‑­Contents of charge‑‑‑Error or omission in the charge‑‑‑When material‑‑­Held, it hardly matters as to whether the charge was improper or all the particulars were not mentioned therein because if prejudice has been caused to the accused and the nature of accusation has been mentioned in a categorical manner in the charge eliminating the possibility of any confusion or prejudice‑‑‑Principles.

The whole object of framing a charge is to enable the defence to concentrate its attention on the case that he has to meet, and if the charge is framed in such a vague manner that the necessary ingredients of the offences with which the accused is convicted is not brought out in the charge, then the charge is defective.

In other words it can be said that the main object of framing of charge is to ensure that the accused had sufficient notice of the nature of accusation with which he was charged and secondly to make the Court concerned conscious regarding the real points in issue so that evidence could be confined to such points.

The charge must allege all facts which are essential factors of the offence in question. But no yardstick can be fixed qua the particulars which should be mentioned in the charge as it depends upon circumstances of each case.

Where a person is convicted of an offence and the Appellate Court is of the view that he has been misled in his, defence by the absence of a charge or by an error in the charge, appropriate action can be taken including remand of the case with direction for making suitable amendment in the charge.

Omissions in a charge cannot be regarded as material unless in terms of S.225 it is shown by the accused that he has in fact been misled by such omissions or that there has been a failure of justice as a result of such omissions. Where the accused is not misled, a defect in the‑ charge is not material. Where the accused is prejudiced, the defect is material.

Section 237, Cr.P.C. enables the Court to convict a person of an offence which is disclosed in the evidence and for which he might have been charged under the provisions of section 236, although he was not charged with it.

The case of accused does not fall within the ambit of provisions as contained in section 232, Cr.P.C. as no such complaint was made either by the accused himself or counsel on his behalf before the forums below.

It hardly matters as to whether the charge was improper or all the particulars, were not mentioned therein because no prejudice whatsoever has been caused to the accused and the nature of accusation has been mentioned in a categoric manner in the charge eliminating the possibility of any confusion or prejudice.

Mujeeb‑ur‑Rehman, Advocate Supreme Court and Ch. Akhtar Ali Advocate‑on‑Record for Petitioner.

M. Jafar Hashmi, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Respondent.

Date of hearing: 8th September, 2004.

2005 S C M R 383

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagivandas and Khalil‑ur‑Rehman Ramday, JJ

MUHAMMAD ASHRAF ‑‑‑Appellant

versus

TAHIR alias BILLOO and another‑‑‑Respondents

Criminal Appeal No.305 of 1999, decided on 7th December, 2004.

(On appeal against the judgment, dated 22‑10‑1997 passed by Lahore High Court, Bahawalpur Bench, Bahawalpur passed in Criminal Appeal No.82‑95/BWP).

(a) Penal Code (XLV o6 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Appeal against acquittal‑‑‑Reappraisal of evidence‑‑‑Prosecution had based its case upon ocular evidence; recovery of incriminating articles; medical evidence, circumstantial evidence and motive‑‑‑Evidence furnished by the defence witnesses was not sufficient to outweigh the trustworthy and confidence‑inspiring evidence of the ocular witness and circumstantial evidence produced by the prosecution as well as ocular testimony and the medical evidence furnished by Doctor also fully supported the prosecution witness‑ ‑‑Positive report of Forensic Science Laboratory regarding pistol and the empty recovered from the place of occurrence had also furnished strong corroboration to the version of the prosecution witnesses, as the pellet recovered from the skull of. the deceased had matched with the empty recovered from the place of incident, fired from the pistol, taken into possession by the police‑‑‑Sessions Judge, however, had discarded the recoveries, purely on hyper-technical ground, without examining that the defence had never alleged manipulation in the recovery of these articles, therefore mere delay of 10 days in dispatching the recovered articles to the Forensic Science Laboratory would not be fatal, in view of the peculiar facts and circumstances of the case‑‑‑ Motive had come from the mouth of eye‑witness who had full knowledge about the joint business between the deceased as well as the accused, therefore, if his statement was believed to be correct qua the manner in which the incident had taken place inside the house of accused then same was also to be accepted to prove motive‑‑‑Effect‑‑‑Courts were supposed to take into consideration the overall effect of the prosecution case in order to ascertain as ~ to whether crime had been committed or not and unless the discrepancies, contradictions, etc. had impaired the intrinsic value of the prosecution evidence, the same was not liable to be discarded merely for technical reasons‑‑‑If some delay had occasional in lodging the F.I.R., that would also not be fatal in the circumstances because a young man had been killed in brutal manner and his dead body was found lying in the house to which the complainant party had no access, therefore, if owing to some anguish and shock, some time was consumed in lodging F.I.R., it could not be considered fatal for prosecution‑‑‑Reasons found favour with the Sessions Judge for disbelieving the prosecution evidence were not tenable in the eye of law‑‑‑Material evidence available on record was disbelieved/discarded without assigning any cogent reasons, therefore, Supreme Court was bound to rectify such errors in the interest of justice‑‑‑Independent appreciation of evidence available on record produced by the prosecution as well as defence persuaded the Court to conclude that no other person except the accused was responsible for the commission of murder of the deceased in terms of S.302(b), P.P.C.‑‑‑Appeal against acquittal was allowed by the Supreme Court and judgment of Sessions Judge and the High Court whereby the accused was acquitted of the charge was set aside, and accused was convicted and sentenced for life imprisonment by the Supreme Court.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Appeal against acquittal‑‑‑Sentence‑‑‑Reappraisal of evidence‑‑‑Deceased had remained with the accused from 8 a.m. till evening when the complainant and two other witnesses saw the deceased being murdered by the accused‑‑‑Was not known as to what transpired between accused and deceased just before the occurrence‑‑‑Prosecution, however, could not offer any explanation in this behalf, therefore, sentence of life imprisonment to the accused with direction to pay compensation of Rs:Two lacs to the legal heirs of the deceased in terms of S.544‑A, Cr.P.C. or in default whereof to undergo three years' S.I. with the benefit of S.382‑B, Cr.P.C. would meet the ends of justice.

Sh. Khizar Hayat, Advocate Supreme Court and Mehmood‑ul­Islam, Advocate‑on‑Record (absent) for Appellant.

Raja Abdur Rehman, A.‑A.G. (Punjab), Rao M. Yousaf Khan, Advocate‑on‑Record (absent) and Raja Abdul Ghafoor, Advocate‑on ­Record for Respondents.

Date of hearing: 31st May, 2004.

2005 S C M R 394

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Tassadduq Hussain Jillani and M. Javed Buttar, JJ

NIAZ MUHAMMAD and others ‑‑‑ Petitioners

Versus

ASSISTANT COMMISSIONER/COLLECTOR, QUETTAand others‑‑‑Respondents

Civil Appeal No. 1037 of 1999, decided on 29th November, 2004.

(On appeal from the judgment dated 15‑4‑1997 passed by the High Court of Balochistan Quetta in Civil Revision No.347 of 1996).

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

‑‑‑‑Ss. 28 & 34 [as substituted and omitted respectively by Land Acquisition (Balochistan) (Amendment) Act (XIII of 1985)]‑‑‑Notification under S.4, Land Acquisition Act, 1894 having been issued in the year 1990 and the award having been announced on 26‑11‑1990, the substituted S.28 shall be fully applicable.

Through the Balochistan Amendment, operative with effect from 6‑11‑1985, not only section 28, Land Acquisition Act, 1894 was substituted for Balochistan but another section 34, of the said Act was altogether omitted. In the present case from Balochistan, notification under section 4 of the Land Acquisition Act having been issued in the year 1990 and the award having been announced on 26‑11‑1990, the substituted section 28 shall be fully applicable.

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

‑‑‑‑S. 28 [as substituted by Land Acquisition (Balochistan) (Amendment) Act (XIII of 1985)]‑‑‑Effect of substitution of S.28.

A fleeting glance over sections 28 and 344 of the Land Acquisition Act, 1894 as substituted and omitted respectively by the Land Acquisition (Balochistan) (Amendment) Act, 1985 would show that the Balochistan amendment has brought a few drastic changes, like;

(a) Firstly, in original section 28 the direction to the Collector about payment of interest on excess compensation was discretionary while in the substituted section, the grant of additional amount of 15 per cent is mandatory.

(b) Involvement of Court/Referee Court is apparent in the original section which stands omitted in the substituted one.

(c) In the original section the amount is described as interest on excess compensation while in the substituted section it is described as additional compensation.

(d) In the original section the interest at the specified rate was to be given on' the excess amount i.e. the enhanced amount awarded by the Court (which the Collector ought to have awarded but was not awarded) while, in the substituted section even without the intervention of or directions by the Court, the Collector himself has to award compensation at the rate of 15 per cent per annum on the amount fixed by the Collector on the basis of market value prevailing on the date of notification under section 4 of the Act.

(c) Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑Ss. 28 [as amended by Land Acquisition (Balochistan) (Amendment) Act (XIII of 1985)] & 4‑‑‑Additional compensation, grant of‑‑­Intervention of Court not necessary‑‑‑"Additional Compensation" is a compensation in addition to the actual compensation not to be equated with "interest" and is bound to be granted by the Collector himself with effect from the date of notification under S.4, Land Acquisition Act, 1894 to the date of payment of compensation determined with reference to the market value prevailing at the time of such notification‑‑‑‑Additional amount with specified percentage is to be awarded on the amount of compensation fixed by the Collector in the award with reference to the market value prevailing at the time of notification under S.4 of the Act‑‑­Regardless of any claim made at any stage before any forum„ an owner is entitled to such compensation as of right‑‑‑Claimant is entitled to additional compensation as of right and not as a bounty or favour‑‑­Purpose of S.38, Land Acquisition Act, 1894 (as substituted) is obvious because after the issuance of notification under S.4, the Collector used to abnormally delay the announcement of award and even thereafter never expedited the payment of compensation awarded, S:28 was enacted in order to check such delay‑‑Principles.

The difference, inter alia, between the original and substituted section 28 of Land Acquisition Act, 1894 for Balochistan would clearly indicate that the intervention of Court is not at all necessary for the grant of the additional compensation. This "additional compensation" is a compensation in addition to the actual compensation not to be equated with interest and is bound to be granted by the Collector himself with effect from the date of notification under section 4 of the Act to the date of payment of compensation determined with reference to the market value prevailing at the time of such notification. Thus, a claimant is entitled to as of right and not as a bounty or favour. The purpose of such substitution is obvious because after the issuance of notification under section 4 of the Act, the Collectors used to abnormally delay the announcement of award and even thereafter never expedited the payment of compensation awarded. In order to check this delay section 28 was enacted.

The second important object of substitution is to the effect that in the original section the specified interest was to be levied on the enhanced compensation allowed by the Court whereas the additional amount allowed by the Court with specified percentage in the substituted section is to be awarded on the amount of compensation fixed by the Collector in the award with reference to the market value prevailing at the time of notification under section 4 of the Act.

Under the substituted law in Balochistan the amount so fixed is to be compulsorily fixed and paid by the Collector from the date of notification under section 4 of the Act to the date of payment of compensation, while, in the original section specified interest was to be paid on the excess amount awarded by the Court. The main purpose is to check delayed payment by the Collector who, in turn, is supposed to make payment at the earliest of at least the amount awarded by himself. This is the right of the claimant whether or not claimed in so many words before any forum. It is, therefore, unjustified to hold that the amount could not be granted because it was not claimed at some relevant stage.

In order to check the laxity on part of the Collector in making payment of the compensation amount, the Legislature had provided another check in the shape of section 34 of the Land Acquisition Act. In that section the Collector was made bound to pay the amount of compensation with interest from the time of taking possession to the time of payment or deposit. As substituted section 28 in Balochistan aimed at fully serving the object of section 34, the latter section was altogether omitted through the same Amending Act XIII of 1985 whereby section.28 was substituted. This also indicates that regardless of any claim made at any stage before any forum, an owner is entitled to such compensation as of right.

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

‑‑‑‑S. 28 [as substituted by Land Acquisition (Balochistan) (Amendment) Act (XIII of 1985)]‑‑‑Civil Procedure Code (V of 1908), Ss. 151 & 152‑‑­Constitution of Pakistan (1973), Art.187‑‑‑Additional compensation, grant of‑‑‑Court in order to do complete justice can grant an additional compensation under S.151, C.P.C. but not under S.i52, C.P.C.‑‑­Supreme Court however, could invoke Art.187 of the Constitution in addition to S.151, C.P.C.

Tariq Mehmood, Advocate Supreme Court for Petitioners.

Amanullah Tareen, Assistant Advocate‑General, Balochistan with M.A. Zaidi, Advocate‑on‑Record and Hamid Latif Rana Director, Administration and Finance for Respondents.

Date of hearing: 29th November, 2004.

2005 S C M R 401

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhary and Hamid Ali Mirza, JJ

Mst. ASMA NAZ‑‑‑Petitioner

Versus

MUHAMMAD YOUNAS QURESHI‑‑‑Respondent

Civil Petition No. 59 of 2003, decided on 13th October, 2004.

(On appeal from the judgment/order, dated 25‑10‑2002 passed by Lahore High Court, Lahore in Civil Revision No.536 of 2001).

(a) Islamic Law‑‑‑

‑‑‑‑Parentage‑‑‑Legitimacy and acknowledgment‑‑‑Legitimate or illegitimate status of a person is established in view of the proof of birth but in a case where such proof is not coming forward then on the rule of acknowledgment by an acknowledger, in respect of status of a person, a conclusive presumption .can be drawn that he/she is his/her legitimate child and once such status is confirmed, it cannot be destroyed by any subsequent act of the acknowledger or of anyone claiming through him‑‑‑Document, produced in the present case, led to the conclusion that the acknowledger had accepted the lady to be one of her legal heirs in his legacy, benefit of which would be drawn by the ladies being his daughter, wife and his mother respectively after his death‑‑‑Status of the lady as daughter of the acknowledger thus could not be denied in circumstances.

Mst. Hamida Begum v. Murad Begum and others PI.D 1975 SC 624; Muhammad Allahdad Khan and another v. Muhammad Ismail Khan and others 1888 ILR Vol. X All. 289; Muhammad Azmat Ali Khan v. Lalli Begum and others IALR Vol. IX p.8; and Barkhurdar v. Muhammad Razzaq PLD 1989 SC 749 ref.

(b) Islamic law‑‑‑

‑‑‑‑Parentage‑‑‑Legitimacy and acknowledgment‑‑‑If a man acknowledges another person to be his son and other be nothing, which obviously renders it impossible that such relation should exist between them, the parentage will be established.

Muhammad Azmat Ali Khan v. Lalli Begum and others IALR Vol. IX p.8 ref.

(c) Islamic law‑‑‑

‑‑‑‑Parentage‑‑ Legitimacy and acknowledgment‑‑‑ Inheritance‑‑Acknowledgment and recognition of children by a father as his sons gives them the status of sons, capable of inheriting as legitimate sons‑‑­Such acknowledgement may be express or implied‑‑‑In the latter case the inference from the acts of father must be dependant upon the circumstances of each particular case.

Muhammad Azmat Ali Khan v. Lalli Begum and others IALR Vol. IX p.8; ref.

(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 45 & 64‑‑‑Admission‑‑‑Question of relationship between two persons‑‑‑Any admission which otherwise seems to be wrong would not be considered conclusive proof to draw inference that no such relationship exists between the parties.

Mst. Harnida Begum v. Murad Begum and others PLD 1975 SC 624 and Barkhurdar v. Muhammad Razzaq PLD 1989 SC 749 ref.

Rao Fazal Khan Akhtar, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record (absent) for Petitioner.

Respondent in person

Date of hearing: 13th October, 2004

2005 S C M R 412

[Shariat Appellate Jurisdiction]

Present: Justice Abdul Hameed Dogar, Chairman, Justices Muhammad Nawaz Abbasi, Mian Shakirullak Jan; Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullundhari, Members

HAZOOR BAKHSH‑‑‑Petitioner

Versus

HAQ NAWAZ and others‑‑‑Respondents

Criminal Petition No.31(S) of 2000, decided on 7th October, 2004.

(On appeal from the judgment dated 31‑10‑2000 passed by the Federal Shariat Court in Crl. A. No. 171/L of 1998).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b) & 364‑A‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)‑‑‑Constitution of Pakistan (1973), Art.203‑F‑‑‑Reduction of sentence‑‑‑Validity‑‑‑Trial Court had awarded death sentence to accused on 19‑11‑1998 and the Federal Shariat Court instead of confirming his death sentence, altered the sentence from death to life imprisonment on 31‑10‑2000‑‑‑During pendency of the petition before the Supreme Court, notification, dated 13‑12‑2001 was issued by the Government of Pakistan, granting remission/ commutation of sentences‑‑‑Effect‑‑‑Had the death sentence of accused been confirmed by the Federal Shariat Court even then, in the light of the said Federal Government notification, the same could have been commuted to that of life imprisonment‑‑‑Prayer for enhancement of sentence of accused, in circumstances, could not justifiably be entertained‑‑‑Petition challenging the reduction of sentence was dismissed by the Supreme Court.

Kausar Ali and 3 others v. Muhammad Sabir and 6 others 1990 SCMR 1132; Market Committee v. Town Committee 1992 SCMR 1403; Ghulam Murtaza v. Muhammad Arif alias Bahari and another 1993 SCMR 693; Fateh Shah and 2 others v. The State 1995 SCMR 1316; ­Nazir Ahmad Khan v. Member (Colonies), Board of Revenue, Punjab, Lahore 1991 SCMR 1726 and Zahir Shah v. Muhammad Anwar and another 1991 SCMR 1696 ref.

Syed Riaz‑ul‑Hassan Gilani, Senior Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 7th October, 2004.

2005 S C M R 417

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Javed Iqbal, JJ

ASIM‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Petition No.31‑Q of 2004, decided on 10th November, 2004.

(On appeal from the judgment of the High Court of Balochistan, Quetta, dated 10‑5‑2004 passed in Cr. Appeal No.270 of 2003)

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

‑‑‑‑S. 302(b)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Reappraisal of evidence ‑‑‑Qatal‑i‑Amd‑‑‑ Sentence‑‑‑ Prosecution witness who had furnished trustworthy and confidence‑inspiring evidence being a natural witness of the incident had no animosity with the accused and with a zero possibility of substitution the real accused with the petitioner thereby allowing former to go scot‑free being the murderer of his brother who had been done to death within his sight fully involved him in the commission of offence in his examination‑in‑chief and in cross­ examination; defence had not denied his presence at the spot and itself had admitted that the injured was taken to the hospital by the prosecution witness (complainant) himself; said prosecution witness being the star­ witness had also identified the accused' during the identification parade which was carried out later on by the Magistrate; statement of said prosecution witness had also been corroborated by another prosecution witness because before the incident and after it he had seen the accused having a pistol in his hand, therefore, on the basis of the ocular testimony of prosecution witness which got corroboration from the identification parade as well as from the statement of another prosecution witness on material events, prosecution had successfully established guilt against accused‑‑Assuming that if the medical evidence was contradictory to ocular evidence that would have no bearing on the prosecution case because medical evidence was always considered as confirmatory evidence and if there was contradiction in ocular and medical evidence, former would overweigh the latter as it was not the quantity but the quality of evidence which mattered‑‑‑Non‑production of Fire‑arms Expert Report in respect of crime‑empty and pistol would also cast no reflection on the prosecution case because it otherwise stood proved against the petitioner‑‑Prosecution having established the guilt against the accused beyond‑any doubt and it having come on record that the intention of the convict (petitioner) was to commit Qatl‑i‑Amd of the deceased, he was entitled to normal penalty of death and sentence could not be reduced on any pretext in circumstances.

Muhammad Hanif v. The State. PLD 1993 .SC 895; Dildar Hussain v. Muhammad Afzaal PLD 2004 SC 663; Allah Bakhsh v. Shammi PLD 1980 SC 225 and Muhammad Sharif v. Muhammad Javed P L D 1976 SC 452. ref.

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

‑‑‑‑S. 510‑‑‑Penal Code (XLV of 1860), S.302(b)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Qatl‑i‑Amd‑‑‑ Report of the Forensic Science Laboratory ‑‑‑Incharge of Forensic Science Laboratory, in the present case, declined to examine incriminating articles for the reason that "Bullet Comparison Microscope" was out of order and directed the Police official to approach some other laboratory instead of arranging test of recovered articles himself because .it was his responsibility to have made arrangements, if "Bullet Comparison Microscope" was out of order and due to negligence on the part of laboratory Incharge a strong corroborative evidence had been spoiled‑‑‑Supreme Court observed that it was not known that for' this reason alone in how many, cases such examination was not conducted and if it was so then its ultimate benefit must have been given to the accused persons involved in heinous crimes, resulting in their acquittal as well obviously for sheer departmental' negligence for which responsible officers/officials were bound to account for and Chief Secretary, Inspector‑General of Police, Provincial Government and other concerned officers were directed by the Supreme Court to ensure proper functioning of "Bullet Comparison Microscope" in future without fail.

M. Aslam Chishti Senior Advocate Supreme Court and Mrs. Ashraf Abbas, Advocate‑on‑Record (absent) for Petitioner.

Salahuddin Mengal, A.‑G., Balochistan Akhtar Ali Jhawari, D.I.‑G. Said Abdullah Shah, D.S.P. Crimes, Babar Gul, D.S.P. for Respondent.

Date of hearing: 10th November, 2004.

2005 S C M R 422

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui C.J. Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

ASIF ALI ZARDARI‑Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Interior, Islamabad and another‑‑Respondents

Civil Petition No. 1320 of 2003, decided on 22nd November, 2004.

(On appeal against the order dated 3‑6‑2003 of the Lahore High Court, Rawalpindi Bench passed in W.P. No.430 of 2002).

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑National Accountability Ordinance (XVIII of 1999), Ss.9, 10 & Sch. Art.8‑‑‑Customs Act (IV of 1969), S.32‑‑‑Constitution of Pakistan (1973), Art.185‑‑‑Bail, grant of‑‑‑Charge against accused was that being a member of National Assembly, by misusing his power, position and public authority illegally and fraudulently imported a BMW bullet proof vehicle/car by showing the same an ordinary 1600 horse power car in an other persons name and got the same registered, and as such, by preparing false documents and fabricating the record, he committed an offence of corruption and corrupt practices as defined under S.9, National Accountability Ordinance, 1999 punishable under S.10 of the said Ordinance‑‑‑Accused was further charged for causing a loss of Rs.1,42,06,622 to the national exchequer by evasion of customs duties and taxes alleging that the accused thereby committed an offence of corruption and corrupt practices, punishable under Art.8 of the schedule of the National Accountability Ordinance, 1999‑‑‑Record showed that the original importer of the vehicle was the same person as mentioned on the relevant papers, who transferred said car to another person and latter transferred it to yet another person‑‑‑Record further showed that the original importer, who had imported it had paid customs duty according to law‑‑‑Irrefutable evidence was available to the effect that the accused, at the relevant time, was not in power‑‑‑Nothing concrete had been brought on record to show that the accused had any link with the original importer or for that matter with the other transferees‑‑‑No evidence worth relying upon was available to prove that said car was sent from the accused's house to the garage as alleged‑‑­Neither original importer nor the transferees nor any custom officer nor any Registration Officer had been joined as accused‑‑‑One of the main witnesses of the prosecution, during the trial was declared hostile as he did not support the prosecution‑‑‑No evidence worth‑mentioning was available on record to indicate that customs duty and other charges were paid by the accused‑‑‑Proceedings against the accused in the present matter were initiated when he was already , granted bail/acquitted in other cases registered against him‑‑‑Held, prima facie there was no evidence worth relying and the evidence so collected was not enough to decline bail to accused‑‑‑Intrinsic value of documentary evidence at the present stage could neither be negated, nor minimized, nor said evidence could be ignored‑‑‑Strong case of further enquiry was made out by the accused who was granted bail by the Supreme Court.

Aitezaz Ahsan, Senior Advocate Supreme Court, Dr. Babar Awan, Advocate Supreme Court, Farooq H. Naek, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate‑on‑Record for Petitioner.

Raja Muhammad Ibrahim Satti, Advocate Supreme Court, Abdul Baseer Qureshi, Deputy Prosecutor‑General and M.S. Khattak, Advocate‑on‑Record ‑ for Respondent No. 2.

Date of hearing: 22nd November, 2004.

2005 S C M R 427

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah, Khalil‑ur‑Rehman Ramday and Falak Sher, JJ

Syed HAMID MUKHTAR SHAH Petitioner

Versus

MUHAMMAD AZAM and 2 others‑‑‑Respondents

Criminal Petition No. 489 of 2003, decided on 7th December, 2004.

(On appeal from the judgment dated 8‑10‑2003 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in Criminal Appeal No.210 of 1997).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss.302(b) & 337‑F(ii)‑‑‑Constitution of Pakistan (1973), Art.185‑‑­Conversion of normal penalty of death awarded to‑ accused by the Trial Court into sentence of imprisonment for life by the High Court‑‑­Validity‑‑‑Two persons, in the present case, had been accused of committing murder of the deceased‑‑‑Record showed that the co‑accused was admittedly , empty‑handed at the time of occurrence and . had not been burdened with any injury either to the deceased or even to the complainant of the said occurrence‑‑‑Held, since there was no doubt about the assailant who had fired the fatal shot, therefore, there was no question of any benefit being extended to the accused who stood specifically saddled with the fatal injury‑‑‑Where a fire‑arm was aimed at the chest of the victim and. caused fatal injuries on the said vital area then non‑repetition of the said act was hardly of any consequence in the matter of determining the quantum of punishment deserved by the assailant‑‑‑Supreme Court converted the petition into appeal to the extent of complainant and decision of High Court directing reduction of sentence of death awarded to the accused to a punishment of imprisonment for life was set aside and accused was awarded a sentence of death under S.302(b), P.P.C., as ordered by the Trial Court.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)‑‑‑Murder‑‑‑Sentence‑‑‑Circumstances where normal penalty of death sentence be awarded stated:‑‑‑

Insufficiency of motive or motive being shrouded in mystery could not be considered as circumstances justifying non‑awarding of the normal penalty of death to a murderer or to reduce the sentence of death to a lesser punishment.

Even where the occurrence resulting in a murder had taken place at the spur of the moment and even where only one shot had been fired and same had not been repeated, the only penalty deserved by the killer was the normal punishment of, death prescribed for the said offence.

Inadequacy of weakness of the alleged motive or where motive had not been proved, an assailant if found guilty of causing the murder of another, did not deserve any leniency and. the only punishment awardable in such‑like circumstances would be the sentence of death.

Saeed Akhtar and others v. The State 2000 SCMR 383; Arshad Ali alias Achhu v. The State 2002 SCMR 1806 and Hameed Khan's case 2002 SCMR 1155 ref.

Sardar Muhammad Ishaq Khan, Senior Advocate Supreme Court with Ejaz Muhammad Khan, Advocate‑on‑Record (absent) for Petitioner.

Shaukat Aziz Siddiqui, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate‑on‑Record (absent) for Respondent No.1.

Majeeb‑ur‑Rehman Siddiqui, Advocate Supreme Court with Ch. Akhtar Ali, Advocate‑on‑Record for Respondent No.2.

Date of hearing: 7th December, 2004.

2005 S C M R 431

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah, Sardar Muhammad Raza Khan and M. Javed Buttar, JJ

AKBAR ALI KHAN and others ‑‑‑Appellants

Versus

MUKAMIL SHAH and others‑‑‑Respondents

Civil Appeal No.207 of 2000, decided on 2nd December, 2004.

(On appeal from the judgment, dated 9‑9‑1998 of the Peshawar High Court, Peshawar passed in, Civil Revision No.259 of 1997).

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

‑‑‑‑S. 13‑‑‑Pre‑emption suit ‑‑‑Talb‑i‑Muwathibat is necessary to be mentioned in the pleadings as the said Talb puts a limitation on the prospective pre‑emptor that he must express his intention to pre‑empt immediately and in case of involvement of limitation of any kind he has to specify the date and time of the commencement of limitation or his knowledge, so that the limitation is computed accordingly and secondly for the reason that from the time of making Talb‑i‑Muwathibat, the statutory period of 15 days of performing Talb‑i‑Ishhad had to be computed‑‑‑Where in a suit the details of making Talb‑i‑Muwathibat had riot been given or were suppressed in the plaint; the pre‑emptors would be deemed to have failed to prove the performance of said I alb‑‑‑Courts had correctly dismissed the suit in circumstances‑‑­Principles.

Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 and C.P. No.442‑P/2002 ref.

Noor Muhammad through his legal heirs v. Abdul Ghani and 2 others 2000 SCMR 329 distinguished.

M. Ismail Fehmi, Advocate Supreme Court/Advocate‑on‑Record for Appellants.

Muhammad Aman Khan, Advocate Supreme Court with Syed Safdar Hussain, Advocate‑on‑Record for Respondents.

Date of hearing: 2nd December, 2004.

2005 S C M R 436

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J. and Abdul Hameed Dogar, J

GOVERNMENT OF PAKISTAN through Secretary, Establishment Division, Islamabad and others‑‑‑Petitioners

Versus

MUHAMMAD UMER MORIO‑‑‑Respondent

Civil Petitions Nos.318 and 373‑K of 2002, decided on 1st December, 2004.

(On appeal from the judgment dated 12‑12‑2001 of the Federal Service Tribunal Islamabad passed in Appeal No.24(K)(CS) of 2000).

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

‑‑‑‑R. 4(1)(b)(i)‑‑‑Constitution of Pakistan (1973), Art. 212‑‑­Misconduct‑‑‑Civil Servant, on leave for Hajj, performed Hajj and thereafter, proceeded to Germany and USA; he had not obtained prior permission from the concerned Authority for visiting said countries; he had already obtained visa for the said two countries a year before going to Hajj and thus, he had ample time before proceeding to said countries to inform the Authorities about such visits and circumstances had revealed that he deliberately did not inform the Authorities for the reasons best known to him‑‑‑Effect‑‑‑Such conduct of civil servant was a gross misconduct on his part and even on such charge he could be removed/dismissed from service‑‑‑Department was lenient when it had only reverted him from BS‑19 to BS‑18‑‑‑When ex‑Pakistan leave was granted, an employee could only visit to the country for which said leave was granted; it was not his sweet will to visit other countries‑‑‑Civil servant, in the present case, being a police officer must have shown by his conduct that he belonged to a disciplined force of Pakistan‑‑‑Civil servant was guilty of misconduct as was held by the department‑‑‑Supreme Court converted the petition into appeal and dismissed the same.

(b) Fundamental Rules‑‑‑

‑‑‑‑R.29‑‑‑OM.No.16/18/94‑R.2 dated 9‑9‑1998‑‑‑Constitution of Pakistan (1973), Art.212‑‑‑Scope and requirements of Fundamental Rules, R.29‑‑‑Fundamental Rule, 29 requires that if a Government servant is, on account of misconduct or inefficiency, reduced to a lower stage in his time scale, the authority ordering such reduction shall state the period for which it shall remain effective and whether, on restoration, it shall operate to postpone future increments and if so, to what extent‑‑‑While passing an order imposing a penalty of reduction to a lower post or time scale or to a lower stage in a time scale by the authority, the requirements of FR 29 should be strictly observed‑‑‑Where in a case of misconduct by the civil servant, the authority imposing penalty had failed to specify the period for which such penalty would remain effective, Supreme Court, keeping in view the facts and circumstances of the case, modified the order to the extent that it would remain effective for a period of five years from the date of its passage in the light of FR 29.

Ajmal Shah v. Government of N.‑W.F.P. PLD 1982 Pesh. 165; Asgharuddin v. Ministry of Communication 1989 PLC (C.S.) 134; Abdul Majid v. WAPDA 1989 PLC (C.S.) 469; Muhammad Arshad v. WAPDA 1993 PLC (C.S.) 1082; Zafar Yasin v. Prime Minister of Pakistan 2002 SCMR 775 and Tanvir Ahmed v. Chief Secretary 2004 SCMR 647 ref.

Syed Zaki Muhammad, D.A.‑.G. for Petitioners (in C.P. No.318 of 2002) and for Respondents (in C.P. No.373‑K of 2002).

Raja Haq Nawaz, Advocate Supreme Court and Ms. Wajahat Niaz, Advocate‑on‑Record for Respondents (in C.P. No.318 of 2002) and for Petitioners (in C.P. No.373‑K of 2002).

Date of hearing: 1st December, 2004.

2005 S C M R 442

[Supreme Court of Pakistan]

Pre‑sent: Nazim Hussain Siddiqui, C.J., Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

MUHAMMAD ALAM JAN‑‑‑Petitioner

Versus

GOVERNMENT OF N.‑W.F.P. through Secretary, Home and Tribal Affairs, Peshawar and 3 others‑‑‑Respondents

Civil Petition No.749‑P of 2004, decided on 22nd November, 2004.

(On appeal from the judgment, dated 18‑9‑2004 of the N.‑W.F.P. Service Tribunal, Peshawar, passed in Appeal No.15 of 2004).

North‑West Frontier Province Civil Servants Act (XVIII of 1973)‑‑‑

‑‑‑‑S. 10‑‑‑North‑West Frontier Province Service Tribunals Act (I of 1974), S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Transfer and posting of civil servant‑‑‑Principles‑‑‑Service Tribunal, jurisdiction of‑‑­Civil servant assailed his ‑transfer order before Service Tribunal but his appeal was dismissed‑‑‑Plea raised by the civil servant was that by such transfer he had been disturbed and inconvenience had been caused to him‑‑‑Validity‑‑‑Principles of posting and transfer were based upon the criteria that it was within the domain of Government to utilize services of a civil servant anywhere it deemed fit in public interest‑‑‑Right of posting, under Civil Servants Act, 1973, vested in the exclusive jurisdiction of competent authority‑‑‑Posting could not be challenged unless it was against the law and rules or mala fide‑‑‑Civil servant was transferred on administrative grounds by competent authority within the same office along with other officials, thus question of inconvenience or disturbance did 'not arise‑‑‑Civil servant had already complied with the order of transfer and had relinquished his charge and had assumed the new posting as such his claim had become infructuous‑‑‑Judgment passed by Service Tribunal did not suffer from any legal infirmity which was maintained by Supreme Court‑‑‑Leave to appeal was refused.

Secretary, Education, N.‑W.F.P., Peshawar and 2 others v. Mustamir Khan and another" Civil Petition No.308‑P of 2004 distinguished.

Nazir Hussain (Ex Director Excise and Taxation), Administrator, Auqaf, N.‑W.F.P., Peshawar v. N.‑W.F.P. through the Chief Secretary/Secretary, Services and General Administration Department, Government of N.‑W.F.P., Peshawar and 2 others 1992 SCMR 1843 and Zahid Akhtar v. Government of Punjab through Secretary, Local Government and. Rural Development, Lahore and 2 others PLD 1995 SC 530 ref.

Mian Mohibullah Kakakhel, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 22nd November, 2004.

2005 S C M R 445

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

ASDULLAH MANGI and others‑‑‑Appellants

Versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION and others‑‑‑Respondents

Civil Appeals Nos. 1959 to 1962 of 2001, heard on 1st June, 2004.

(On appeal from the judgment of the High Court of Sindh, at Karachi, dated 19‑7‑2001 passed in C.P. Nos.D‑1587, 1588/97, 801, 1420 and 1534 of 1999).

(a) Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985‑‑‑-

‑‑‑‑Constitution of Pakistan (1973), Arts. 185(3) & 25‑‑‑Non‑induction in service of Flight Stewards on completion of training and getting crew uniform‑‑‑Allegation was that petitioners were fully trained Flight Stewards and they received training at the PIA Training Centre, and that on completion of the training they got PIA crew uniform but were not appointed as Flight Stewards while others who had also got training with them were inducted in service‑‑‑Leave to appeal was granted by the Supreme Court to consider the questions as to whether .the petitioners were discriminated by way of violation of Art.25 of the Constitution; whether the impugned letters/orders of not inducting the petitioners in. service of Corporation were mala fide, illegal and without lawful authority and whether the Corporation violated the order of Supreme Court passed in various petitions by not appointing the petitioners in service:

(b) Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985‑‑‑

‑‑‑‑Constitution of Pakistan (1973), Art.25‑‑‑Contention of the appellants was that they were fully trained Flight Stewards as they had completed the training at the PIA Centre for Flight Stewards and were given crew uniform but had not been inducted in service though others who took training with them had been inducted and thus the appellants had been discriminated against by infringing their Fundamental Right under Art. 25 of the Constitution‑‑‑Validity‑‑‑Perusal of "letter of offer for employment" indicated that it was an "offer" simplicitor which could not be equated to that of "appointment" ‑‑‑Letter of offer reflected that the appellants were advised to report to the Manager Employment of the Corporation for further action‑‑‑Procedural formalities were completed by the said letter and the same had got no concern with actual appointment‑‑‑" Offer for employment" in the Corporation as Trainee Flight Steward was subject to completion of training and Letter of offer by no stretch of imagination could be considered as an appointment letter‑‑‑Appellants were never appointed as Flight Steward but admittedly they were selected as a Trainee Flight Steward on, the basis whereof it could not be inferred that they were in fact appointed as Flight Steward; there was a difference between a "Trainee Flight Steward" and a "Regular Appointee as Flight Steward" and a line of distinction was to be brought between the two‑‑‑Appellants had been informed by means of letter that as a result of review of the relevant record, they could not be inducted as Flight Stewards because their selection was made due to political pressure at the relevant time which was irregular‑‑‑No vested or legal right whatsoever, in circumstances, had accrued in favour of the appellants, hence the question of its infringement did not arise‑‑‑Supreme Court observed that it was an admitted feature of the case that the appellants had undergone selection procedure and also sent for professional training of Flight Steward and were also paid stipend by the Corporation, it would be in the interest of justice, fair play and equity, if the cases of the appellants were considered on humanitarian grounds as fresh candidates subject to completion of all legal formalities‑‑‑Supreme Court, however, pointed out that no action whatsoever was taken against the functionaries of the Corporation by whom selection of the appellants was made and huge amount was spent on their training and for making such an irregular and unlawful exercise, merely on the directions of Prime Minister Secretariat, having no legal sanctity behind it‑‑­Principles.

Abdul Jabbar Memon In re: 1996 SCMR 1349 fol.

Asad Ali v. Federation of Pakistan PLD 1998 SC 161 and Liaquat Hussain v. Federation of Pakistan PLD 1999 SC 504 ref.

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

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court ‑‑‑Scope‑‑­Foundation of an application under Art. 199 of the Constitution is a personal and individual right‑‑‑Principles.

The right which is the foundation of an application under Article 199 of the Constitution is a personal and individual right. The legal right may be a statutory right or a right recognized by the law. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to perform relating to the right. There must not only be a right but a justiciable right in existence, to give jurisdiction to the High Court in‑ the matter. Unless whatever .right, personal or otherwise, on which the application is based is established, no order can be issued under Art. 199.

Muntizma Committee v. Director, K.A. PLD 1992 Kar.54; Mahmoona v. Ilam Din PLD 1984 Lah. 228; Assam Fisheries Farms and Industries Ltd. v. The Development Commissioner Assam and others AIR 1953 Assam 155 and Mehboob. Khan v. Deputy Commissioner Lakhimpur and others AIR 1953 Assam 145 ref.

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

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court-‑‑Scope‑‑‑Civil service‑‑‑Suitability for appointment‑‑‑Assessment‑‑‑Jurisdictional domain of appointing authority‑‑‑Scope‑‑‑Exercise of discretion, whether fair and transparent ‑‑‑Justiciability‑‑‑ Principles‑‑‑Mala fide or colourable action or action taken upon extraneous or irrelevant considerations or upon no ground at all or without proper application of mind of an authority‑‑‑Effect.

Assessment of suitability for appointment being subjective assessment exclusively falls within the jurisdictional domain of appointing authority which cannot be compelled to make any appointment. The exercise of discretion, if it is fair and transparent cannot be justiciable in the absence of any mala fide which though was alleged but could not be substantiated by producing any cogent and concrete evidence.

An action which is mala fide or colourable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considerations is also not action in accordance with law. Therefore, action taken upon no ground at all or without proper application of the mind of an authority would also not qualify as an action in accordance with law and would, therefore, have to be struck down as being taken in an unlawful manner.

The State v. Zia‑ur‑Rehman PLD 1973 SC 49 and Government of West' Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 ref.

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

‑‑‑‑Art.25‑‑‑Equality of citizens‑‑‑Concept.

"Equality of citizens" does not mean that all laws must apply to all the subjects or that all subjects must have the same rights and liabilities. The conception of equality before the law does not involve the idea of absolute equality among human beings which is a physical impossibility. The Article guarantees a similarity of treatment and not identical treatment. The protection of equal laws does not mean that all laws must be uniform: It means that among equals the law should be equal and should be equally administered and that ,the like should be treated alike, and that there should be no denial of any special privilege by reason of birth, creed or the like and also equal subjection of all individuals and classes to the ordinary law of the land.

Gut Khan v. Government of Balochistan PLD 1989 Quetta 8 ref.

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

‑‑‑‑Art. 25‑‑‑Applicability of Art.25 of the Constitution‑‑‑Scope‑‑‑Article 25 of the Constitution would not be applicable to Pakistan International Airlines Corporation since a Corporation being an autonomous corporation cannot be forced to make employment which otherwise is not in the interest of Corporation or has adverse effects on its commercial position.

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

‑‑‑‑Art.25‑‑‑Equality of citizens‑‑‑Discrimination‑‑‑Bias‑‑‑Powers of Court to administer supposed equity‑‑‑Scope‑‑‑Principles.

Discrimination always involves an element of unfairness and bias and it is in that sense that the expression has to be understood. The factum of bias could not be substantiated by any convincing evidence. A Court of Law cannot exercise unfettered or unrestricted powers to administer supposed equity not based on justiciable foundation and it must be satisfied before exercising its power that some illegal wrong has been inflicted or is about to be inflicted on the appellants.

Manjula v. D.P.I. AIR 1952 Orissa 344; Siddiq Ahmad v. Estate Officer, Government of Pakistan PLD 1957 (W.P.) Kar. 887; Jeshingbhai Ishwarlal v. Emperor AIR 37 1950 Born. 363; Bagaram Tuloule v. The State of Bihar AIR 1950 Patna 387; Harnam Singh v. The State of Punjab AIR 1952 Punj. 76 and Badri Prasad v. President, District Board, Mirzapur AIR 1952 All. 681 ref.

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

‑‑‑‑Art.199‑‑‑Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, .1985‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Petitioner before invocation of Constitutional jurisdiction must show that he had a clear legal right not susceptible to any reasonable doubt or controversy‑‑‑Letter. of offer for employment as "Flight Stewards" in the Corporation‑‑‑Question as to whether the training was completed or not, uniforms were provided or not, passing out parade was held or not, applications were moved through back door or not were the questions of fact which could not be determined in Constitutional jurisdiction.

Khairuddin v. Settlement Commissioner 1988 SCMR 988 ref.

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

‑‑‑‑Art.199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Object of proceedings initiated under Art. 199 of the Constitution is the enforcement of a right and not the establishment of legal right and therefore, the right of the incumbent concerned which he seeks to enforce must not only be clear and complete but simplicitor and there must be an actual infringement of the right.

Kandaswamy and others v. The Deputy Registrar of Cooperative ‑Societies, Coimbatore and another AIR 1954 Mad. 348 ref.

(j) Vested right---------

‑‑‑‑Exercise of‑‑‑Scope‑‑‑Vested right is free from contingencies, but not in the sense that it is exercisable anywhere and at any moment‑‑‑There is hardly any right which can be so exercised and there must always be occasions at which and circumstances under which they may be exercised‑‑‑Such rights have peculiar characteristics of their own.

Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue 2002 SCMR 312 ref.

Abdul Mujeeb Pirzada, Senior Advocate Supreme Court with M.S. Khattak, Advocate‑on‑Record for Appellants (in all cases).

Muhammad Yawar Ali, Advocate Supreme Court for Respondents (in all cases).

Date of hearing: 1st June, 2004.

2005 S C M R 464

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Faqir Muhammad Khokhar, JJ

MUHAMMAD WASAY TAREEN‑‑‑Petitioner

Versus

CHIEF JUSTICE OF BALOCHISTAN through Registrar of High Court of Balochistan, Quetta ‑‑‑Respondent

Civil Petition No.828 of 2004, decided on 1st December, 2004.

(On appeal from the judgment, dated 21‑2‑2004 of the Balochistan Subordinate Judiciary Service Tribunal, passed in Service Appeal No.1 of 2000).

(a) Balochistan Civil Servants Act (IX of 1974)‑‑‑

‑‑‑‑S. 2(1)(a)‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Ad hoc appointment‑‑‑Concept‑‑District and Sessions Judge appointed on ad hoc basis could not become permanent incumbents of the office of District and Sessions Judge by efflux of time‑‑‑Principles.

The words "ad hoc appointment" as defined by clause (a) of subsection (1) of section 2 of the Balochistan Civil Servants Act No.IX of 1974, mean the appointment of a, duly qualified person made otherwise than in accordance with prescribed method of recruitment, pending recruitment in accordance with such method. Such an appointment cannot be equated with regular appointment. It is meant for a particular object. The ad hoc appointment by its very definition, is of a qualified person but is not in accordance with rules prescribed for regular appointment for which the recommendation of the Public Service Commission is necessary. There is no rule which can entitle an ad hoc appointee to be confirmed in a vacancy during the subsistence of lien of another person on such vacancy. In some cases, it may continue unless regularized by the competent authority in accordance with law.

By notification in the present case issued by the Government of Balochistan S&GAD the appointment‑ of the petitioner as District and Sessions Judge (BS‑19) was clearly expressed to be on ad hoc, basis for a period of six months or till regular selection was made by the Balochistan Public Service Commission, whichever was earlier. His ad hoc appointment was extended from time to time by notifications issued by the High Court of Balochistan by virtue of the powers delegated by the Government. His last extension of ad hoc appointment was to expire on 11‑8‑1999.

According to the Service Rules the regular appointment against 25 % posts of the District and Sessions Judges were to be made by the initial recruitment on the recommendations of the Balochistan Public Service Commission with association of the Chief Justice. Therefore, it could not be said that the petitioner had become permanent incumbent of the office of District and Sessions Judge by efflux of time.

Ad hoc appointment did not confer on an appointee any right or interest to continuous appointment, seniority or promotion and service of such an appointee could be dispensed with at any moment without assigning any reason.

The ad hoc appointment by its very nature is different from that of appointment on probation.

Even without the issuance of notification the petitioner would have ceased to hold the post of District and Sessions Judge after 11-8‑1999.

Mere continuance of employment of a temporary employee for two years or more in service did not ipso facto convert the appointment into permanent one.

Manager Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678; Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan PLD 1974 SC 393; Mian Muhammad Afzal and others v. Government of the Punjab and others 1982 SCMR 408; Federation of Pakistan and another v. Hashim Shah ,Qureshi 1987 SCMR 156; Mrs. Naila Khalid v. Pakistan through Secretary Defence and others PLD 2003 SC 420; Ghulam Sarwar v. Province of Punjab 1982 SCMR 46; Chief Secretary, Government of the Punjab, Lahore and another v. Abdul Majeed 2001 SCMR 1971; Muhammad Azam Khan and others v. Government of N.‑W.F.P. through Chief Secretary, N.‑W.F.P. Peshawar and 4 others 1998 SCMR 204; Muhammad Azam Ali and 35 others v. Government of the Punjab through Chief Secretary and another 1985 SCMR 1408; Saifuddin v. Secretary to Government of the Punjab and others 1982 SCMR 877; Farida Khanum v Federation of Pakistan through Secretary, Education, Islamabad C.P. No.957 of 1999 and Amjad Ali v. Board of Intermediate and Secondary Education and others 2001 SCMR 12 ref.

Muhammad Siddique Ahmed Khan v. Pakistan Railways 1997 SCMR 1514 distinguished.

(b) Balochistan Subordinate Judiciary Service Tribunal Act (VI of 1989)‑‑‑--

‑‑‑‑Ss. 4 & 3‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Service Tribunal‑‑‑Constitution of Benches‑‑‑Chief Justice of High Court, being Chairman of the Tribunal was empowered to withdraw the case at any stage of hearing of appeal for entrustment to another Bench of the Tribunal‑‑‑No prejudice having been caused by the transfer of the case from one Bench to another, the hypertechnical objection taken by the petitioner to the effect that the judgment was reserved by the Tribunal when the case was ordered to be transferred was overruled.

Section 3(3) of the Balochistan Subordinate Judiciary Service Tribunal Act No.VI of 1989 lays down that the Tribunal consists of a Chairman, being the Chief Justice or Acting Chief Justice of the High Court of Balochistan and two members each of whom is the sitting Judge of the High Court of Balochistan. By virtue of section 4 thereof, the Chairman may, at any stage of hearing of appeal, withdraw any appeal pending before a Bench and may make it over to another Bench. Admittedly, the appeal of the petitioner was pending before a Bench of the Tribunal. Therefore, .the Chief Justice of High Court of Balochistan, being Chairman of the Tribunal, was empowered to withdraw the same for entrustment to another Bench of the Tribunal. Even otherwise, no prejudice was shown to have been caused to anyone by the transfer of the case from one Bench to another. Therefore, the hypertechnical objection taken by the petitioner to the effect that the judgment by the Tribunal was reserved when the case was transferred at a belated stage, was overruled. The impugned judgment of the Tribunal did not suffer from any legal infirmity so as to warrant interference by Supreme Court. Even otherwise case was not fit for grant of leave to appeal.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Petitioner.

Salahuddin Khan Mengal, Advocate‑General, Balochistan and Raja Muhammad Afsar, Advocate Supreme Court for Respondent.

Date of hearing: 1st December, 2004.

2005 S C M R 471

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

GHIASUDDIN and others‑‑Appellants

Versus

GHULAM MOHYUDDIN and others‑‑‑Respondents

Civil Appeal No. 1896 of 1998, decided on 13th May, 2004.

(On appeal from the judgment of the High Court of Balochistan, Quetta, dated 18‑3‑1996 passed in C.P. No.93 of 1995).

(a) Words & Phrases‑‑‑

‑‑"Policy"‑‑‑"Notification"‑‑‑Connotation‑‑‑Policy in fact is a mechanism evolved to face, check and resolve a particular situation whereas the notification is an instrument through which it is enforced‑‑­Competent authority is to choose as to which part of the policy or the entire policy excluding certain principles incorporated therein, is required to be implemented and the discretion so exercised cannot be questioned‑‑‑." Policy" and "Notification" are not interchangeable or synonymous terms having its own peculiar characteristic, import and significance.

(b) Words & Phrases‑‑­‑‑

‑‑ "Policy", "Policy of law" and "public policy" ‑‑‑Meanings.

The word `policy' is defined as meaning a settled or definite course or method adopted by a Government, institution, body or individual.

As applied to a rule of law, `policy' refers to its probable effect, 'tendency, or object, considered with respect to the social or political well‑being of a State.

Policy of the law. The term is difficult to define. It has been considered to refer to the purpose and spirit of the substantive laws of a State, whether such laws be found in the Constitution and statutes or in judicial records. The term has been said to be synonymous with public policy.

The term public policy is perhaps the most expansive and widely comprehensive phrase known to the law. It has been said that the doctrine of public policy originated in England in the early part of the Fifteenth Century, and that the principle of public policy owes its existence to the very sources from which the common law is supplied. The phrase is used in several senses, and it may mean the prevalent notions of justice and general fundamental conceptions of right and wrong and it may mean both. It is, a vague, indefinite, and nebulous term.

It is evident that public policy is a relative term and sometime lacks in precision and oftenly is used indistinctly and there must be pragmatic approach for understanding its real meaning to the light of the circumstances surrounding the, particular transaction. When a policy or direction is given for guidance to the officers of a department without any statutory backing, no claim of vested right can be based on such policy or direction.

Corpus Juris Secundum by Francis, J. Ludes, Vol. LXXII ref.

(c) Martial Law Order [Zone D], No.16‑‑‑

‑‑‑‑Cancellation of allotment of State land‑‑‑Regularization Policy‑‑­Applicability‑‑‑Scope‑‑‑Respondents, in the present case, were in possession of the plot in question since 1951 on which the shop was constructed, which fact was supported by judgment of Civil Court whereby it was held that the construction was made in accordance with the Municipal Code of Building and the Municipal Committee of the city had no right to demolish the same‑‑‑Said judgment was upheld by the District Judge in 1955‑‑‑Registered lease deed was executed m 1976 between the Collector and the respondents and no claim or objection whatsoever was made by the appellants regarding execution of lease deed between the Collector and the respondents for 99 years‑‑‑Appellants woke up from a deep slumber after about four decades probably due to alarming increase, in the potential value of the land and exorbitant rise in the market price but it was too late to launch such a campaign on hyper­technical grounds and wishful thinking‑‑‑Appellants had absolutely no locus, standi to claim for the transfer of plot in question which was already transferred in favour of respondents in 1991 in lieu of Rs.15,00,000 duly received by the Member Board of Revenue on behalf of Government‑‑‑Sufficient evidence had come on record, on the basis whereof it could be inferred safely that the plot in question was leased out/sold infavour of respondents by whom the shop in question was constructed which could not be retained by the appellants merely on tile ground that once upon a time, a representation was made by them to allot the plot in question in their favour which could not be finalized‑‑­Regularization policy by the Government prepared in 1991 which itself had no legal sanctity prior to issuance of notification in 1992, could not be 'invoked as the same was formulated for a group of encroachers and the appellant did not fall in that category‑‑‑Appellants, therefore, had failed to substantiate their claim by adducing any oral/documentary evidence worthy of credence‑‑‑No legal right, in circumstances, ever accrued in favour of appellants and hence the question of its infringement did not arise‑‑‑Principles.

(d) Possession‑‑‑

‑‑‑‑ Concept‑‑‑Juristical point of view‑‑‑" Mediate possession" and "immediate possession" ‑‑‑Distinction illustrated.

Possession originally expresses the simple notion of a physical capacity to deal with a thing as we like to the exclusion of every one else. The primary and main object of ownership is the protection of this physical capacity. If this physical condition had alone to be considered all that could be said upon possession from juristical point of view would be contained in the following sentences:‑

The owner of a thing has the right to possess it. Every one has the same right to whom the owner has given the possession. No one else has that right of possession.

The legal notion of possession however is not confined to this simple physical condition. Possession is treated in law, not only as a physical condition which is protected by ownership but as a right in itself. From possession under certain conditions, important legal consequences are derived; in advanced systems of law the right of possession is frequently separated from the right of ownership. Moreover, the possession with which the law thus deals is not that simple physical condition described above, and to which for the sake of distinction, we may give the name of Detention. It is true that the physical element is never altogether lost sight of; on the contrary, a physical element of some kind or other, is essentially necessary to possession in its widest legal sense.

Upon analysis, therefore, the idea of possession resolves itself into two elements; physical and mental corpus and animus: Possession in any sense of the term must imply, first, some actual power over the object possessed and secondly, some amount of will to avail oneself of that power. The mind must accompany the act, the will must realize or embody itself in an external fact or group of facts.

In law one person may possess a thing for and on account of someone else. In such a case the latter is in possession by the agency 'of him who so holds the thing on his behalf. The possession thus held by one man through another may be termed mediate, while that which is acquired or retained directly or personally may be distinguished as immediate or direct. If I go myself to purchase a book, I acquire direct possession of it; but if I send my servant to buy it for me, I acquire mediate possession of it through him, until he has brought it to me when my possession becomes immediate.

Of mediate possession there are three kinds. The first is that which I acquire through an agent or servant; that is to say, through someone who holds solely on my account and claims no interest of his own. In such a case I undoubtedly acquire or retain possession; as, for example, when I allow my servant to use my tools in his work, or when I send him to buy or borrow a chattel for me, or when I deposit goods with a warehouseman who holds them on my account, or when I send my boots to a shoemaker to be repaired. In all such cases, though the immediate possession is in the servant, warehouseman, or artisan, the mediate possession is in me; for the immediate possession is held on my account. The second kind of mediate possession is that in which the direct possession is in one who holds both on my account and on his own, but who recognizes my superior right to obtain from him the direct possession whenever I choose to demand it. That is to say, it is the case of a borrower or tenant‑at‑will. I do not lose possession of a thing because I have lent it to someone who acknowledges my title to it and is prepared to return it to me on demand, and who in the meantime holds it and looks after it on my behalf. There is no difference in this respect between entrusting a thing to a servant or agent and entrusting it to a borrower. Through the one, as well as through the other, I retain as regards all other persons a due security for the use and enjoyment of my property. I myself possess whatever is possessed for me on those terms by another.

There is yet a third form of mediate possession, respecting which more doubt may exist, but which must be recognized by sound theory as true possession. It is the case in which the immediate possession is in a person who claims it for himself until some time has elapsed or some condition has been fulfilled, but who acknowledges the title of another for whom he holds the thing, and to whom he is prepared to deliver it when his own temporary claim has come to an end: as for example when I lend a chattel to another for a fixed time, or deliver it as a pledge to be returned on the payment of a debt. Even in such .a case I retain possession of the thing, so far as third persons are concerned.

Possession itself is not equated to that of legal right on the basis whereof ownership could be claimed.

Muhammad Rifatullah Alvi v. Imran Ansari PLD 1990 SC 369 ref.

(e) Martial Law Order [Zone D], No.16‑‑‑

‑‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Cancellation of allotment of State land‑‑‑Leave to appeal was granted to consider the questions to determine the rights of the parties in respect of disputed property namely: What was the effect of MLO 16 on the legal character of the lease in favour of the respondents assuming that it had done away with the leasehold rights of the respondents, then in the said event, the further grant of lease or sale of this right was to be determined according to the new policy; what was the legal character of the new policy framed to govern such leases/sales if it was held that the MLO had in fact abolished the leasehold rights of the respondents, then were they entitled to purchase said land from the Government though not being in occupation of the property; that one. of the consequences of MLO was that the Authorities had framed a new policy under which only the occupants, who were in physical possession, were entitled to the lease or sale, that being so, had not a valuable right accrued in favour of the petitioners to claim ,the lease or sale of the disputed property, being in actual physical possession on the basis of the aforesaid policy; and that initially, the disputed land vested in the Municipal Corporation, but subsequently, it became property of the Provincial Government, which sold the same in favour of the respondents, prima facie, the sale being in violation of the policy framed, could not have deprived the petitioners to claim its purchase being in physical possession.

Fakhruddin G. Ebrahim, Senior Advocate Supreme Court, Tariq Mehmood, Advocate Supreme Court, Shakeel Ahmed, Advocate Supreme Court and Mehta W.N. Kohli, Advocate‑on‑Record (absent) for Appellants.

Basharatullah, Senior Advocate Supreme Court and M.K.N. Kohli, Advocate‑on‑Record for Respondents.

Respondent No. 12: Ex parte.

Date of hearing: 13th May, 2004.

2005 S C M R 487

[Supreme Court of Pakistan]

Present Sardar Muhammad Raza Khan, M. Javed Buttar and Tassadduq Hussain, Jillani, JJ

WATER AND POWER DEVELOPMENT AUTHORITY through General Manager and Project Director and another‑‑ ‑Petitioners

Versus

ADMINISTRATOR, DISTRICT COUNCIL, SWABI and 5 others‑‑‑Respondents

Civil Appeal No. 1313 of 1999, decided on 29th November, 2004.

(On appeal from the judgment, dated 9‑9‑1999 passed by the Peshawar High Court, Peshawar in Writ Petition No. 12 of 1999).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts.165 & 165‑A‑‑‑Exemption from taxation‑‑‑Federal Government of Pakistan through WAPDA had executed a project and WAPDA had assigned execution on the spot to the contractor and contractor installed a crushing plant and concrete mixing unit for the production of various materials to be used in construction‑‑‑Contractor, for said purpose quarried stones, gravel etc. from the site within the jurisdiction of District Councils "S" and "H"‑‑‑District Council levied export tax and Educational Cess on the production and transportation of the said material ‑‑‑WAPDA's objection on the levy having been turned down, it directed the contractor to pay export tax as demanded which the contractors started making payment under intimation to WAPDA which, in turn was to reimburse such payment on the basis of written agreement between WAPDA and the contractor‑‑‑Contractor, after having paid such tax for a long time, it was stopped by deriving advantage of some territorial dispute between the two District Councils‑‑‑WAPDA filed Constitutional petition against the imposition of such tax claiming exemption purportedly under Art. 165 & 165‑A of the Constitution, which was dismissed‑‑‑Contention of WAPDA before the Supreme Court was that WAPDA, due to executing a project of and on behalf of the Federal Government, its properties and income etc. was exempt from taxation under Arts.165 & 165‑A of the Constitution‑‑‑Validity‑‑‑Held, appellant could not derive benefit from either Art.165 or from 165‑A of the Constitution‑‑‑Contractor, by no, stretch of imagination or arguments could equate itself with the Federal Government nor it had claimed so, which was proved by its conduct of having paid such tax for a considerably long time, constituting against it estoppel as well‑‑­Reimbursement of amount of tax was a pure and personal contractual liability shouldered by WAPDA itself in view of the agreement‑‑‑Levy of tax being on the contractor, it could not be exempted therefrom‑‑­Whatever WAPDA had undertaken qua the reimbursement thereof was a contractual liability which could not be evaded on the pretext of exemption‑‑‑Lifting of the corporate veil as such was no longer permissible and the distinct juristic personality of the incorporated or statutory body was recognized notwithstanding the control, the destination and the functioning of such bodies.

Daewoo Corporation 2001 SCMR 1012 and Union Council v. Associated Cement 1993 SCMR 468 ref.

Fida Muhammad Khan, Advocate Supreme Court with Ch, Akhtar Ali, Advocate‑on‑Record for Petitioners.

Jehanzeb Rahim, Advocate‑General. N.‑W.F.P., Mr. Masood Kousar, Advocate Supreme Court with Mr. M.S. Khattak, Advocate‑on-­Record for Respondents.

Date of hearing: 29th November, 2004.

2005 S C M R 492

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

GOVERNMENT OF PAKISTAN through Secretary Ministry of Commerce, Pak. Secretariat, Islamabad‑‑‑Petitioner

Versus

Messrs VILLAGE DEVELOPMENT ORGANIZATION, V.P.O. LANDRWAN, DISTRICT LAKI MARWAT through (General Attorney) Sher Adam‑‑‑Respondent

Civil Petition No. 1502 of 2004, decided on 16th December, 2004.

(On appeal from the judgment, dated 31‑3‑2004 of the Peshawar High Court, Peshawar in W.P. No.86 of 2004).

Executive order‑‑‑

‑‑‑‑Retrospectivity‑‑‑Requirement‑‑‑Executive orders or notifications, which confer right and are beneficial, would be given retrospective effect and those which adversely affect or invade upon vested right cannot be applied with retrospective effect‑‑‑Government of Pakistan, in the present case, had accorded permission to export with "no objection certificate" dated 2‑3‑2002 and for the first time on 9‑1‑2004, informed the exporter that Government had taken decision to export specified quantity of the commodity and that too through manufacturers of the commodity only‑‑‑Said order of the Government having adversely affected the vested right of the exporter as such, it would not be appropriate to apply the same with retrospective effect.

Anound Power Generation Limited and others v. Federation of Pakistan and others PLD 2001 SC 340 ref.

Raja Muhammad Irshad, D.A.G. for Petitioner.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Respondent.

Date of hearing: 16th December, 2004.

2005 S C M R 495

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Faqir Muhammad Khokhar and M. Javed Buttar, JJ

UMAR DIN (deceased) through L.Rs. and others‑‑‑Petitioners

Versus

ABDUL RAHIM and others‑‑‑Respondents

Civil Petition No. 1159‑L of 2000, decided on 21st December, 2004.

(On appeal from the judgment, dated 7‑4‑2000 of the Lahore High Court, Multan Bench, passed in R.S.As. Nos.24 and, 31 of 1992).

Punjab Pre‑emption Act (I of 1913)‑‑‑

‑‑‑‑S.15(b)‑‑‑Superior right of pre‑emption ‑‑‑Priority of the right between the claimants must be determined according to the order of succession‑‑­Whole line of heirs of the vendor and not merely the nearest heir at the time of sale, had the right of pre‑emption in respect of agricultural land‑‑‑Principles.

The words "in order of succession in section 15 of the Pre‑ emption Act" would mean that under Islamic law if there is a contest between "sharers" or in a given case some "sharers" or some "residuaries", who, for example, succeed simultaneously and no one excludes the other and each succeeds up to the extent of his share, then as the order of the succession is the same and none succeeds prior and in preference to the other, the suit will fail if the pre‑emptor and the vendee are heirs of the above categories. The right contemplated by section 15(b) of the Act was to vest in persons concerned "in order of succession" which simply means the order in which persons inter' se would be entitled to inherit. Consequently, there is no scope for introducing the concept, if it can be so termed, "propinquity of relationship". The order of succession is to be determined with reference to the Personal Law of the parties and when that has been done the person entitled to succeed in order of succession is the person first entitled to pre‑empt. If the nearest in order of succession does not seek to pre‑empt, then, the person next in succession may do so until all the heirs in succession are exhausted.

The whole line of heirs of the vendor and not merely the nearest heir at the time of sale, had the right of pre‑emption in respect of agricultural land. The priority of the right between the claimants must be determined according to the order of succession.

The vendees, in the present case, being nearer to the vendor in order of succession, possessed a superior right of pre‑emption vis‑a‑vis the pre‑emptor in respect of the sale of the suit‑land. Section 15(b) of the Punjab Pre‑emption Act, 1913, lays down that the right of pre‑emption in respect of agricultural land shall vest in the person, in order of succession, who but for such sale would be entitled, on the death of the vendor to inherit the land or property sold. The pre‑emptors failed to demonstrate as to how their predecessor‑in‑interest, would have been entitled to inherit the suit‑land in preference to the vendees in the event of death of vendor in order of succession.

Mst. Raz Khanum Bibi v. Nazir Ahmad and others 1985 SCMR 1725; Karim Bakhsh and others v. Jehandad Khan and others 74 P.R. 1906 and Sabz Ali Khan v. Khair Muhammad Khan AIR 1922 PC 139 = ILR 3 Lah. 48 ref.

Zafar Iqbal Ch. Advocate Supreme Court for Petitioners.

Ch. Muhammad Yaqoob Sindhu, Advocate Supreme Court for Respondents.

Date of hearing: 21st December, 2004.

2005 S C M R 499

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

TARA CHAND and others‑‑‑Petitioners

Versus

KARACHI WATER AND SEWERAGE BOARD, KARACHI and others‑‑‑Respondents

Civil Review Petition No.259 of 2002, Civil Miscellaneous Applications Nos.874 and 875 of 2001 in Civil Appeal No. 1235 of 2000, decided on 14th December, 2004.

(On review against the judgment of this Court, dated 14‑5‑2002 passed in Civil Appeal No. 1235 of 2000).

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

‑‑‑‑Arts. 185, 188 & 25‑‑‑Supreme Court Rules 1980, O.XXXIII, R.5‑‑­Civil Procedure Code (V of 1908), O.XLI, R.33‑‑‑Review petition‑‑­Civil service‑‑‑Contentions of the petitioner were that neither notice about grant of leave to appeal by the Supreme Court nor that of ex parte order by the Supreme Court was served upon him; that he was one of the petitioners who impugned the departmental orders of retrenchment and termination before the High Court, which were set aside to appeal by the Supreme Court; that the moment he came to know about the decision of the Supreme Court, he had approached the Court and filed Civil Review Petition well within time and that though he was a non‑appealing party in the appeals, yet he was entitled to the same relief on the basis of principle of equality‑‑‑Validity‑‑‑Held, since the services of all such persons were dispensed with by, single order, as such, there was no distinction between their case and that of the appellants and was identical on all fours‑‑‑When Tribunal or Court decides a point of law relating to the terms of service of a civil servant which covered not only the case of civil servants who litigated, but also of other civil servants, who might have not taken any legal proceedings, the dictates of justice and rule of good governance demand that the benefit of the decision be extended to other civil servants, who might not be parties to the litigation instead of compelling them to approach the Tribunal or any other legal forum‑‑­Article 25 of the Constitution was also explicit on the point that all citizens were equal before law and were entitled to equal protection of law.

Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185; Abdul Hameed Nasir and others v. National Bank of Pakistan and others 2003 SCMR 1030; Hakim Muhammad Nabi Khan and 2 others v. Warasatullah through Legal Representatives 1987 SCMR 1698; Province of Punjab through Collector Bahawalpur, District, Bahawalpur and others v. Col. Abdul Majeed and others 1997 SCMR 1692 ref.

(b) Judgment in personam‑‑‑

‑‑‑‑Definition.

A judgment determining the rights of persons inter se in or to any money or property in dispute, but not affecting the status of persons or things or determining any interest in property except between the parties. They include all judgment for money.

Normally a judgment binds only those who are parties to it. Such judgments are known as Judgments in personam.

Judgments in personam or inter parties are those which determine the rights of parties inter se to or in the subject‑matter in dispute, whether it be corporeal property of any kind whatever or a liquidated or un liquidated demand, but do not affect the status of either persons or things, or make any disposition of property or declare or determine any interest in it except as between the parties litigant. They include all judgments which are not judgments in rem.

A judgment in personam determines the rights of the parties inter se to or in the subject‑matter in dispute, whether it be corporeal property of any kind whatever or a liquidated or unliquidated demand, but does not affect the status of either persons or things, or make any disposition of property, or declare or determine any interest in it except as between the parties litigant. Judgments in personam include all judgments which are not judgments in rem, but as many judgments in the latter class deal with the stains of persons and not of things, the description "Judgment utter parties" is preferable to 'Judgment in personam'.

A judgment against a particular person, as distinguished from a judgment against a thing or a right or status.

The Oxford Companion to Law by Dawid M. Walker; K.J. Aiyar's Judicial Dictionary (10th Edition 1988); Words and Phrases legally defined (Vol: 3 I‑N) and Black's Law Dictionary with pronunciations (6th Edition) ref.

(c) Judgment in rem‑‑‑

‑‑‑‑Definition.

A legal determination binding not only the parties but all persons. It applies particularly to judgments in Admiralty, declaring the status of a ship, matrimonial causes, grants of probate and administration and condemnation of goods by a competent Court.

A judgment which gives to the successful party possession or declaration of some definite right which right is available against the whole world.

A judgment in rem may be defined as the judgment of a Court of competent jurisdiction determining the status of a person or thing, or the disposition of a thing (as distinct from the particular interest in it of a party to the litigation). Apart from the application of the term to persons, it must affect the res in the way of condemnation, forfeiture, declaration of status or title or order for sale or transfer.

An adjudication pronounced upon the status of some particular thing or subject‑matter, by a Tribunal, having competent authority is judgment in rem, It is founded on a proceeding instituted against or on something or subject‑matter whose status or condition is to be determined or one brought to enforce a right in the thing itself. It operates upon the property. It is a solemn declaration of the status of some person or thing. It is binding‑ upon all persons insofar as their interests in the property are concerned.

The Oxford Companion to by Dawid M. Walker; K.J. Aiyar's Judicial Dictionary (10th Edition 1988); Words and Phrases legally defined (Vol: 3 I‑N) and Black's Law Dictionary with pronunciations (6th Edition) quoted.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Petitioner (in Civil Review Petition No.259 of 2002).

Ibrar Hussain, Advocate Supreme Court for Respondents (in Civil Review Petition No.259 of 2002).

M. Bilal, Senior Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Applicants (in Civil Miscellaneous Applications Nos.874 and 875 of 2001).

Ibrar Hussain, Advocate Supreme Court for, Respondents Nos. 1‑3 (in Civil Miscellaneous Applications Nos.874 and 875 of 2001).

Raja Abdul Ghafoor, Advocate‑on‑Record for Respondents Nos.4‑5 (in Civil Miscellaneous Applications Nos.874 and 875 of 2001).

Date of hearing: 14th December, 2004.

2005 S C M R 507

[Shariat Appellate Jurisdiction]

Present: Justice Abdul Hameed Dogar Chairman, Justices Muhammad Nawaz Abbas, Mian Shakirullah Jan, Dr. Allama Khalid Mahmud and Allama Rashid Ahmed Jullundhari, Members

MUHAMMAD SAFDAR SATTI and another‑‑‑Appellants

Versus

Mst. AASIA KHATOON and 2 others‑‑‑Respondents

Crl. Shariat Appeal No.5 of 2001, decided on 13th October, 2004.

(On appeal from the judgment and order, dated 11‑2‑1999 of the Federal Shariat Court, Islamabad passed in Criminal Revision No. 11/I of 1998).

(a) Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979)‑‑‑

‑‑‑‑Ss. 7/11/14‑‑‑Constitution of Pakistan (1973), Art.203F(2B)‑‑‑Leave to appeal was granted by Supreme Court to consider, if the charge of Zina was leveled against the wife by her husband along with the divorce, would it attract S.14 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, for undertaking the proceedings of Lian, and if the proceeding of Lian was not applicable in such a situation, could the husband be tried for the offence of Qazf.

(b) Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979)‑‑‑

‑‑‑‑S. 14‑‑‑Lian‑‑‑Application and scope‑‑‑Relationship of husband and wife must exist between spouses while lodging a charge of unchastity in Lian against wife or husband.

Haji Bakhtiar Said Muhammad v. Mst. Dure‑e‑Shahwar and another PLD 1986 FSC 187; Haji Bakhtiar Said Muhammad v. Mst. Dur‑e‑Shahwar Begum and another 1989 SCMR 428; Manzoor Hussain v. Zahoor Ahmed and 4 others 1992 SCMR 1191; Capt. Abdul Ghafoor v. Federation of Pakistan through M/O Law, Justice and Parliamentary Affairs, Islamabad 1992 MLD 2326; Holy Qur'an Part 18 Surah Al‑Noor S.24:6 and Durr‑e‑Mukhtar (Ghayatul Owtar) ref.

(c) Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979)‑‑‑

‑‑‑Ss. 7/11/14‑‑‑Lian proceedings not applicable after dissolution of marriage between the parties‑‑Complaint file by the respondent wife against the appellant under Ss.7/11 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, was pending before Trial Court‑‑‑Appellant during trial made an application for initiating proceedings under S.14 of the said Ordinance for Lian against the respondent which was accepted‑‑­Federal Shariat Court in Criminal Revision, however, set aside the said order vide the impugned judgment‑‑‑Validity‑‑‑Federal Shariat Court had rightly observed that marriage between the parties having already been dissolved proceedings under S.14 of the aforesaid Ordinance could not be appropriately taken‑‑‑While lodging a‑charge of Zina against wife or husband, relationship of husband and wife between them must exist‑‑­Impugned judgment having been based on valid and cogent reasons was entirely in consonance with the law laid down by Supreme Court and had no misreading or non‑reading of the facts and law‑‑‑Appeal was dismissed accordingly.

Haji Bakhtiar Said Muhammad v. Mst. Dure‑e‑Shahwar and another PLD 1986 FSC 187; Haji Bakhtiar Said Muhammad v. Mst. Dur‑e‑Shahwar Begum and another 1989 SCMR 428; Manzoor Hussain v. Zahoor Ahmed and 4 others 1992 SCMR 1191; Capt. Abdul Ghafoor v. Federation of Pakistan through M/o Law, Justice and Parliamentary Affairs, Islamabad 1992 MLD 2326; Holy Qur'an Part 18 Surah Al‑Noor S.24:6 and Durr‑e‑Mukhtar (Ghayatul Owtar) ref.

Muhammad Munir Peracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Appellants.

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

Ms. Afshan Ghazanfar, A.A.‑G. Punjab for Respondent No.2.

Date of hearing: 13th October, 2004.

2005 S C M R 512

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Tassadduq Hussain Jillani, JJ

Mst. AMEERAN KHATOON‑‑‑Petitioner

Versus

Mst. SHAMIM AKHTAR and others‑‑‑Respondents

Civil Petition No.2573‑L of 2003, decided on 30th December, 2004.

(On appeal from the order, dated 24‑9‑2003 passed by Lahore High Court, Lahore in Civil Revision No.526 of 2003).

Islamic Law‑‑‑

‑‑‑‑Inheritance‑‑Amount of Benevolent Fund and Group Insurance would devolve upon the heirs, of the deceased being his "Tarka"‑‑‑Mother of the deceased, who was nominee, would not be entitled exclusively to claim such amounts except to the extent of her share as per Shariat with other legal heirs of the deceased.

Wafaqi Hakomat‑e‑Pakistan v. Awamunas PLD 1991 SC 731 and Mst. Amtul Habib and others v. Mst. Musarrat Parveen and others PLD 1974 SC 185 ref.

Ghulam Nabi Bhatti, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Petitioner.

Abdul Rauf Farooqui, Advocate Supreme Court and Ch. M. Anwar Khan, Advocate‑on‑Record (absent) for Respondents.

Date of hearing: 30th December, 2004.

2005 S C M R 515

[Shariat Appellate Jurisdiction]

Present: Justice Abdul Hameed Dogar Chairman, Justices Muhammad Nawaz Abbasi, Mian Shakirullah Jan, Dr. Allama Khalid Mahmud and Allama Rashid Ahmed Jullundhari, Members

ASIF MAHMOOD‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Crl. Shariat Appeal No.37(S) of 1995, decided on 2nd November, 2004.

(On appeal from the judgment, dated 14‑12‑1994 of the Federal Shariat Court passed in Criminal Appeal No. 122/I of 1994, Murder Reference No.4/I of 1994 and Criminal Revision No‑29‑1‑1994).

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

‑‑‑‑S. 364‑‑‑Penal Code (XLV of 1860), Ss.302, 392 & 411­--Appreciation of evidence‑‑‑Confession, when reliable‑‑‑Principles‑‑­Confessional statement for being relied upon should not only be true, voluntary and believable but should be without fear, favour or any inducement.

(b) Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑Ss. 302, 392 & 411‑‑‑Appraisal of evidence‑‑‑Magistrate had not recorded the confessional statement of accused in accordance with the High Court Rules ‑‑‑Voluntariness of the confessional statement had lost its evidentiary value as even per police record accused had appeared voluntarily before the police whereafter his three remands were obtained and after remanding him to jail he was brought back for recording his confessional statement‑‑‑After remanding the accused to judicial custody, apprehension of fear or torture, maltreatment, inducement etc., had in fact vanished and it was quite unbelievable as to what had prompted him to confess its guilt‑‑‑Serious doubt. thus, was open to the confessional statement to this being voluntary genuine, true or believable‑‑‑Recovery of the TV and VCR etc from a trunk kept inside the house jointly owned by the accused, his father, sister and other inmates, could not be said with certainty to have been made from the exclusive knowledge and possession of the accused‑‑‑Recovery of the blood‑stained dagger and blood‑stained clothes after a period of about more than one month from inside the earth had diminished the possibility of presence of blood on them ‑‑‑Last seen evidence could not he believed to be true as the prosecution witness despite being present at the time of recovery or dead body did not disclose the same at that .time but did so after considerable tithe‑‑‑From the number, nature and location of injuries on the person of the deceased, his murder did not seem to be a job of one man‑‑‑Accused was acquitted on benefit of doubt in circumstances.

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

Raja Abdur Rehman, A.A.‑G., Punjab for the State.

Sardar Muhammad Ishaq Khan, Sr. Advocate Supreme Court for Complainant.

Date of hearing: 2nd November, 2004.

2005 S C M R 521

[Supreme Court of Pakistan]

Presort: Iftikhar Muhammad Chaudhry and Tassadduq Hussain Jillani, JJ

SARWAR KHAN‑‑‑Petitioner

Versus

MEHRAN BIBI and others‑‑‑Respondents

Civil Petition No.2521‑L of 2000, decided on 31st December, 2004.

(On appeal from the judgment/order, dated 27‑6‑2000 passed by Lahore High Court; Lahore in Review Application No.22‑C of 2000 in Civil Revision No. 1206 of 1997):

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 185(3)‑‑‑Petition for leave to appeal was hopelessly barred by time‑‑‑No application for condonation of delay had been moved‑‑‑Merely for the reason that a Review Application .was filed, time could not be extended‑‑‑Petition against the original order having become barred by time, no relief could be given to the petitioner in the present proceedings.

Ghulam Hussain v. Ashiq Ali Khan PLD 1980 SC 198 and Sadiq Ali Shah v. Sardar Khalid Umar and others 1982 SCMR 995 ref.

Muhammad Nawaz, Advocate Supreme Court for Petitioner.

S.M. Masood, Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record for Respondents.

Date of hearing: 31st December, 2004.

2005 S C M R 523

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Faqir Muhammad Khokhar, JJ

MAZHAR ALI ‑‑‑ Petitioner

Versus

THE STATE‑‑‑Respondent

Jail Petition No.281 of 2002, decided on 29th November, 2004.

(On appeal from the judgment, dated 30‑4‑2002 in Criminal Appeal. No.133/98 and Criminal Revision No.59/98 passed Lahore High Court, Rawalpindi Bench, Rawalpindi).

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 & 324‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑­witnesses including the injured one were natural witnesses of the incident and they had no reason to falsely implicate the only accused in the commission of such heinous crime of two murders‑‑‑Accused was caught hold of at the spot along with the pistol and its licence‑‑‑Crime empties had been recovered from the place of occurrence‑‑‑Unimpeachable confidence‑inspiring ocular testimony was corroborated by medical evidence as well as by motive which stood proved on record‑‑‑Plea of .grave and sudden provocation raised by accused had rightly been disbelieved by the two Courts below‑‑‑Complainant could not beheld to be a woman of easy virtue simply because she had contracted love marriage and such act could not be termed to be against the principles of Islam‑‑‑No right could be given to a husband to kill or have a suspicion in the girls who would contract marriage with their own will and liking‑‑‑Accused had killed two innocent persons without any cause or mitigating circumstance and no case of lesser punishment was made out in his favours‑‑Conviction and sentences of accused were upheld in circumstances and leave to appeal was refused to him accordingly.

Muhammad Yaqoob v. State PLD 1969 Lah. 548 ref.

(b) Criminal trial‑‑‑

‑‑‑‑Examination of witnesses‑‑‑Prosecution has the prerogative to examine their witnesses who are considered necessary for its case.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 29th November, 2004.

2005 S C M R 530

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Hamid Ali Mirza, JJ

DILSHAD HUSSAIN and another‑‑‑Appellants

Versus

ISLAMIC REPUBLIC OF PAKISTAN through Secretary, Ministry of Labour Manpower and Overseas Pakistanis, Islamabad and another‑‑‑Respondents

Civil Appeal No. 1340 of 1999, decided on 7th January, 2005.

(On appeal from the judgment/order, dated 4‑11‑1998 passed by Lahore High Court, Lahore in I.C.A. No.26 of 1994).

Companies Profits (Workers' Participation) Act (XII of 1968)‑‑‑

‑‑‑‑Ss. 2, 3, 4 & Schedule (Scheme), Paras 4 & 2(7)‑‑‑Amount of profit accrued on the allocated fund had to be paid to the workers of the company, after compliance with the provisions of Companies Profits (Workers Participation) Act, 1968‑‑‑Relief of refund of such amount could not be granted on account of non‑compliance of S.4 of Companies Profits (Workers' Participation) Act, 1968 read with Para 4 of the Scheme given in the Schedule appended to the said Act, wherein it was provided that for the purpose of management of funds, after its establishment by a company, a Board of Trustees had to be constituted and procedure had been prescribed for the purpose of distribution of benefits to the workers.

Civil Appeal No. 1231 of 1998 fol.

National Tanker Company (Pvt.) Ltd. v. Federal Government of Pakistan 1999 YLR 650 ref.

Sadia M Warriach, Advocate Supreme Court and Ejaz Advocate‑on‑Record (absent) for Appellants.

Nasir Saeed Sheikh, Dy. A.‑G. and Ch. Akhtar Ali, Advocate-­on‑Record for Respondent No.1.

Respondent No.2: Ex parte.

Date of hearing; 4th November, 2004.

2005 S C M R 534

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Mian Shakirullah Jan, JJ

Civil Appeal No.366 of 1998

SECRETARY FINANCE and others‑‑‑Appellants

Versus

GHULAM SAFDAR‑‑‑Respondent

(On appeal from judgment of Lahore High Court, Lahore, dated 17‑9‑1997 passed in Writ Petition No. 1102 of 1997).

Civil Appeal No. 892 of 2000

SECRETARY, ESTABLISHMENT DIVISION and others‑‑‑Appellants

Versus

MUHAMMAD ISHAQ‑‑‑Respondent

(On appeal from the judgment of Lahore High Court, Lahore, dated 6‑3‑2000 passed in Writ Petition No.5756 of 1999).

Civil Appeals Nos.366 of 1998 and 892 of 2000, decided on 4th January, 2005, (a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 185, 199 & Part II, Ch. I‑‑‑Constitutional petition‑‑­Fundamental Rights‑‑‑Civil service‑‑‑Mere selection in written examination and interview test would not, by itself, vest the candidate with a Fundamental Right for enforcement as such in the exercise of Constitutional jurisdiction of the High Court‑‑‑Authorities admittedly, had not issued any offer of appointment to the candidates and their appointment was subject to clearance by the Establishment Division under the Centralised System of Recruitment till it was discontinued, which again coincided with the imposition of ban on fresh recruitments, which could not be safely ignored by the Authorities‑‑‑High Court, in circumstances, was not right in overlooking such aspects of the case while issuing a writ of mandamus‑‑‑Principles.

Mere selection in written examination and interview test would not, by itself, vest candidates with a Fundamental Right for enforcement as such in the exercise of Constitutional jurisdiction of the High Court. Admittedly, the authorities had not issued any offer of appointment to the candidates and their appointment was subject to clearance by the Establishment Division under the Centralised System of Recruitment till it was discontinued which again coincided with the imposition of ban on fresh recruitments, which could not be ignored by the authorities. Thus, the High Court was not right in overlooking this aspect of the case while issuing a writ in the nature of mandamus.

In the present case it is hard to accept whether the candidates had a vested legal right for enforcement under Article 199 of the Constitution on the date when they filed the writ; or that the authorities were under a legal duty to issue order of appointment without completing and observing all legal requirements and lastly whether the candidates had no other adequate and legal remedy available under the law. It is equally difficult to subscribe to the view that the authorities in the performance of their statutory duties had refused or omitted to discharge the performance of an act, which the law obliged them to do. Grant of relief in writ jurisdiction, irrespective of its kind, is always discretionary, which is required to be exercised judiciously. The writ is not to issue as a matter of course on sheer technicalities or at the whim of the Court. No hard and fast rule can be laid down for the exercise of discretion by the Court for grant or refusal of the relief in the exercise of extraordinary jurisdiction. In the facts and circumstances of the case, in which the authorities had commenced the process of recruitment, they were within their jurisdiction to recede as no decisive steps were taken towards the logical conclusion of the selection process on account of imposition of general ban on fresh recruitment, which was binding on the authorities being functionaries of State under a duty to meticulously follow and abide by the decisions of the highest body, like the Cabinet.

Position would have been different had the authorities been found to be guilty of treating the candidates with discrimination or withholding their appointment after due approval of the competent authority and observance of all codal formalities. It would have been a case for interference had the authorities been found guilty of pick and choose and discriminating the candidates in the matter of enforcement of their legal right to appointment after final selection and approval of recommendations by the competent authority.

Present was not an appropriate case for the exercise of extraordinary writ jurisdiction in favour of the candidates and it was not incumbent upon the High Court to decide the question of appointment of the candidates to a particular post, which fell within the exclusive domain of the public functionaries.

Supreme Court allowed appeals and set aside the impugned judgments of the High Court with the observation that present judgment shall not hinder the prospects of the candidates in the matter of selection and appointment to the posts applied for by them and hopefully the authorities would consider their cases on merit and strictly in accordance with law.

Pakistan v. Muhammad Himayatullah PLD 1969 SC 407 ref.

(b) Writ‑‑‑

‑‑‑‑Mandamus‑‑‑Description.

"Mandamus" literally means a command. It differs from writs of prohibition' orcertiorari' in its demand for some activity on the part of the body or person to whom it is addressed, for the performance of public duty. In other words it is a command directed to State or corporation, officer or, inferior Court, requiring the performance of a particular duty therein specified, which duty results from the official position of the party to whom the writ is directed, or from operation of law. The writ 6f mandamus is a high prerogative writ of a most extensive remedial nature and is, in form, a command issuing from the High Court, directing any person, corporation, or inferior Court requiring him or them to do some particular thing, therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to do the justice; in all cases where there is a specified legal right and no specific legal remedy for enforcing such right; and it may issue in cases where, although there is an alternative legal remedy, yet such mode of redress is less convenient; beneficial and effective. To sum up, a writ of "mandamus" commands the person to whom it is addressed to perform some public or quasi public legal duty, which he has refused to perform, and the performance of which cannot be enforced by any other adequate legal remedy. In the light of Constitutional mandate, subject to other conditions, it is absolutely necessary that the law should impose on the officer concerned the duty to do what he is refusing or omitting to do and that petitioner should be an aggrieved party having no other adequate and. efficacious remedy.

Mandamus is a peremptory order, commanding a body, or person, to do that which is its, or his, duty to do. This issue of the order is entirely a matter for the discretion of the Court, which will render it, as far as it can, the supplementary means of substantial justice in every case where there is no other specific legal remedy for a legal right; and will provide as effectually as it can that others exercise their duty wherever the subject‑matter is properly within its control.

Constitutional Law by E.S.C. Wade and G. Godfrey Phillips ref.

Mrs. Naheeda Mehboob Ellahi Deputy Attorney‑General for Appellants (in Civil Appeals Nos.366 of 1998 and 892 of 2000).

Sahibzada Ahmad Raza Khan Qasuri, Advocate Supreme Court for Respondent (in Civil Appeal No.366 of 1998).

Nemo for Respondent (in Civil Appeal No.892 of 2000).

Date of hearing: 4th January, 2005.

2005 S C M R 544

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

Mst. BATUL and others‑‑‑Appellants.

Versus

Mst. RAZIA FAZAL and others‑‑‑Respondents

Civil Appeal No. 123 of 1999, decided on 17th January, 2005.

(On appeal from the judgment/order, dated 27‑3‑1998 passed by High Court of Sindh Karachi in H.C.A. No. 145 of 1995)

(a) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 55‑‑‑Agreement to sell property‑‑‑Time not essence of the agreement‑‑‑Transferors had taken upon themselves the legal obligation to obtain Capital Gains Tax Clearance Certificate‑‑‑Delay in obtaining the certificate and exchange of correspondence between the parties with regard to obtaining, of Capital Gains Tax Clearance Certificate by the transferors would have no adverse reflection on the case of the transferees and the time for completion of sales stood extended and transferors were legally estopped to take advantage of their own omissions.

Amina Bibi v. Mudassar Aziz PLD 2003 SC 430 ref.

(b) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 55‑‑‑Agreement to sell property‑‑‑Transferors had themselves postponed the execution of sale‑deed because till then they could not get Capital Gains Tax Clearance Certificate‑‑‑Transferors, in circumstances, would 'be responsible for not performing their part of obligation.

(c) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 22‑‑‑Agreement to sell property‑‑-Transferors were legally bound to obtain Capital Gains Tax Clearance Certificate before registration of sale‑deed‑‑‑Failure to incorporate clause relating to such legal obligation in the sale agreement being a mistake of law, would render the whole agreement void.

(d) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 55‑‑‑Agreement to sell property‑‑‑Correspondence between the parties revealed that both the parties were at fault respectively, towards the performance of their specific obligations, arising out of agreement to sell‑‑‑Held, time was not essence of the contract in circumstances.

Amina Bibi v. Mudassar Aziz PLD 2003 SC 430 fol.

Asad Zaheeruddin v. Sub‑Registrar 1987 CLC 786;. Mst. Musharaf Begum v. Abdul Wahab 1999 CLC 1820; Abdul Hamid v. Abbas Bhai Abdul Hussain PLD 1962 SC 1; Muhammad Yaqub v. Muhammad Nasrullah Khan PLD 1986 SC 497; Alakhram v. Kulwantin Bai AIR 1950 Nag. 238; Jamshed v. Burjorji AIR 1915 PC 83; Pearl Mill Co. Ltd. v. Ivy Tannery Co. Ltd. 1919 (1) KB.78; Ashfaque Ahmed Sheikh v. State PLD 1972 SC 39 (citation is not correct because it deals with `contempt matter'); Abdul Karim v. Muhammad Shafi 1993 SCMR 225 and Saidur Rehman v. Nasrullah Jan 1993 SCMR 231 ref.

(e) Contract Act (IX of 1872)‑‑‑

‑‑‑‑S. 55‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Agreement to sell property‑‑‑Leave to appeal was granted by the Supreme Court to examine as to whether the findings recorded by the two Courts below on the question that transferees had been ready and willing to perform their part under the agreement were in consonance with the evidence available on record.

Fakhruddin G. Ibrahim, Senior Advocate Supreme Court and Muhammad Aslam Butt, Advocate Supreme Court for Appellants.

Shaiq Usmani, Advocate Supreme Court for Respondents.

Dates of hearing; 28th to 30th September, 2004.

2005 S C M R 558

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, M. Javed Buttar and Tassadduq Hussain Jillani, JJ

FEDERATION OF PAKISTAN through Secretary, Cabinet Secretariat, Establishment Division, Islamabad and others‑‑‑Appellants

Versus

ISRAR‑UL‑HAQUE and others‑‑‑Respondents

Civil Appeals Nos. 1251 to 1255 of 2001, decided on 9th December, 2004.

(On appeal from the judgment dated 1‑3‑2000 passed by the Lahore High Court, Lahore in Writ Petitions Nos.13035, 13036 and 13038 of 1994, 8593 and 8594 of 1995)

(a) Removal From Service (Special Provisions) Regulation [MLR 58 of 1969]‑‑‑--

‑‑‑‑Para. 3‑‑‑Constitution of Pakistan (1973), Arts.270‑A & 185(3)--Provisional Constitution Order [1 of 1981], Art.13‑A‑‑‑Article 13‑A of the Provisional Constitution Order 1981 having merged into Art.270‑A of the Constitution, all the actions taken under Removal From Service (Special Provisions) Regulation, 1969 (MLR 58) did not stand validated notwithstanding the judgments of any of the superior Courts or Tribunals having nullified the action of the Authorities under Removal From Service (Special Provisions) Regulations; 1969 (MLR 58) and having reinstated any civil servant‑‑‑Principles.

Legal question involved in the present case was whether in view of the insertion of Article 13‑A in the Provisional Constitution Order through second amendment introduced on 30‑8‑1982 and the same having merged into Article 270‑A of the Constitution of Pakistan, all the actions taken under M.L.R. 58 stood validated notwithstanding the judgments of any of the superior Courts or. Tribunals having nullified the action of the authorities under M.L.R. 58 and having reinstated any civil servant.

Though the regulation had granted validity and immunity from the judicial review through Article 270(4) of the Constitution yet such immunity was enjoyed only by proceedings, orders, or acts, duly taken under law and did not extend to acts etc being coram non judice, without jurisdiction or mala fide.

Immunity is not extended to orders or acts which were patently illegal, coram non judice, without jurisdiction or mala fide.

No immunity could be attached to the action of authority constituted under M.L.R. 58(3) where the mind had already been made up to dismiss civil servants whose list had already been prepared much prior to the indictment or formality of appearing before the Tribunal. Any command issued by the higher authorities to such Special Tribunals to dismiss civil servants mentioned in the said list without providing them adequate opportunity of hearing was a mockery of civilized judicial system.

Any provision seeking to oust the jurisdiction of superior Courts is to be construed strictly with pronounced leaning `against the ouster Acts, orders or proceedings, which are done, made or taken without jurisdiction, mala fide or coram non judice, have not been saved from the scrutiny of Courts by the ouster clause. If such ouster clause is construed widely, it is most likely to lead to absurd results. It is extremely difficult to interpret the same as conferring validity and immunity upon such acts, actions or proceedings which were illegal or indefensible even under those provisions which are subsequently validated. Article 270‑A does not take away the jurisdiction of the High Courts from reviewing acts, actions or proceedings which suffered from defect of jurisdiction or were coram non judice or were mala fide. For this purpose it is unnecessary to draw a distinction between malice in fact and malice in law.

It is an irrefutable reality that the existence or, otherwise of mala fide is a pure question of fact. Hence, by pronouncement of law it cannot be determined, that a particular act, by a particular authority at a particular time was either bona fide or mala fide. No unreasonableness can be attached to an act of Legislature whose every act must be deemed to be fortified by logic and wisdom. If that logic and wisdom‑ is attributed to Legislature, it would be strongly presumed to have existed in case of Article 270‑A of the Constitution as well and thus one cannot think of the validation of an act of mala file, if in the circumstances of each case and as a question of fact, such act was in fact mala fide.

It is proved in the present cases that the civil servants were dismissed from service on the basis of a secret list of officers prepared beforehand. The officers exercising power under M.L.R. 58(3) were thus, mala fidely influenced. They never acted with the application of their own mind and with a sense of imparting justice. The officers were not allowed to obtain legal assistance. It was despite the fact that under paragraph 3(2) of M.L.R. 58 no action could have been taken by the Tribunal unless opportunity to show cause and opportunity to be heard in person had been provided to the aggrieved person. The Tribunal under M.L.R. 58 proceeded with a predetermined action to be taken in accordance with the secret list provided to it by the higher authorities. The proceedings thus were sham proceedings. A hearing or trial conducted by the Tribunal on the basis of a list of those officers earmarked for dismissal is neither a hearing nor a trial. The principles of audi alteram partem, coram non judice, lack of jurisdiction and mala fide are squarely and collectively attracted to the case of the civil servants.

The Federal Government in its benevolence for the people of Pakistan ought to have honoured the decision given by, the Federal Service Tribunal. Supreme Court observed that it is sad that they are languishing for the last about three and a half decades.

M. Yamin Qureshi's case PLD 1980 SC 22; S.A. Rizvi's case 1991 MLD 1834; Federation of Pakistan v. Sheikh Abdul Aziz 1998 SCMR 91 and Federation of Pakistan v. Malik Ghulam Mustafa Khar PLD 1989 SC 26 ref.

(b) Mala fide‑‑‑

‑‑‑‑Existence or otherwise of mala fide is a pure question of fact, hence by pronouncement of law it cannot be determined that a particular act, by a particular authority at a particular time was either bona fide or mala fide.

(c) Constitution of Pakistan (1973)—

‑‑‑‑Art. 270‑A‑‑Validation of act‑-‑Act of mala fide could not be validated under Art.270‑A of the Constitution.

Nasir Saeed Sheikh, Deputy Attorney‑General with Rao Muhammad Yousaf, Advocate‑on‑Record for Appellants (in all Civil Appeals).

M. Saleem Sheikh Advocate Supreme Court for Respondents `(in all Civil Appeals).

Date of hearing: 9th December, 2004.

2005 S C M R 564

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

ALLAH DAD and 3 others‑‑‑Appellants

Versus

DHUMAN KHAN and 10 others‑‑‑Respondents

Civil Appeal No.769 of 1999, decided on 13th January, 2005.

(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, dated 13‑5‑1999 passed in Civil Revision No.34/D of 1988)

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

‑‑‑‑O. XLI, Rr. 4 & 33‑‑‑Appeal from original decree‑‑‑Locus standi to file‑‑‑Appellant was a necessary party who was impleaded as defendant in the suit and since in his absence, no effective decree could be passed, he could conveniently challenge the judgment and decree in his own right and thus the appeal filed by him by impleading non‑appealing parties as respondents, was competent and view that he had no locus standi to file an appeal or the appeal filed by him was not competent, was not correct‑‑‑Even a stranger, who was not made party to the suit, if affected by an order or decree passed by the Court, could competently file an appeal‑‑‑Principles.

The law confers right of appeal on the parties in the suit and under Order XLI, rule, 4 C.P.C. any party in the suit, can prefer an a0peal against the decree but the necessary parties must be brought on record in appeal, either as appellants or respondents and if a decree proceeds on grounds common to all the plaintiffs or defendants and only one of them has appealed against the decree, the Appellate Court may pass an order in favour of all plaintiffs or defendants as the case may be and appeal by one can be considered on behalf of all. Similarly, by virtue of Order XLI; rule 33, C.P.C., if an appeal is filed against a part of decree, the Appellate Court is empowered to make an appropriate order in favour of any of the non‑appealing party subject to the condition that decree proceeded on a common ground. Appellant in the present case was a necessary party who was impleaded as defendant in the suit and 'since in his absence, no effective decree could be passed, he could conveniently challenge the judgment and decree in his own right and thus the appeal filed by him by impleading non‑appealing parties as respondents, was competent and the view that he had no locus standi to file an appeal or the appeal filed by him was not competent, was not correct. Even a stranger, who was not made party to the suit, if affected by an order or decree passed by the Court, can competently file an appeal.

H.M. Saya & Co. v. Wazir Ali Industries Ltd. PLD 1969 SC 65 ref.

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

‑‑‑‑Art. 17‑‑‑Rule of evidence incorporated in Art. 17, Qanun‑e‑Shahadat, 1984‑‑‑Scope.

The rule of evidence incorporated in Article 17 of Qanun‑e-­Shahadat, 1984 is that in the cases which fall within the ambit of sub‑Article (2) of said Article, the Court may accept or act on the testimony of the number of witnesses mentioned therein or such other evidence as the circumstances of the case may warrant. In the light of this rule, in addition to or in absence of direct evidence, the Court may also consider the direct and circumstantial evidence brought on record in proof of a fact.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 100‑‑‑Presumption as to documents thirty years old‑‑­Principles‑‑‑Question relating to the admissibility and genuineness of a document is a mixed question of law and facts.

The question relating to the admissibility and genuineness of a document is a mixed question of law and facts.

The principle underlined in Article 100 of Qanun‑e‑Shahadat. 1984 is that if a document 30 years old or more is produced from proper custody and on its face it is free from suspicion, the Court may presume that it has been signed or written by the person whose signatures appear on it and that it was duly executed and attested by the executant. The age of document, its unsuspicious, character, its custody and other circumstances are foundation to raise a presumption of its execution and if a document is proved more than thirty years old it is admissible in evidence without formal proof but if the genuineness of such a document is disputed, it is the duty of the Court to determine the question of its genuineness and true character. Therefore, the rule is that Court may raise a presumption of existence and execution of a document which is more than 30 years old but it is not necessary that by raising such presumption Court must presume the contents of the document to be true and in such a case, Court may call the parties to produce the evidence. However, the presumption of genuineness of a document is rebuttable and the 'question whether such a presumption can, be raised or not is a question of law which can be raised at any stage.

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

‑‑‑‑Art. 100‑‑‑Presumption as to documents thirty years gold‑‑­Examination of the statements of the executants showed that they had not as such denied the execution and attestation of the documents on the date mentioned thereon, rather their assertion was that the documents did not bear their thumb impressions and except the bare denial they had not brought any other evidence, direct or circumstantial, on record in support of their assertion‑‑‑Documents in question were undeniably executed on a stamp paper bearing seal of. India and the stamp paper bearing such seal remained in use only for a limited period after independence and thereafter, the same would not be available and consequently, a statutory presumption of the execution of these documents on the date mentioned thereon, could safely be raised and without formal proof, would be admissible in evidence under Art. 100 of Qanun‑e‑Shahadat, 1984.

(e) Qanun‑e‑Shahadat (10 of 1984)‑‑--

‑‑‑‑Art. 100‑‑Civil Procedure Code (V of 1908), S.115‑‑‑"Admissibility of a document" and "evidentiary value of a document"‑‑‑Distinction‑‑­Document which is tendered in evidence, if is admitted in evidence, it cannot be subsequently excluded from consideration unless it is shown that it cannot be read in evidence‑‑‑Question as to admissibility of such documents could not be raised and reopened before the High Court in the civil revision even if the scribe and the marginal witnesses of said documents, at the time of tendering the same in evidence, were not available‑‑‑Principles.

The rule of evidence is that a document which is tendered in evidence if is admitted in evidence, it cannot be subsequently excluded from consideration unless it is shown that it cannot be read in evidence. However, there is difference between the admissibility of a document and its evidentiary value and if the objection to the admissibility and mode of proof of a document is not taken at the time of its admission, before the proper Court, it cannot be subsequently, allowed to be taken before the next forum and since the admission of a document in evidence is not challengeable in revisional jurisdiction, the question regarding. the admissibility of the above document could not be raised and reopened before the High Court in the civil revision even if the scribe and the marginal witnesses of these documents at the time of tendering the same in evidence, were not available. The High Court, in its revisional jurisdiction, without going into the question of admissibility or otherwise of a document, may examine and interpret the contents of such document to determine its true character and ascertain the intention of executant. The rule of interpretation of documents is that the character of a document is not necessarily to be recognized from the apparent name given to it rather the same is determined from the terms contained therein, therefore, the description of a document as an agreement may be in fact a gift‑deed or a family settlement and similarly, the intention of executant and the construction of a document is gathered from its language and the natural meanings of the words used in the written instrument.

(f) Interpretation of documents‑‑‑--

‑‑‑‑ Character of a document is not necessarily to be recognized from the apparent name given to it rather the same is determined from the terms contained therein.

(g) Family settlement‑‑‑--

‑‑‑‑ Object behind‑‑‑Interpretation of family settlement by Court‑‑­Principles.

In the normal circumstances, on the death of a Muslim male or female, the property owned by him/her if any, devolves upon his/her successors‑in‑interest in accordance with the law of Shariah but in the present case, the agricultural land was given to the respondents in lieu of share in the Haveli and stipulation therein would show that the agricultural land was linked with the suit Haveli for the purpose of family settlement, therefore, it was necessary for the Courts to ascertain the true character of the above documents for the purpose of effective decision of the dispute between the parties. It was also necessary to ascertain that what other properties were owned by the parents of the parties and in what manner, the same were distributed amongst the parties.

It is to be seen that the object behind the family settlement is always to settle existing or future dispute of the property amongst the members of family and to create goodwill and avoid future disputes between the successors‑in‑interest. The bona fide transaction of family settlement would be binding on the parties and if the settlement by conduct of parties, is capable of receiving constant recognition for a long time, the right to assert under the agreement must not be subsequently allowed to be impeached and Courts may not reject the family settlement on technical grounds.

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

‑‑‑‑S.115‑‑‑Revisional jurisdiction of High Court‑‑‑Scope‑‑‑Failure of High Court to consider the fundamental issues involved in the case and dilating upon the question of facts by raising presumption 'was beyond the scope of S.115, C.P.C.‑‑‑Principles.

High Court without considering the fundamental issues involved in the case, dilated upon the question of facts by raising presumption beyond the scope of revisional jurisdiction under section 115, C.P.C. Revisional jurisdiction is meant primarily for correction of errors made by the subordinate Courts in the exercise of jurisdiction and the proceedings conducted by the said Courts but the finding of fact is not open to challenge and correction in revision unless it is shown to be not based, on any evidence or suffering from non‑reading or misreading of evidence. Erroneous conclusion of law and fact can be corrected in appeal and a revision is not competent in such matters but an erroneous decision on a point of law or fact in consequence to which Courts assumes or declines to assume jurisdiction is revisable, therefore, the finding of fact even if erroneous, cannot be disturbed in the revisional jurisdiction unless it is shown that the same was the result of misreading or non-reading of evidence. The Court in exercise of the revisional power is not supposed to reappraise the evidence and upset the finding of fact.

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

‑‑‑‑S. 115‑‑‑Constitution of Pakistan (1973), Art.185‑‑‑Appeal to Supreme Court ‑‑‑Revisional jurisdiction of High Court‑‑‑Scope‑‑‑Family settlement‑=‑Question of admissibility of the documents under discussion was no longer an issue to be reopened in the civil revision before the High Court rather the real dispute requiring determination was regarding the existence of family settlement and the mode of distribution of the property owned by G & M‑‑‑Parties had not brought any evidence to show that suit property was owned by only G or it was joint property of both G and M and the transaction by virtue of which property was given to the respondents, was independent‑‑‑Without determination of such mixed questions of law and facts, no effective decision of the dispute .between the parties could be made and these questions were not attended to by the lowers Courts and the High Court also, without taking notice of the defects and errors in the case, dismissed the suit in the civil revision on the assumption that suit property was exclusive property of G, and M had no share in the property and that land owned by M, was not part of the dispute between the parties‑‑‑Effect‑‑‑Held, there could be no proper adjudication of the matter without decision of the said question, it was deemed proper to remand the case to the Trial Court by the Supreme Court for decision of the suit afresh on all issues after providing opportunity to parties to produce further evidence.

Gulzarin Kiani, Advocate Supreme Court and Muhammad Munir Peracha, Advocate Supreme Court for Appellants.

Ch. Afrasiab Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Respondents Nos. 1 and 3.

Respondents Nos.2 and 4 to 11: Ex parte.

Date of hearing: 23rd September, 2004.

2005 S C M R 577

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

ABDUL MAJEED and others---Appellants

versus

AMIR MUHAMMAD and others ---Respondents

Civil Appeal No.191 of 1999, decided on 16th September, 2004.

(On appeal from the judgment/order, dated 31-12-1998 passed by High Court of Balochistan, Quetta in R.F.A. No.35 of 1998).

(a) Benami transaction---

----Determination of question as to whether transaction was Benami or not---Factors to be taken into consideration---Burden of proof---Principles.

For determining the question, whether a transaction is a Benami transaction or not, inter alia the following factors are to be taken into consideration:-

(i) source of consideration;

(ii) from whose custody the original title deed and other documents came in evidence;

(iii) who is in possession of the suit property; and

(iv) motive for the Benami transaction.

The initial burden of proof is on the party who alleges that an ostensible owner is a Benamidar for him and that the weakness in the defence evidence would not relieve a plaintiff from discharging the above burden of proof. However, the burden of proof may shift from one party to the other during the trial of a suit. Once the burden of proof is shifted from a plaintiff on a defendant and if he fails to discharge the burden of proof so shifted on him, the plaintiff shall succeed.

The question whether a transaction is Benami in character or not has to be decided keeping in view a number of factors/considerations. The source of purchase money is not conclusive in favour of the Benami character of a transaction though it is an important criterion and that where there are other circumstances showing that the purchaser intended the property to belong to the person in whose favour the conveyance was made, the essence of Benami being the intention of the purchaser, the Court must give effect to such an intention. In a Benami transaction the actual possession of the property or receipt of rents of the property is most important.

The question whether a particular sale is Benami or not, is largely one of fact, and for determining this question, no absolute formula or acid test uniformally applicable in all situations, can be laid down.

Following are considerations for deciding the question of Benami character of a transaction.

(i) It is the duty of the party who raises such plea to prove such plea by adducing cogent, legal, relevant and unimpeachable evidence of definitiveness. The Court is not required to decide this plea on the basis of suspicions, however, strong they may be.

(ii) That Court is to examine as to who has supplied the funds for the purchase of property in dispute. If it is proved that purchase money from some person other than the person in whose favour the sale is made, that circumstance, prima facie, would be strong evidence of the Benami nature of the transaction.

(iii) The character of a transaction is to be ascertained by determining the intentions of the parties at the relevant time which are to be gathered from all the surrounding circumstances i.e. the relationship of parties, the motives underlying the transactions and any other subsequent conduct.

(iv) The possession of the property and custody of title deed.

Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703; Muhammad Zaman v. Sheikh Abdul Hamid 2002 CLC 1209 and Din Muhammad Vagan v. Mst. Rashida Khatoon 2002 CLC 1573 ref.

(b) Benami transaction---

----Burden of proof---If plaintiffs were shown to be owners of the property on account of Benami transaction, defendant had to show the source of payment of amount---Defendant, who was in Government service had failed to disclose his income/savings to substantiate that the sale consideration of the disputed plot was paid by him exclusively---No material was available on the record to ascertain as to whether the construction of the house on the plot was raised by the defendant or jointly by all the brothers (plaintiffs) after purchase of land---Held, defendant having failed to discharge the burden regarding the payment of the consideration of the plot of land as well as cost, which was incurred on construction of the house by him, no other conclusion could be drawn except that it was a joint property, its consideration was paid by their father and he purchased it through his elder son (defendant) that was why he did not demand his share from the father and later on, on his death, other brothers demanded partition of the land, as such he, dishonestly, raised the plea of Benami transaction---Defendant, in circumstances, had failed to establish that the plaintiffs were not recorded as owners in the mutation entry.

(c) Benami transaction---

----Contention was that defendant had got sanctioned electricity connection etc, which would have been disallowed by the concerned Authorities, if he was not exclusive owner of the property---Held, merely for such reason, inference could not be drawn in respect of proprietary/ownership rights of a person over the property under any principle of law.

Tariq Mehmood, Advocate Supreme Court, S.M. Wahab, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Appellants.

Muhammad Munir Piracha, Advocate Supreme Court and S.A.M. Quadri, Advocate-on-Record (absent) for Respondent No.1.

Respondent No.2: Ex parte.

Date of hearing: 16th September, 2004.

2005 S C M R 587

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Mian Muhammad Ajmal, JJ

PAKISTAN through Secretary, Ministry of Defence and others---Petitioners

versus

Haji ABDUL RAZZAQUE---Respondent

C.P.L.A. No.855-K of 2003, decided on 5th July, 2004.

(On appeal from the judgment of High Court of Sindh, Karachi, dated 28-8-2003 passed in HC.A. No.144 of 1993).

Fatal Accidents Act (XIII of 1855)------

----S. 1---Constitution of Pakistan (1973), Art.185(3)---Fatal accident---Road accident---Petitioner (driver) had dashed the truck against motorcycle whereby the cyclist fell down and received fatal injury---Petitioner did not possess a valid driving licence to drive a heavy vehicle in the city---Compensation, determination of---Maxim: Res ipsa loquitur: “Things speak themselves”---Applicability---High Court had taken pains to sift the grain from the chaff and arrived at a just, fair and equitable conclusion which was neither unfair nor unreasonable---Fact that truck in question belonged to a department and was functioning under the management and control of other two persons and the driver was in the employment of the said two persons, suggested that ordinarily they would be responsible for the act of their agent (driver)---Persons who had retained an unqualified employee in public service as a driver on a heavy vehicle was glaringly and grossly negligent and had shown serious maladministration---High Court had correctly applied the doctrine of “Res ipsa loquitur” and conclusion drawn was based on correct, careful and conscious appraisal of evidence and with application of mind to which no exception could be lawfully taken---Petition for leave to appeal against the order of the High Court was dismissed by Supreme Court, in circumstances.

Pakistan Steel Mills Corporation Limited v. Abdul Habib 1993 SCMR 848 ref.

Syed Zaki Muhammad, Deputy Attorney-General for Petitioners.

Nemo for Respondent.

Date of hearing: 5th July, 2004.

2005 S C M R 590

[Supreme Court of Pakistan]

Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ

Dr. AZAM SARFRAZ---Appellant

versus

GOVERNMENT OF PAKISTAN through Secretary Establishment Division Islamabad and others---Respondents

Civil Appeal No.922 of 2004, decided on 11th January, 2005.

(On appeal from the judgment of the Punjab Service Tribunal, Lahore dated 8-12-2003 passed in Appeal No.1890 of 2002.)

(a) Transfer of Population Welfare Programme (Field Activities) Ordinance (XIX of 1983)---

----S. 8 [as amended by Transfer of Population Welfare Programme (Field Activities) (Amendment) Ordinance (XXXII of 2001)]---Constitution of Pakistan (1973), Art. 212 (3)---Dismissal from service---Service Tribunal, jurisdiction of---Civil servant contended that rejection of his appeal by Federal Service Tribunal as well as by Provincial Service Tribunal declining to exercise the power vested in them, had resulted into miscarriage of justice---Civil servant also contended that he had been knocked out by both the Tribunals without adjudicating the matter on merits and that the conflicting decisions of the Tribunals required just, fair and equitable decision purely in accordance with the law laid down by Supreme Court---Leave to appeal was granted by Supreme Court to consider the contentions, and to see whether the findings of both the Tribunals on the point of jurisdiction were tenable.

(b) Transfer of Population Welfare Programme (Field Activities) Ordinance (XIX of 1983)---

----S. 8 [as amended by Transfer of Population Welfare Programme (Field Activities) (Amendment) Ordinance (XXXII of 2001)]---Service Tribunals Act (LXX of 1973), S.4---Punjab Service Tribunals Act (IX of 1974), S.4---Dismissal from service---Service Tribunal, jurisdiction of---Determination---Question of limitation---After having been dismissed from service, civil servant filed appeal before Federal Service Tribunal which was withdrawn on the objection of the Tribunal on point of jurisdiction---Objection of Federal Service Tribunal was that due to amendment in Transfer of Population Welfare Programme (Field Activities) Ordinance, 1983, the civil servant had become provincial employee---Civil servant approached Provincial Service Tribunal but appeal was dismissed on the ground of lack of jurisdiction---Validity---Federal Service Tribunal had misinterpreted and misconstrued the provisions as contained in Transfer of Population Welfare Programme (Field Activities) (Amendment) Ordinance, 2001---Amendment was made applicable with effect from 25.7. 2001, whereas the civil servant was dismissed on 17.5.2001, by Federal Government---Civil servant was dismissed much before the promulgation of Transfer of Population Welfare Programme (Field Activities) (Amendment) Ordinance, 2001, and the question of its application with retrospective effect did not arise---For all practical purposes in the case of civil servant, the provisions as enumerated in Transfer of Population Welfare Programme (Field Activities) Ordinance, 1983, would be applicable---Civil servant for redressal of his grievance had rightly approached Federal Service Tribunal by means of appeal and the order passed by Federal Service Tribunal was set aside---Appeal of the civil servant would be treated as pending before Federal Service Tribunal for decision---Supreme Court directed the Tribunal to decide question of limitation in view of chequered history of the case as no fault could be attributed to the civil servant---Case was remanded.

M. Bilal, Senior Advocate Supreme Court for Appellant.

Mrs. Naheeda Mahboob Elahi, Dy. A.-G. for Respondent No.3.

Respondents Nos.1, 2, 4 and 5: Ex parte.

Date of hearing: 11th January, 2005.

2005 S C M R 594

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Abdul Hameed Dogar and Khalil-ur-Rehman Ramday, JJ

STATE OF ISLAMIC REPUBLIC OF PAKISTAN through Deputy Attorney-General for Pakistan---Appellant

versus

KENNETH MARSHAL and 2 others---Respondents

Criminal Appeal No. 554 of 1995, decided on 3rd October, 2002.

(On appeal from the judgment, dated 4-5-1995 of the High Court of Sindh, at Karachi, passed in Criminal Miscellaneous Application No.477 of 1994 and Criminal Miscellaneous Application No.44 of 1995).

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

----Ss. 2(a), 16, 178, 156(1) & 8---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to the State to examine, firstly, whether the judgment passed by High Court quashing the proceedings was sustainable in law and facts and secondly, whether order could be passed by High Court for partial quashment.

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

----Ss. 2(a), 16, 8, 178 & 156(1)---Proceedings quashed by High Court---Validity---Principal accused, Preventive Officer who examined and cleared the baggage of co-accused passenger and allowed his pre-shipment was found innocent during investigation and was not sent up to face the trial---Complainant, Senior Intelligence Officer, who had registered the F.I.R. was not examined and had been given up without any justification which had cast serious doubt over the veracity of the prosecution case---None of the witnesses examined at the trial had implicated the accused directly or indirectly with the commission of offence and they could not be convicted merely on suspicion and conjectures---Prosecution had failed to produce and exhibit the case property though many opportunities were afforded by the Trial Court---No possibility of conviction of the accused being in sight continuation of trial against them would be an abuse of the process of the Court---Impugned judgment not suffering from any flaw or legal infirmity, appeal was dismissed by the Supreme Court.

The State v. Asif Ali Zardari and another 1994 SCMR 798; Abdul Qadir Motiwala v. The State 2000 PCr.LJ 1734 and Maula Bux and 8 others v. The State and 2 others 1977 SCMR 292 ref.

Sardar Muhammad Aslam, Deputy Advocate-General for Appellant.

Rana Muhammad Shamim, Advocate Supreme Court for Respondent No.1.

Munir Ahmad Bhatti, Advocate Supreme Court for Respondent No.2.

Imtiaz M. Khan, Advocate-on-Record for Respondent No.3.

Date of hearing: 3rd October, 2002.

2005 S C M R 599

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Actg. C.J. Faqir Muhammad Khokhar and Tassadduq Hussain Jillani, JJ

KHAN MUHAMMAD---Petitioner

versus

THE STATE---Respondent

Criminal Petition No.178-L of 2002, decided on 27th January, 2005.

(On appeal against the judgment, dated 4-3-2002 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.339-M of 2002 in Criminal Appeal No.573 of 1993).

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

----Ss. 302, 309, 310 & 311---Criminal Procedure Code (V of 1898), S.345(2)---Offence of Qatl-e-Amd, liable to death by Qisas---Sentence of death, liable to Qisas, has been made compoundable even if the offence has not been compounded by all the legal heirs or otherwise, subject to the provisions of Ss.309, 310 & 311, P.P.C---Principles.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 345(2)---Qatl-i-Amd liable to death by Ta’zir---Offence of Qatal-i-Amd liable to death by Ta’zir is compoundable if all the legal heirs have compounded the offence, the Court is empowered to accord permission to ensure that the parties may bury their hatchets once for all---Principles.

Muhammad Aslam v. Shaukat Ali 1997 SCMR 1307; Manzoor v. The State 1992 SCMR 2037; Manzoor Hussain v. The State 1994 SCMR 1327; Abdullah Jan v. The State 2003 SCMR 1067; Muhammad Saleem v. The State PLD 2003 SC 512; Muhammad Arshad v. Additional Sessions Judge, Lahore PLD 2003 SC 547; Bashir Ahmed v. The State 2004 SCMR 2037 and Federation of Pakistan v. Gul Hasan Khan PLD 1989 SC 633 ref.

Khawaja Sultan Ahmed, Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-Record for Petitioner.

Hasnat Ahmed Khan, Advocate Supreme Court for the Complainant.

Muhammad Hanif Khatana, Advocate-General, (Punjab), for the State.

Date of hearing: 27th January, 2005.

2005 S C M R 605

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah, Khalil-ur-Rehman Ramday and Falak Sher, JJ

MUHAMMAD SHOAIB ROOMI---Appellant

versus

SECRETARY/ADDITIONAL SECRETARY, EDUCATION DEPARTMENT, GOVERNMENT OF PUNJAB and others---Respondents

Civil Appeal No.1111 of 2001, decided on 8th December, 2004.

(On appeal from the judgment, dated 7-12-1999 of the Lahore High Court, Lahore, passed in Writ Petition No.14890 of 1994).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----Rr.4 & 6 (3)---Constitution of Pakistan (1973), Art.185 (3)---Disciplinary matters---Non-holding of regular inquiry---Appellant being employee of Board of Intermediate and Secondary Education was dismissed from service on the allegation of helping candidates in impersonation---Appellant refuted the allegation and order of dismissal was assailed before High Court in Constitutional jurisdiction on the ground that the Board had adopted Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, and no regular inquiry was conducted by the Board---High Court held that the appellant was governed by the principle of master and servant and dismissed the petition without discussing merits of the case---Validity---Allegations levelled against appellant had been controverted by him through detailed explanation which he had submitted---Accusations emanated from complicated, disputed and controversial facts---Appellant had been denied opportunity to face the evidence available against him and to adduce evidence in disproof of the charges levelled against him---Irrespective of the fact whether the rules in question had or had not the status of statutory rules, it was an admitted fact that it was the Board itself which had elected to deal its employees through process and procedure envisaged by Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---Board could not be permitted to go back on the commitment thus made by it to its employees to treat them, in disciplinary matters, in the manner prescribed by Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---Decision of Authorized Officer to dispense with the requirement of regular inquiry and to punish the appellant in slipshod and summary manner and thereby depriving him of his job, could not be sustained on any principle of equity, justice and fairplay---Finding of guilt recorded against appellant and the consequent punishment awarded to him could not be sustained under law---Judgment passed by High Court and dismissal of appellant by Board were set aside---Appeal was allowed.

Appellant in Person.

Sardar Muhammad Siddique, Advocate Supreme Court for Respondents Nos.1 and 4.

Sheikh Shahid Waheed, Advocate Supreme Court for Respondents Nos.2 and 3.

Date of hearing: 8th December, 2004.

2005 S C M R 609

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Hamid Ali Mirza, JJ

HONDA ATLAS CARS (PAKISTAN) LTD.---Appellant

versus

HONDA SARHAD (PVT.) LTD. and others---Respondents

Civil Appeals Nos.1766 and 1767 of 2003, decided on 20th October, 2004.

(On appeal from the judgment/order dated 24-6-2003 passed by Lahore High Court, Lahore in R.F.A. No.69 of 2001).

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

----O.IX, Rr.9 & 13---Limitation Act (IX of 1908), S.5, Arts.163 & 164---Ex parte decree, setting aside of---Restoration of suit dismissed for non-prosecution---Limitation---Non-filing of application for condonation of delay---Two suits were pending adjudication against respondents, one filed against them and the other filed by them---Respondents failed to appear on 13.3.2000, despite calling of the cases repeatedly---Trial Court dismissed the suit by the respondents whereas ex parte order was passed in the other suit---Trial Court after recording of ex parte evidence on 22-6-2000, passed ex parte decree in the suit filed against respondents---Application for setting aside ex parte decree was filed by respondents on 20-12-2000, and application for restoration of their suit was filed on 8-1-2001---Both the applications were set aside by Trial Court but High Court in exercise of appellate jurisdiction allowed the appeals in favour of respondents---Plea raised by appellants was that the applications were time-barred as the same were filed beyond the period of thirty days and no application for condonation of delay was filed by respondents---Validity---Both the applications were beyond the period of limitation i.e. 30 days under Arts.163 and 164 of Limitation Act, 1908, therefore, it was incumbent upon the respondents to have availed the benefit of S.5 of Limitation Act, 1908---Respondents were duly served, they had full knowledge about hearing of cases, they ought to have approached the Trial Court within 30 days in view of the provisions of Arts.163 and 164 of Limitation Act, 1908---If there was delay in filing applications, the respondents should have invoked the provisions of S.5 of Limitation Act, 1908---Respondents had not approached the Trial Court for setting aside orders adversely operating against them within 30 days, nor there was any request for condonation of delay in filing of applications, therefore, Trial Court had rightly declined to restore the suit and to set aside ex parte decree---Orders of Trial Court being proper and legal were not revisable by High Court in its appellate jurisdiction---Judgment passed by High Court was set aside and that of Trial Court was restored---Appeal was allowed.

Messrs Rehman Weaving Factory (Regd.) v. Industrial Development Bank of Pakistan PLD 1981 SC 21 distinguished.

Gulzar v. Hata 1988 MLD 1518; State Life Insurance Corporation of Pakistan v. Shakar Khatoon 1998 CLC 283; China Petroleum Engineering Construction Corporation (CPECC) v. Messrs R.J. Engineering and Management Consultants 1999 CLC 117; Mst. Durdana Akbar v. Government of Sindh 1999 CLC 1846; Atta-ur-Rehman Baig v. Barey Khan PLD 1998 Pesh. 83; Muhammad Ismail v. Muhammad Hussain 1991 CLC 237; Government of N.-W.F.P. v. Surryia Begum PLD 1995 Pesh. 53 and Mian Kamal Din v. Muhammad Bashir PLD 1952 Lah. 456 ref.

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

----O. XVII, R. 4---Adjourned date of hearing falling on holiday---Effect---Presumption---Parties were under obligation to attend the Court on next opening day in order to know the next date of hearing---Presumption of law was that the parties had knowledge of next date of hearing fixed by the Court---Court was not bound to inform the parties about next date of hearing in presence of O.XVII, R.4, C.P.C. and it was the duty of parties to have inquired about the next date of hearing.

Hamid Khan, Advocate Supreme Court and Mahmood-ul-Islam, Advocate-on-Record (absent) for Appellant.

Muhammad Rashid Qamar, Advocate Supreme Court and Haji Muhammad Zahir Shah, Advocate-on-Record for Respondent No.1.

Respondent No.2: Ex parte.

Zulfiqar Ahmed Bhutta, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record (absent) for Respondents Nos.3 and 4.

Date of hearing: 20th October, 2004.

2005 S C M R 622

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Tassadduq Hussain Jillani, JJ

INAM-UL-HAQ---Petitioner

versus

CHAIRMAN, F.P.S.C., ISLAMABAD and others---Respondents

Civil Petition No.606 of 2004, decided on 6th January, 2005.

(On appeal from the order dated 26-1-2004 of the Lahore High Court, Rawalpindi Bench, Rawalpindi in F.A.O. No.156 of 2003).

(a) Competitive Examination Rules, 1977---

----R. 4 (ii)(b)---Age relaxation---Subjects of “Azad Kashmir” and “State of Jammu and Kashmir”---Distinction---Subjects of Jammu and Kashmir State are a category apart and different from the category of people who are living in Azad Kashmir---Candidates from Azad Kashmir and candidates who are subjects of Jammu and Kashmir State are two distinct, separate and independent categories who are differently treated by R.4 (ii) (b) of Competitive Examination Rules, 1977.

(b) Competitive Examination Rules, 1977---

----Rr. 4 (ii)(b) & 6 (iii)(d)---Age relaxation---Subject of State of Jammu and Kashmir---Change of domicile---Candidate sought relaxation of upper age limit on the ground that he was subject of State of Jammu and Kashmir---Federal Public Service Commission declined the relaxation for the reason that earlier the candidate had declared himself to have the domicile of Balochistan but subsequently he claimed himself to be the subject of State of Jammu and Kashmir---Decision of the Commission was maintained by High Court in Constitutional jurisdiction---Validity---Candidate who was subject of Jammu and Kashmir State, in order to qualify for the grant of concession envisaged by R.4 (ii) (b) of Competitive Examination Rules, 1977, was not required to be a permanent resident of that State or even of Azad Kashmir Territory or the Northern Areas---Such candidate was required only to show that he was subject of Jammu and Kashmir State---On satisfaction of such condition, the candidate had become entitled to the relaxation of upper age limit irrespective of the fact whether he was a resident of Azad Kashmir or the Northern Areas or of any other part of Pakistan---Impression of the Public Service Commission that the candidate, by claiming relaxation of upper age limit as being subject of Jammu and Kashmir State, was changing his place of domicile from the Province of Balochistan to Azad Jammu and Kashmir Territory, was erroneous---Decisions of Federal Public Service Commission and High Court were set aside and the petition for leave to appeal was converted into appeal---Supreme Court declared that the case of the candidate was not one of change of domicile and he was entitled to claim relaxation of upper age limit as envisaged by R.4 (ii)(b) of Competitive Examination Rules, 1977, being a candidate of Jammu and Kashmir State while continuing to be a domicile of Balochistan---Supreme Court directed the Public Service Commission to consider the case of the candidate for grant of age relaxation in accordance with law---Appeal was allowed.

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

Raja Muhammad Irshad, D.A.-G., Ch. Akhtar Ali, Advocate-on-Record and Amin-ur-Rehman, Assistant Director for Respondents.

Nabeel Ahmed Quraishi, D.C./District Magistrate, Mirpur Azad Kashmir on Court’s notice.

Date of hearing: 6th January, 2005.

2005 S C M R 627

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J. Javed Iqbal and Tassadduq Hussain Jillani, JJ

IMTIAZ ALI and another---Petitioners

versus

ABUL KALAM and others---Respondents

Civil Petition No.559-K of 2001, decided on 20th October, 2004.

(On appeal from the order of the High Court of Sindh, Karachi, dated 15-5-2001 passed in C.P. No.D-42 of 1999).

N.E.D. University of Engineering and Technology Act (III of 1977)---

----Ss. 50 & 52---Constitution of Pakistan (1973), Arts.185(3) & 204---Format of degree---Endorsement on degree---Contempt of Court, commission of---Degrees were issued to petitioners with an endorsement on them that the same were awarded in compliance with decision of High Court---Petitioners assailed the endorsement before High Court in Constitutional jurisdiction but the petition was dismissed by High Court---Plea raised by petitioners was that by endorsing such remarks, the University Authorities had committed contempt of Court as the remarks were adverse and against the prescribed format of degree---Validity---Such endorsement on degrees could not be equated to that of adverse remarks, rather it was a statement of fact having no detrimental effect on the career of petitioners---Though a format of degree had been prescribed but it could be amended under S.52 of N.E.D. University of Engineering and Technology Act, 1977---Endorsement in question had not changed the format of degree rather it was statement of fact---Unequivocal adherence had been shown by the University Authorities, to the orders of High Court, pursuant whereof degrees had been awarded---Power to commit for contempt was a power which had been vested in superior Courts as an extraordinary power and had, therefore, to be exercised with great circumspection only where it was absolutely necessary in public interest to do so---No contempt had been committed and the endorsement made on the degrees would have no detrimental effect---Leave to appeal was refused.

Zahur Ilahi v. Mr. Zulfikar Ali Bhutto PLD 1975 SC 383 rel.

Abdul Rahim Kazi, Advocate Supreme Court and Miss Wajahat Niaz, Advocate-on-Record (absent) for Petitioners.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court for Respondents Nos. 1 and 2.

Qazi Khalid Ali, Additional Advocate-General, Sindh for A.-G. Sindh.

Date of hearing: 20th October, 2004.

2005 S C M R 631

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J. Javed Iqbal and Abdul Hameed Dogar, JJ

MUHAMMAD ILYAS and 3 others---Petitioners

versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Defence Secretariat Building, Islamabad and 2 others---Respondents

Civil Petitions Nos.494-K to 497-K of 2003, decided on 29th December, 2004.

(On appeal against the judgment, dated 5-5-2003 of the Federal Service Tribunal, Islamabad passed in Appeals Nos.1650(K)CE, 1651(K)CE, 1652(K)CE, 1653(K)CE and 1654(K)CE of 2001).

(a) Civil service---

----Reinstatement in service without granting back-benefits---Civil servant alleged to have filed affidavit before Service Tribunal affirming that he remained unemployed during period of termination of service---Validity---Neither date of affidavit nor date of its filing before Service Tribunal was given---Such affidavit appeared to have surreptitiously placed on record---Civil servant had not satisfactorily established that he remained unemployed during period of termination of service---Civil servant could not take advantage of his own failure---Case for grant of consequential benefit to civil servant not made out---Supreme Court dismissed petition and refused leave to appeal.

Pakistan v. Mrs. A.V. Issacs PLD 1970 SC 415; Ali Nawaz v. Pakistan Railway 1999 SCMR 1873; General Manager v. Mehmood Ahmed Butt 2002 PLC (C.S.) 982 and House Building Finance Corporation v. Muhammad Ali Gohar Zaidi 2004 PLC (C.S.) 1488 ref.

Abdul Hafeez Abbasi v. Managing Director, PIA 2002 SCMR 1034 rel.

(b) Civil service---

----Reinstatement in service---Back-benefits, entitlement to---As a rule and in the interest of safe administration of justice, question of such entitlement must be agitated before and determined by initial forum.

M.M. Aqil Awan Advocate Supreme Court and Ms. Wajahat Niaz, Advocate-on-Record for Petitioners.

Syed Ziauddin Nasir, Standing Counsel for Respondent No.1.

Syed Shahanshah Hussain, Advocate Supreme Court and A. Aziz Khan, Advocate-on-Record for Respondents Nos.2 and 3.

Date of hearing: 29th December, 2004.

2005 S C M R 635

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Faqir Muhammad Khokhar and M. Javed Buttar, JJ

Syed MAQBOOL MUHAMMAD---Petitioner

versus

THE STATE---Respondent

Criminal Petition No.346 of 2004, heard on 16th December, 2004.

(On appeal from order, dated 20-8-2004 of High Court of Sindh, Hyderabad Circuit, passed in Cr.B.A. No.459 of 2004).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324---Constitution of Pakistan (1973), Art.185(3)---Bail, refusal of---Accused alone was charged by the police with the murder of the deceased by causing fire-arm injuries which was supported by the post-mortem report---Two prosecution witnesses had supported the prosecution case---Counter-F.I.R. lodged by the accused had been cancelled after investigation by the police---Deeper appreciation of evidence collected by the prosecution could not be made at this stage as it might prejudice the case of either side during trial---Offence with which the accused was charged, prima facie, fell within the prohibitory clause of S.497(1), Cr.P.C.---Discretion exercised by High Court in declining bail to the accused was neither arbitrary nor perverse---Bail was refused to accused in circumstances and leave to appeal was declined to him accordingly.

Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845 and Muhammad Khan v. Maula Bakhsh and another 1998 SCMR 570 ref.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Dr. Qazi Khalid Ali, Additional Advocate-General, Sindh for Respondent.

Date of hearing: 16th December, 2004.

2005 S C M R 638

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J.and Abdul Hameed Dogar, J

SHAMIM AHMED KAZMI---Petitioner

versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION and another---Respondents

Civil Petition No.800-K of 2003, decided on 3rd December, 2004.

(On appeal from the judgment dated 28-8-2003 of the Federal Service Tribunal, Karachi passed in Appeal No.539(K) of 1997).

Pakistan International Airlines Corporation Employees (Efficiency and Discipline) Regulations, 1985---

----Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Misconduct, charge of---Service Tribunal converted such punishment into compulsory retirement---Validity---Show cause had been issued to employee on complaint of a foreign passenger for over-charging him on excess baggage---Excess amount had been returned to passenger in presence of witnesses---Employee had been given three warnings on identical matters earlier to such incident, thus, he was a habitual offender---Complainant could not be examined as he was a foreigner and procurement of his attendance was difficult---Mere non-examination of complainant would not absolve employee from his liability---Prosecution witnesses had fully implicated employee with commission of offence---Charge of misconduct had rightly been established against employee---Service Tribunal had taken lenient view while passing impugned order---No misreading, non-reading or illegality in impugned order could be pointed out---Supreme Court dismissed petition and refused leave to appeal.

Manzoor Ali Khan, Advocate Supreme Court for Petitioner.

Amir Malik, Advocate Supreme Court and Raja Sher Muhammad Khan, Advocate-on-Record for Respondent No.1.

Date of hearing: 3rd December, 2004.

2005 S C M R 642

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Falak Sher, JJ

GOVERNMENT OF BALOCHISTAN, DEPARTMENT OF HEALTH through Secretary, Civil Secretariat, Quetta---Appellant

versus

Dr. ZAHIDA KAKAR and 43 others---Respondents

Civil Appeal No.1236 of 2000, decided on 1st February, 2005.

(On appeal from the judgment, dated 4-9-2000 passed by the High Court of Balochistan, Quetta in Civil Petition No.202 of 2000).

(a) Civil service---

----Contract appointment---Scope---Such appointment terminates on the expiry of contract period or any extended period on the choice of employer or appointing authority---Prima facie, such appointment does not create any vested right.

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

----Art. 185 (3)---Interim injunction, setting aside of---Concession in competitive examination---Effect---Respondents were appointed by Provincial Government on contract basis for a period of six months extendable for a period of two years---On the expiry of extension, services of respondents were terminated---Authorities notified that respondents might apply to Public Service Commission for their selection---Grievance of respondents was that the Government had earlier undertaken to award 5% to 10% extra marks in view of the experience attained by them due to their contract employment---Respondents invoked Constitutional jurisdiction of High Court wherein High Court granted ad interim injunction and the authorities were directed to maintain status quo order---Validity---If concession of 5 to 10 percent of marks was given to any candidate in competitive examination, his marks might increase in arithmetical progression but his ranking on merit qua the other candidates would always increase by geometrical progression---As such the same would tantamount to conferring predetermined undue advantage to one category of candidates over the rest of the candidates which, by all canons of justice, was a glaring discrimination---Instances were there when Public Service Commission, while advertising certain posts, provided for some experience of desire nature, desired in such cases experience of any candidate was taken into consideration without discrimination---If any experience was demanded by Public Service Commission itself during open competition, that being of general nature and applicable to every candidate, was neither objectionable nor discriminatory---Interim order passed by High Court had resulted in disturbing the normal functions of Government as well as the Commission---Such injunction also blocked the chance of early competitive examination for candidates at large, other than respondents---Interim injunction issued by High Court was set aside and withdrawn---Appeal was allowed.

Sala-ud-Din Mangel, Advocate-General Balochistan and Tariq Bilal, Advocate Supreme Court for Appellant.

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

Date of hearing: 1st February, 2005.

2005 S C M R 646

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

CHIEF SECRETARY, GOVERNMENT OF SINDH and others---Petitioners

versus

Al-Haj Professor Syed SIBTE HASAN ZAIDI and others---Respondents

C.P.L.A. No.441-K of 2004, decided on 18th November, 2004.

Constitution of Pakistan (1973)---

----Art. 212(3)---Service Tribunal having struck down the order of removal from service passed against employee, Government had sought leave to appeal against said judgment of Tribunal---Tribunal had rightly recorded that Enquiry Officer did not reach the place of holding enquiry on the stipulated date and time and without holding enquiry against employee, submitted an adverse report to the Department which was accepted as gospel truth without application of mind to the facts and circumstances of case culminating in imposition of penalty of removal from service on the employee---No question of law of public importance was involved in the case and it was not a fit case in which petition for leave to appeal should have been filed and in all propriety and fairness, the Department should have implemented judgment of Tribunal, instead of entering luxury of uncalled for litigation at State expense.

Anwar Mansoor Khan Advocate-General, Sindh for Petitioners.

Respondent No.1 in person.

Nemo for Respondents No.2 to 5.

Date of hearing: 18th November, 2004.

2005 S C M R 648

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Khalil-ur-Rehman Ramday, Faqir Muhammad Khokha M. Javed Buttar and Tassadduq Hussain Jillani, JJ

RAMESH M. UDESHI---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.306 of 1998, decided on 14th December, 2004.

(On appeal from the judgment, dated 30-11-1998 of the High Court of Sindh, Karachi Ehtesab Reference No.7 of 1997)

(a) Ehtesab Act (IX of 1997)---

----Ss. 3, 4 & 26---National Accountability Ordinance (XVIII of 1999), Ss. 9, 10 & 32---Constitution of Pakistan (1973), Art. 185---Corrupt and corrupt practices---Sale of State-land---Charge against the accused, a former Secretary of Provincial Government, was that he along with absconding accused, the former Chief Minister of the Province, in collusion and connivance with each other with mala fide and dishonest intention to secure illegal, wrongful and fraudulent pecuniary gains and profits conjointly committed the offence/offences punishable under Ss. 3 & 4, Ehtesab Act, 1997 within the cognizance of the Ehtesab Court---Perusal of summary submitted to the Chief Minister by the accused/appellant did not show any illegality, mala fide and dishonest intention on his part---No evidence was available on record to show the obtaining of any illegal gratification and pecuniary benefits by the accused---Evidence on record did not show that the accused provided any illegal and fraudulent gain to the co-accused, the former Chief Minister (absconding) because all the necessary facts had been properly and correctly stated in the summary submitted by the accused which were based on the report of the Deputy Commissioner---Involvement of accused in the offence could not be proved by the prosecution---High Court had failed to appreciate that no conclusive evidence had been produced to show any material gain or advantage obtained by the accused---No cogent guilt of the accused thus could be established---Conviction could not be based on surmises and conjectures---Charge as a whole and the offence as alleged, in circumstances, was not proved against the accused---Appeal of the accused was allowed by the Supreme Court and judgment of the High Court passed in Ehtesab Reference was set aside.

Zahid Akhtar v. Government of Punjab PLD 1995 SC 530 ref.

(b) Administrative decision---

----Compliance of an illegal or incompetent direction/order by a subordinate officer could neither be justified on the plea of the same having been issued by a superior authority nor the same could be defended on the ground that non-compliance thereof would expose the subordinate officer to disciplinary action for defying the orders of superior authority.

Zahid Akhtar v. Government of Punjab PLD 1995 SC 530 ref.

Abdul Rahim Qazi, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellant.

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

Date of hearing: 14th December, 2004.

2005 S C M R 654

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

INSPECTOR-GENERAL OF POLICE, SINDH and others---Petitioners

versus

HABIBUR REHMAN ABRO---Respondent

C.P.L.A. No.760-K of 2002, decided on 10th November, 2004.

Sindh Police (Efficiency and Discipline) Rules, 1988---

---- R. 12---Police Rules 1934, R. 16.28---Constitution of Pakistan (1973), Art.212(3)---Police Officer was proceeded against on charge of misconduct; was charge-sheeted and inquiry was held against him and he was found innocent and Senior Superintendent of Police exonerated him---Deputy Inspector-General of Police, while disagreeing with the findings recorded by Senior Superintendent of Police, issued a notice in terms of R.12 of Sindh Police (Efficiency and Discipline) Rules, 1988 to the official to show cause as to why penalty of dismissal from service should not be imposed upon him---Deputy Inspector-General thereafter found the official guilty of charge against him and awarded penalty of forfeiture of two years approved service---After rejection of departmental appeal, official challenged impugned order before Service Tribunal which was struck down vide order impugned in the petition for leave to appeal by the Authority---Tribunal, after comparison of R.16.28 of Police Rules, 1934 with R.12 of Sindh Police (Efficiency and Discipline) Rules, 1988, had recorded a categorical finding that in view of material change in latest Rules, Deputy Inspector-General was not competent to call for record of a decided case and inflict punishment in the case in which it had not been awarded---Appellate or Revisional Authorities under the latest Rules were no longer vested with power to alter a finding of exoneration from charge into a finding of guilt---Deputy Inspector General of Police thus, could not convert a finding of "not guilty" into finding of "guilty" or to alter finding of 'exoneration' into finding of "proved guilty"---No other ground having been urged in support of petition, same being without any merit, was dismissed.

Dr. Qazi Khalid Ali, Additional Advocate-General, Sindh and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioners.

Respondent in person.

Date of hearing: 10th November, 2004.

2005 S C M R 658

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Sardar Muhammad Raza Khan, JJ

Mst. GHULAM BANO alias GULAB BANO and others---Petitioners

versus

Mst. NOOR JEHAN and others---Respondents

Criminal Petition No.1944 of 2004, decided on 11th February, 2005.

(On appeal from the judgment and decree dated 19-7-2004 passed by learned Single Judge of Lahore High Court, Multan Bench in Civil Revision No.978 of 1996).

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

----Ss. 19-A & 20---West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), S.2-A---Succession to tenancy of Muslim tenant---Principles---Where deceased tenant had not made full payment and had not become absolute owner, then tenancy would be inherited by his male lineal descendant---Promulgation of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 being a general law on the subject would not have effect of derogating from terms of Colonization of Government Lands (Punjab) Act, 1912 under which grant was made and which was a special law---Where Muslim tenant died after coming into force of Colonization of Government Land (Punjab) Act, 1912, then nothing in S.20 thereof would apply---If Muslim tenant had died prior to year 1951, then his daughters could neither claim benefit of S.19-A of Colonization of Government Lands (Punjab) Act, 1912 nor could be benefited from retrospectivity of S.2-A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962.

Abdul Ghafoor’s case PLD 1985 SC 407 ref.

Mst. Bibi’s case PLD 1989 SC 384 and Umar Din’s case PLD 1995 SC 686 rel.

Mst. Naziran Bibi’s case 2004 SCMR 94 distinguished.

Muhammad Amin K. Jan Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Petitioners.

Ch. Mushtaq A. Khan, Senior Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Respondents Nos.1 to 10.

Date of hearing: 13th January, 2005.

2005 S C M R 664

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

Mst. SAT BHIRAI alias ALAM KHATOON and others---Petitioners

versus

MUREED and others---Respondents

C.P.L.A. No.350-K of 2003, decided on 12th November, 2004.

Civil Procedure Code (V of 1908)---

----S. 115---Constitution of Pakistan (1973), Art.185(3)---Revision by High Court---Leave to appeal was granted in order to reappraise evidence and to consider whether revisional judgment of High Court whereby concurrent findings of fact of two Courts were set aside, could be sustained where petitioners had alleged that there was misreading of evidence on the part of High Court.

Mushtaq A. Memon, Advocate Supreme Court and K.A. Wahab Advocate-on-Record for Petitioners.

Abdul Rahim Kazi, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Respondents.

Date of hearing: 12th November, 2004.

2005 S C M R 666

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and M. Javed Buttar, JJ

KHAWAJA---Appellant

versus

MUHAMMAD DIN---Respondent

Civil Appeal No.1983 of 2000, decided on 15h February, 2005.

(On appeal against the judgment dated 5-8-1999 passed by the Lahore High Court, Lahore, in Civil Revision No.1692/D of 1980).

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

----Ss. 5 & 30---Limitation Act (IX of 1908), Arts.10 & 120---Pre-emption suit---Limitation---Sale between vendor and vendee took place in year 1964, but same was not accepted by Revenue Authority being against land reforms---Suit filed by vendee was decreed on 4-3-1969 and on its basis mutation was attested on 2-12-1970---Pre-emption suit filed on 4-1-1972 was decreed by Courts below, but was dismissed by High Court---Validity---Article 10 of Limitation Act, 1908 read with S.30 of Punjab Pre-emption Act, 1991 would not govern period of limitation, rather Art.120 of Limitation Act, 1908 would govern the period of limitation for purposes of filing suit of such nature---Supreme Court accepted appeal, set aside impugned judgment and restored judgment of Trial Court.

Khuda Yar and 4 others v. Nawaz Khan and 2 others PLD 1987 Lah. 127 ref.

H. Niamatullah Khan v. Mst. Shabanam and others 1974 SCMR 425 fol.

Abdur Rashid Awan, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Appellant.

Ch. Muhammad Akram, Advocate-on-Record for Respondents 1 to 6, 8 and 9.

Nemo for Respondent No.7.

Date of hearing: 15th February, 2005.

2005 SCMR 668

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Mian Shakirullah Jan, JJ

REHMAT WAZIR and others---Petitioners

versus

SHER AFZAL and others---Respondents

Civil Petition No.137-P of 2003, decided on 27th December, 2004.

(On appeal from the judgment dated 13-1-2003 passed by the Peshawar High Court, Peshawar in Writ Petition No.876 of 2001).

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

----S. 2(2) & O.XXI, R.10---Not judgment, but decree is executable and same has to be executed.

Ghulam Muhammad’s case PLD 1963 SC 265 fol.

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

----Ss. 68 & 68-A---Specific Relief Act (I of 1877), Ss.42 & 54---Civil Procedure Code (V of 1908), S.2(2) & O.XXI, R.10---Suit for declaration and permanent injunction---Claim regarding right to use canal water in certain proportion---Authority under Canal and Drainage Act, 1873 not impleaded as party in suit---Trial Court refused relief of injunction, but granted declaratory decree regarding such right to the extent as prayed for---Objection as to executability of such decree was turned down by Executing Court, which judgment was upheld by Appellate Court and in Constitutional petition by High Court---Validity---Such declaratory decree could not be executed in view of the fact that relief of permanent injunction was declined---Such right was made subject to any final determination by authorities under Canal and Drainage Act, 1873---To determine irrigation rights of different people and prepare a “Wara Bandi” was exclusive job assigned to concerned authorities under Canal and Drainage Act, 1873, who, till final determination, could make interim arrangements---Civil Court was barred to determine such rights---Supreme Court accepted appeal with directions to concerned authorities under Canal and Drainage Act, 1873 to prepare a “Wara Bandi” in accordance with law within specified time.

Bashir Ahmad’s case 1996 SCMR 536 and Abdul Qayyum’s case 1992 SCMR 613 fol.

M. Sardar Khan, Senior Advocate Supreme Court with M. Zahoor Qureshi, Advocate-on-Record for Petitioners.

Sh. Wazir Muhammad Advocate Supreme Court/Advocate-on-Record for Respondents Nos.1 to 4.

Nemo for other Respondents.

Date of hearing: 27th December, 2004.

2005 S C M R 671

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

Messrs BRITISH BISCUITS COMPANY (PVT.) LIMITED---Petitioner

versus

Messrs ATLAS INVESTMENT BANK LIMTED---Respondent

C.M.A. No.2 of 2005 in Civil Petition No.2883 of 2004, decided on 5th January, 2005.

(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 28-10-2004 passed in E.F.A. No.24 of 2004)

(a) Financial Institutions (Recovery of Finances) Ordinance (XLVII of 2001)---

----S. 19---Civil Procedure Code (V of 1908), O.XXI, R.90---Execution of decree---Auction of property---Objection petition by judgment-debtor under S.19(7) of Financial Institutions (Recovery of Finances) Ordinance, 2001 alleging fraud and glaring irregularities during auction proceedings without depositing 20% of amount realized at sale---Banking Tribunal dismissed application filed by Bank under O.XXI, R.90, C.P.C. being non-maintainable in view of S.19(7) of Financial Institutions (Recovery of Finances) Ordinance, 2001---High Court in appeal set aside order of Tribunal and dismissed objection petition being not maintainable without such deposit---Confirmation of auction in favour of Bank (decree-holder) by Tribunal after passing of judgment by High Court---Validity---Auction could not be deferred, when no objection petition was pending before Court after passing of impugned judgment---Sale could be confirmed by Banking Tribunal at such particular moment---Supreme Court neither granted stay order nor suspended operation of impugned judgment, thus, question of suspension of execution proceedings would not arise---Conduct of judgment-debtor was not above board for having made every effort to get proceedings prolonged on one pretext or the other---Supreme Court refused to exercise discretion in such-like case and grant leave to appeal.

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

----Art. 185(3)---Leave to appeal, granting or refusal of---Principles---Granting of leave was a matter of discretion and not of right---Provisions of Art.185(3) of Constitution did not impose any limitation as to circumstances, which would justify or warrant grant of leave to appeal---Discretionary jurisdiction to grant or refuse leave to appeal on account of conduct of petitioner---Such conduct would have substantial bearing on question of grant of leave to appeal or otherwise.

Dauran Khan v. Naseer Muhammad Khan PLD 1964 SC 136; W.H. King v. Emperor AIR 1950 Bom. 380; Jai Singh and others v. State AIR 1952 All. 991; Mst. Hassan Bano v. Mrs. Mumtaz Younus PLD 1989 SC 346; Deen Carpets Limited v. Iqbal Ghuman PLD 1989 SC 516; Mst. Tilawatunnisa v. Settlement Commissioner 1978 SCMR 225 rel.

M. Naeem Bokhari, Advocate Supreme Court with Muhammad Rashid Qamar, Advocate Supreme Court and Ijaz Muhammad Khan Advocate-on-Record (absent) for Petitioner.

Syed Najmul Hassan Kazmi, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent.

Date of hearing: 5th January, 2005.

2005 S C M R 675

[Supreme Court of Pakistan]

Present: Javed Iqbal, Hamid Ali Mirza and Tassadduq Hussain Jillani, JJ

SECRETARY TO THE GOVERNMENT OF PAKISTAN MINISTRY OF FINANCE and others---Petitioners

versus

MUHAMMAD HUSSAIN SHAH and others---Respondents

Civil Petitions Nos. 910, 940 to 970, 1884 to 1887 and 1957 of 2004, decided on 14th October, 2004.

(On appeal from the judgment, dated 27-2-2004 passed by Federal Service Tribunal in Appeals Nos.1046(R)(C.S.) of 2002, 91(R)(C.S.) of 2003, 92(R)(C.S.) of 2003, 93(R)(C.S.) of 2003, 94(R)(C.S.) of 2003, 105(R)(C.S.) of 2003, 106(R)(C.S.) of 2003, 154(R)(C.S.) of 2003, 162(R)(C.S.) of 2003, 173(R)(C.S.) of 2003, 174(R)(C.S.) of 2003, 183(R)(C.S.) of 2003, 211(R)(C.S.) of 2003, 223(R)(C.S.) of 2003, 237(R)(C.S.) of 2003, 238(R)(C.S.) of 2003, 244(R)(C.S.) of 2003, 248(R)(C.S.) of 2003, 252(R)(C.S.) of 2003, 258(R)(C.S.) of 2003, 332(R)(C.S.) of 2003, 348(R)(C.S.) of 2003, 349(R)(C.S.) of 2003, 352(R)(C.S.) of 2003, 372(R)(C.S.) of 2003, 373(R)(C.S.) of 2003, 377(R)(C.S.) of 2003, 381(R)(C.S.) of 2003, 415(R)(C.S.) of 2003, 527(R)(C.S.) of 2003, 1036(R)(C.S.) of 2003, 1287(R)(C.S.) of 2003, 1288(R)(C.S.) of 2003, 1289(R)(C.S.) of 2003, 139(R)(C.S.) of 2004 and 309(L)(C.S.) of 2003).

(a) Civil Service Rules---

----R. 38(c)(i)---Secretariat Allowance (Rescission of Orders etc.) Ordinance (XII of 2000), S.2---Conversion of Secretariat Allowance into Personal Allowance---Civil servant drawing such Personal Allowance was retired before promulgation of Secretariat Allowance (Rescission of Orders etc.) Ordinance, 2000---Effect---Vested right had accrued to civil servant at the time of his retirement in terms of unamended R.38(c)(i) of Civil Service Rules---Such Personal Allowance would be reckoned with in calculation of pension of civil servant.

Asghar Mahmood and others v. Finance Division and others Civil Appeal No.1298 of 1995; Asghar Ali v. Federation of Pakistan and others Civil Petitions Nos. 350 to 399 of 2002; Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652 and Hashwani Hotels Ltd. v. Federation of Pakistan PLD 1997 SC 3150 fol.

(b) Notification---

----Notification cannot operate retrospectively, if same affects adversely interest of any person.

Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652 and Hashwani Hotels Ltd. v. Federation of Pakistan PLD 1997 SC 3150 fol.

Raja Muhammad Irshad, D.A.G., M.S. Khattak, Advocate-on-Record and Raja Abdul Ghafoor, Advocate-on-Record for Petitioners (in all petitions).

Sheikh Riazul Haque, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondents (in C.Ps. 910, 940 and 970 of 2004).

Nemo for Respondents (in C.Ps. Nos.941 to 968 of 2004).

Nemo for Respondents (in C.Ps. Nos. 969, 1884 to 1887 and 1957 of 2004)..

Date of hearing: 14th October, 2004.

2005 S C M R 678

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Mian Shakirullah Jan, JJ

HAZARA (HILL TRACT) IMPROVEMENT TRUST through Chairman and others---Appellants

versus

Mst. QAISRA ELAHI and others---Respondents

Civil Appeals Nos.742 and 743 of 1998, decided on 15th December, 2004.

(On appeal against the judgment dated 14-9-1994 passed by the Peshawar High Court, Circuit Bench Abbottabad in W.P. No.28 of 1991).

(a) Maxim---

----“Audi alteram partem” (no one should be condemned unheard)---Origin and validity---Violation of principle of natural justice enshrined in the maxim would be enough to vitiate even most solemn proceedings---Such principles originated from Islamic System of Justice and would be read/considered as a part of every statute in the interest of justice---Principle now being made inbuilt part of civil contracts would apply to all kinds of proceedings strictly and departure therefrom would render subsequent actions illegal in the eye of law---Principles.

The principle of natural justice enshrined in the maxim “audi alteram partem” is one of the most important principles and its violation is always considered enough to vitiate even most solemn proceedings. Where adverse action is contemplated to be taken against the person/persons, he/they would have a right to defend such action, notwithstanding the fact that the statute governing their rights does not contain provision of the principles of natural justice and even in absence thereof, it is to be read/considered as a part of such statute in the interest of justice. It is important to note that the principles of natural is now made inbuilt part of civil contracts. This principle originates from Islamic system of justice as evidenced from historical episode when Iblees was scolded for having misled Hazrat Adam (p.b.h.) into disobedience of Allah’s command. Almighty Allah called upon Iblees to explain his conduct and after having an explanation from him, which was found untenable, he was condemned and punished for all times to come. The principle of natural justice has to be applied in all kinds of proceedings strictly and departure therefrom would render subsequent actions illegal in the eye of law.

Pakistan International Airlines Corporation and others v. Nasir Jamal Malik and others 2001 SCMR 934 fol.

(b) West Pakistan Hill Tract Improvement Ordinance (VIII of 1961)---

----S. 14---Power of Chairman of Hazara Hill Tract Improvement Trust to resume plot for non-construction of building within prescribed period---Scope---Chairman without approval of Board of Trustees had no authority to resume plot.

(c) West Pakistan Hill Tract Improvement Ordinance (VIII of 1961)---

----S. 14---Constitution of Pakistan (1973), Art.199---Constitutionalpetition---Allotment of plot by Hazara Hill Tract Improvement Trust Board---Non-construction of building within period stipulated in sale-deed---Extension in time on payment of non-utilization fee---Publishing notice for sale of plot before issuance of order of its cancellation by Chairman of Trust without approval of Board of Trustees and providing opportunity of hearing to petitioner---Auction of plot in clandestine manner and confirmation of its sale in favour of higher bidder---Validity---Board in its meeting had not decided to cancel/resume plot, but had insisted upon recovery of non-utilization fee---Inclusion of petitioner’s plot in auction list was with mala fide intention as her sale-deed was intact and she had paid non-utilization fee much prior to such decision of Board---Chairman, without approval of Board of Trustees, had no authority to resume plot---Chairman had exercised jurisdiction illegally without adhering to prescribed procedure---Condemning of petitioner without issuing notice to her before cancellation of plot was based on mala fides---Mala fide though not pleaded specifically, was apparent on record---Judgment of High Court accepting Constitutional petition of petitioner was maintained by Supreme Court.

Aligarh Muslim University and others v. Mansoor Ali Khan AIR 2000 SC 2783 and Lahore Cantonment Cooperative Housing Society Limited, Lahore Cantt. v. Dr. Nusrat Ullah Chaudhry and others PLD 2002 SC 1068 ref.

Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104 rel.

(d) Mala fide---

----Mala fide must be pleaded specifically and proved as a question of fact---Where mala fide on the part of authority was apparent on the face of record, then Court of law seized of matter would not shut its eyes without taking notice thereof.

Government of Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 and Muhammad Bashir v. Abdul Karim PLD 2004 SC 271 fol.

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

----Art. 199---Contractual obligations, enforcement of---Constitutional petition---Maintainability.

Airport Support Services v. Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 and Ramna Pipe and General Mills (Pvt.) Ltd. v. Sui Northern Gas Pipe Lines (Pvt.) 2004 SCMR 1274 fol.

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

----O. XXXIX, Rr.1 & 2---Status quo order---Raising construction on disputed plot during continuance of status quo order without waiting for decision of Court---Validity---No vested right would accrue in favour of respondent to claim protection of law.

Industrial Development Bank of Pakistan v. Saadi Asmatullah 1999 SCMR 2874 ref.

Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104 rel.

Malik Manzoor Hussain, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellant (in Civil Appeal No.742 of 1998).

Abid Hussain Minto, Senior Advocate Supreme Court and Ch. Akhtar Ali Advocate-on-Record for Appellants (in Civil Appeal No.743 of 1998).

Farrukh Jawad Pani, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents (in both cases).

Dates of hearing: 14th and 15th December, 2004.

2005 S C M R 695

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Mian Shakirullah Jan, JJ

TASLEEM JAN and others---Petitioners

versus

MUHAMMAD ZAMAN and others---Respondents

Civil Petitions Nos.600-P to 602-P and 707-P to 709-P of 2004, decided on 31st December, 2004.

(On appeal from the judgment dated 26-5-2004 passed by the Peshawar High Court, Peshawar in Writ Petitions Nos.81 of 2002, 279 of 2003 and 437 of 2002).

Constitution of Pakistan (1973)---

----Arts. 199 & 212---North-West Frontier Province Service Tribunals Act (I of 1974), S.4---Constitutional petition---Civil service---Non-consideration of petitioner for promotion on ground of being ineligible challenged in Constitutional petition in High Court---Validity---Jurisdiction of Service Tribunal would be barred only where matter to be determined was fitness of a civil servant to hold an office---Fitness to hold an office was altogether different from eligibility to hold office---Where fitness of an officer to hold a higher post was a matter of comparative suitability in the light of quantification of performance as a result of subjective decision of competent authority based on objective principles, then same would relate only to his personal competence and performance on the job---Eligibility would relate purely to terms and conditions of service---Any right denied on basis of eligibility or otherwise could be challenged before Service Tribunal---Petitioner in Constitutional petition had asserted point of eligibility, which matter never related to fitness of an officer to hold a higher post---Only Service Tribunal had jurisdiction in such matter and not High Court---Supreme Court accepted appeal and set aside impugned judgment.

Mian Abdul Malik’s case 1991 SCMR 1129 rel.

Qazi Muhammad Anwar, Senior Advocate Supreme Court for Petitioners (in Civil Petitions Nos.601-P to 602-P of 2004).

Hafiz Aman, Advocate Supreme Court on behalf of Advocate-General N.-W.F.P. for Petitioners/State (in Civil Petitions Nos.707-P to 709-P of 2004) and for Respondents (in Civil Petitions Nos.600-P to 602-P of 2004).

Essa Khan, Advocate Supreme Court with M. Zahoor Qureshi, Advocate-on-Record for Respondent No.1 (in all Civil Petitions).

Nemo for other Respondents.

Date of hearing: 31st December, 2004.

2005 S C M R 699

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Mian Shakirullah Jan, JJ

Messrs M.K.B. INDUSTRIES (PVT.) LTD. and others---Appellants

versus

CHAIRMAN, AREA ELECTRICITY BOARD, WAPDA, (Peshawar Electric Supply Corporation Ltd.) (PESCO), Peshawar and others---Respondents

Civil Appeals Nos.219 to 229, 231 to 233 and 1443 of 1999 along with Civil Petition No.2981 of 2003, decided on 11th February, 2005.

(On appeal from the judgment/order, dated 25-11-1998 passed by Peshawar High Court, Peshawar in W.Ps. Nos.1349 and 1354 of 1996, 159, 215, 1187, 1198, 1209, 1231, 1237, 1238, 1341, 1356, 1380, 1585 of 1997 and 185 and 186 of 1998).

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

----Ss. 13(1), 12(2) & 25---Civil Procedure Code (V of 1908), S.11, Expln.IV---Constitution of Pakistan (1973), Arts.185(3) & 199---Concession of 50% rebate on electricity tariff allowed to industries established in Gadoon Amazai Industrial Estate till 28th August, 1999---Reduction in time limit upto 2nd June, 1997 by WAPDA---Earlier Constitutional petition challenging levy of surcharge and additional surcharge was dismissed by High Court, which order was upheld by Supreme Court---Second Constitutional petition by other consumers challenging validity of reduction in time limit on the plea that Supreme Court had earlier not entertained their plea for not having raised such point before High Court---High Court dismissed second Constitutional petition---Validity---Supreme Court had earlier unanimously resolved that withdrawal of 50% rebate was not hit by doctrine of promissory estoppel thus, same was not illegal; and that such withdrawal would continue to adversely affect other consumers---Such issue between parties had been finally heard and decided in previous round of litigation---Second Constitutional petition was, thus, barred by principle of constructive res judicata---Supreme Court dismissed appeal in circumstances.

Gadoon Textile Mills v. WAPDA 1997 SCMR 641; Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883 and Amanul Mulk v. Ghafoor-ur-Rehman 1997 SCMR 1796 fol.

Abdul Rauf Rohaila, Advocate Supreme Court (absent) and Tasleem Hussain, Advocate-on-Record (absent) for Appellant (in Civil Appeal No.219 of 1999).

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Abdul Latif Yousafzai, Advocate Supreme Court, Mian Gul Hassan Aurangzeb, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellant (in Civil Appeals Nos.220-223 of 1999).

Wasim Sajjad, Senior Advocate Supreme Court, Abdul Latif Yousafzai, Advocate Supreme Court and Mehr Khan Malik Advocate-on-Record for Appellants/Petitioners (in Civil Appeals Nos.224 to 226, 1443 of 1999 and C.P. No.2981 of 2003).

Muhammad Asif, Advocate Supreme Court and Syed Safdar Hussain, Advocate-on-Record (absent) for Appellants (in Civil Appeals Nos.227 to 229 and 232 to 233 of 1999).

Fateh M. Khan Advocate-on-Record for Appellant (in Civil Appeal No.231 of 1999).

Makhdoom Ali Khan, Attorney-General of Pakistan, Mian Allah Nawaz, Advocate Supreme Court, M. Zahoor Qureshi, Advocate-on-Record, M.A. Zaidi, Advocate-on-Record and M. Aslam Khan, S.O. WAPDA for Respondents.

Dates of hearing: 6th, 7th and 8th December, 2004.

2005 S C M R 710

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Mian Shakirullah Jan, JJ

MUHAMMAD NAWAZ and others---Appellants

versus

MUHAMMAD KHAN and others---Respondents

Civil Appeal No.1536 of 2000, decided on 8th February, 2005.

(On appeal from the judgment, dated 25-3-1999 passed by the Lahore High Court, Rawalpindi Bench in C.R. No.616 of 1994).

(a) Islamic Law---

----Gift---Kinds---Gift of corpus or only of usufruct of property---Determination---Islamic Law recognized both such gifts---Determination of question, whether gift was of corpus or only of usufruct of property, would depend upon facts of each case to be inferred from relevant evidence after discovering real intention of donor, but no hard and fast rule could be laid down for said purpose---Where gift was found to be of corpus of property, then any condition attached to such gift would be illegal, while gift itself would be perfectly valid---Mere fact that gift was “ ” or “ ” would not be sufficient by itself to hold that gift was only of unsufruct and not of corpus.

Nawazish Ali Khan v. Ali Raza Khan AIR (35) 1948 PC 134; Mst. Bibi Alam Taj and others v. Mst. Inayat Begum PLD 1963 (W.P.) Pesh. 199; Fateh Muhammad v. Nathu 1982 CLC 2082; Farid (represented by Heir) v. Mst. Nur Bibi PLD 1970 Lah. 502; Said Akbar and others v. Mst. Kakai PLD 1975 SC 37; Ch. Zahur Ilahi, M.N.A. v. Mr. Zulfikar Ali Bhutto and 2 others PLD 1975 SC 383; Mst. Kaneez Bibi and another v. Sher Muhammad and 2 others PLD 1991 SC 466; Abdul Hameed and 23 others v. Muhammad Mohiyuddin Siddique Raja and 3 others PLD 1997 SC 730 and Mst. Samia Naz and others v. Sheikh Pervaiz Afzal and others 2002 SCMR 164 rel.

(b) Islamic Law---

----Gift of corpus or only of usufruct of land---Proof---Gift of land by father in favour of his unmarried daughter with the condition that such gift would last till her death; that she would be entitled only to Paidawar (usufruct) of land; and that after her death land would revert to sons of donor---Held: Donor had not gifted corpus in land to donee, but had gifted her usufruct of land for her life time as she was unmarried.

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

----S. 115---Constitution of Pakistan (1973), Art.185---Appeal to Supreme Court---Gift---Nature---Revision by High Court---Scope---Concurrent finding of facts arrived at by two Courts below to the effect that gift was of usufruct and not of corpus---High Court set aside such findings without discussing relevant evidence and offering any reason for reaching a different conclusion---Validity---Such findings were neither perverse nor based on misreading or non-reading of any material available on record---High Court in exercise of its revisional jurisdiction was not competent to interfere with such finding of facts---Supreme Court accepted appeal and set aside impugned judgment while restoring judgment/decree passed by Trial Court.

Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291; Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818 and Abdul Rahim and another v. Mrs. Janatay Bibi and 13 others 2000 SCMR 346 rel.

Gulzarin Kiani, Advocate Supreme Court for Appellants.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondent No.1.

M. Munir Peracha, Advocate Supreme Court for Respondents Nos.2 and 4-A-F.

Respondents Nos.3, 5 to 11: Ex parte.

Date of hearing: 8th February, 2005.

2005 S C M R 716

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J. Javed Iqbal and Abdul Hameed Dogar, JJ

MUHAMMAD ISRARULLAH---Appellant

versus

ASSISTANT DIRECTOR, MANPOWERand others---Respondents

Civil Appeal No.115 of 2000, decided on 13th December, 2004.

(On appeal from the judgment of the N.-W.F.P. Service Tribunal, Peshawar dated 15-4-1999 passed in Appeal No.1832 of 1997)

(a) North-West Frontier Province Civil Servants Act (XVIII of 1973)---

----S. 2(1)(h)---Constitution of Pakistan (1973), Art.212(3)---Deputation---Lien of civil servant on permanent post in parent department---Termination---Appointment of civil servant as Inspector-Electrical (BS-14) on contract basis in borrowing department after his initial appointment and confirmation as Store Keeper in parent department---Termination of services of civil servant before his permanent absorption as Instructor---Civil servant claimed his lien on his original post as he had not been permanently absorbed as Instructor---Supreme Court granted leave to appeal to consider such contention in detail in the light of relevant law and precedent cases.

Syed Sajjad Hussain v. Secretary, Establishment Division 1996 SCMR 284 ref.

(b) Civil service---

----Lien of deputationist on his permanent post in parent department---Termination---Services of deputationist could not be terminated as he retained his lien in parent department for not having been confirmed in borrowing department---Principles illustrated.

Executive Engineer, Provincial Building Circle v. Muzaffar Bil Haq 2000 SCMR 656; Syed Sajjad Hussain v. Secretary, Establishment Division 1996 SCMR 284 and Mazhar Ali v. Federation of Pakistan 1992 SCMR 435 rel.

Khushdil Khan, Advocate Supreme Court for Appellant.

Hafiz Aman, Advocate Supreme Court for Respondents.

Date of hearing: 13th December, 2004.

2005 S C M R 720

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Hamid Ali Mirza and Sardar Muhammad Raza Khan, JJ

Mian MUHAMMAD TALHA ADIL----Appellant

versus

Mian MUHAMMAD LUTFI---Respondent

Civil Appeal No. 26 of 2000, decided on 24th March, 2004.

(On appeal from judgment of Lahore High Court, Lahore, dated 8-12-1999 passed in Regular First Appeal No. 13 of 1999).

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

----S. 24---Deposit of Zar-e-Soem---Object of S.24 of Punjab pre-emption Act, 1991, is to ascertain the capacity of an intending pre-emptor to purchase the property sought to be pre-empted and to secure advance payment to the extent of 1/3rd of the sale price with a view to ensure the payment of balance consideration in the event of a decree in the suit.

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

----S. 24---Constitution of Pakistan (1973), Art.185(2)(d)---Deposit of Zar-e-Soem---Defence Saving Certificates, purchase of---Power of Trial Court to invest Zar-e-Soem in profit bearing scheme---Pre-emptor instead of depositing Zar-e-Soem in cash, purchased the certificates by the order of Trial Court and deposited the same within the specified period---After framing of issues, on the application of vendee, the Trial Court dismissed the suit for non-deposit of Zar-e-Soem in cash---High Court set aside the judgment and decree passed by the Trial Court and remanded the case to Trial Court for decision afresh---Plea raised by the vendee was that the pre-emptor under S.24 of Punjab Pre-emption Act, 1991, could only deposit cash amount---Validity---Language used in S.24 of Punjab Pre-emption Act, 1991, spoke of deposit of 1/3rd (Zar-e-Soem) of sale price in cash but no exception could be taken to the power of Trial Court to invest the amount deposited by a pre-emptor in a profit bearing security after enforcing the payment of the amount in cash---Trial Court was ill-advised to pass order permitting the pre-emptor to purchase the Defence Saving Certificates and place the same on record---Pre-emptor, after compliance of the order and having placed Defence Saving Certificates on record of the Trial Court, could neither be held guilty of wilful default nor non-compliance of the order of the Trial Court which was sine qua non for attracting the penal provision contemplated by law---High Court had fully appreciated the factual and legal position and jurisdiction exercised by High Court did not suffer from any inherent defect or error of jurisdiction or of law---Supreme Court, in circumstances, declined to interfere with the exercise of discretion by High Court unless the same had been exercised in gross violation of settled norms for administration of justice---Judgment passed by High Court neither suffered from arbitrariness nor from unreasonable interpretation of the provision of law---Complete justice having been done in the matter and the suit having been remitted to Trial Court for decision on merits did not cause prejudice to the vendee, who would be at liberty to agitate all other issues of fact and law raised in pleadings---Neither any miscarriage of justice had been occasioned by the judgment of High Court nor did it suffer from misreading of record or misconstruction of law---Appeal was dismissed.

(c) Act of Court---

----Effect---No person should suffer for act or omission of Court and act of Court should not prejudice anyone.

Muhammad Hanif v. Muhammad PLD 1990 SC 859; Fateh Khan v. Bozemir PLD 1991 SC 782; Abdur Rashid v. Abdul Salam 1991 SCMR 2012; Sherin v. Fazal Mehmood 1995 SCMR 584; Iftikhar Beg v. Muhammad Azam 1996 SCMR 767; State v. Asif Adil 1997 SCMR 209; Muhammad Mansha v. Sabir Ali 1999 SCMR 1782; Muhammad Iqbal v. Khan Muhammad PLD 1999 SC 35; Zahoor Textile Mills Ltd. v. Federation of Pakistan PLD 1999 SC 880; Imran Ashraf v. State 2001 SCMR 424; Ladha Khan v. Mst. Bhiranwan 2001 SCMR 533; Ghulam Hussain v. Jamshed Ali 2001 SCMR 1001; Fida Hussain v. State PLD 2002 SC 46 and Dar Okaz Printing and Publishing Ltd. v. Printing Corporation of Pakistan PLD 2003 SC 808 ref.

Hakam Qureshi, Advocate Supreme Court for Appellant.

Mehfoofzul Haq Khan, Advocate Supreme Court for Respondent.

Date of hearing: 24th March, 2004.

2005 S C M R 726

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

MUMTAZ AHMAD KHAN---Petitioner

versus

GHULAM NABI and others---Respondents

Civil Petitions for Leave to Appeals Nos.901/L to 903/L of 2000, decided on 25th March, 2003.

(On appeal from judgment dated 22-2-2000 of the Lahore High Court, Bahawalpur Bench, Bahawalpur, passed in Civil Revisions Nos.48/D, 49/D and 47/D of 1999 respectively).

Specific Relief Act (I of 1877)---

----S. 12---Constitution of Pakistan (1973), Art.185(3)---Question of fact, determination of---Concurrent findings of fact by the Courts below---Plaintiff sought specific performance of agreement to sell the suit plot while the defendants claimed the plot to be non-transferable---Judgment and decree passed by Trial Court in favour of the plaintiff was maintained by Appellate Court as well as by High Court---Plea raised by the defendants was that the disputed plot was non-transferable and the agreement was violative of the terms and conditions of the allotment---Validity---Disputed plot was an exempted one and there was no prohibition on its transfer---Execution of the agreement had been substantiated on record through confidence inspiring evidence---Question of fact had been determined by the two Courts below which determination had been maintained by High Court by advancing cogent reasons---Defendants failed to point out any illegality or legal infirmity in the judgments warranting interference by Supreme Court---Leave to appeal was refused.

Sh. Naveed Sharyar, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners (in C.Ps. Nos.901/L and 902/L of 2000).

Ch. Ikramul Haq Nasim, Advocate-on-Record for Petitioner (in C.P. No.903/L of 2000).

Nemo for Respondents.

Date of hearing: 25th march, 2003.

2005 S C M R 728

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Muhammad Nawaz Abbasi and Faqir Muhammad Khokhar, JJ

CHAIRMAN, BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, BAHAWALPUR and another---Petitioners

versus

RIZWAN RASHID and 3 others---Respondents

Civil Petition No.2012-L of 2001, decided on 16th July, 2002.

(On appeal from the judgment of Lahore High Court, Lahore, dated 16-4-2001 passed in I.C.A. No.78 of 2000).

(a) Calendar of Board of Intermediate and Secondary Education Bahawalpur---

----Chap. VI, Rr.10, 18, 25 & 27---Constitution of Pakistan (1973), Art.185(3)---Educational institution---Conduct of examination---Parts system of intermediate examination---“Wilful non-appearance” and “non-participation” in examinations---Distinction---Candidates having passed intermediate examination Part I in year, 1997 had appeared in Part II examination in year, 1998---Board authorities proceeded against the candidates on the charge of using unfair means in Part-II examination and imposed penalty of disqualification from appearing in four examinations---Candidates availed remedy of appeal and revision but remained unsuccessful and on completion of period of their disqualification, submitted admission forms for appearing in Intermediate Examination Part-II annual, 2000---Board refused to entertain their admission forms and did not permit the candidates to sit in Part-II of the examination with the remarks that their result of Part-I examination held in the year, 1997 would be deemed to be cancelled for their non-appearance in four examinations as provided in R.27 of Rules of Conduct of Intermediate Examination as notified by the Board of Intermediate and Secondary Education, Bahawalpur and without first appearing in part-I of Intermediate Examination as fresh candidates, they were not entitled to appear in Part-II examination---Validity---Final result in parts system of Intermediate Examination was compiled on the basis of result of both parts and pass certificate was issued as provided under Rr.18 & 25 of Calendar of Board of Intermediate and Secondary Education, Bahawalpur---Disqualification mentioned therein would not be read in R.27 of Calendar of Board of Intermediate and Secondary Education, Bahawalpur which was entirely independent and had no nexus either with Rr.18 & 25 of the said Rules or with R.10(vi) Chap.VI (Conduct of Examination) of Calendar of Board of Intermediate and Secondary Education, Bahawalpur---Clear distinction existed between wilful non-appearance in examination as provided under R.27 Calendar of Board of Intermediate and Secondary Education, Bahawalpur and non-participation in examination under compelled circumstances, therefore, the provisions of R.10 of Calendar of Board of Intermediate and Secondary Education, Bahawalpur could not be invoked in a case in which the non-appearance of candidate was not voluntary---Supreme Court, keeping in view the beneficial interpretation of statutes, held that imposition of penalty on the candidates provided under R.27 of Calendar of Board of Intermediate and Secondary Education, Bahawalpur would be unreasonable and unjust, therefore, no such construction could be placed on the rule by implication and declined to push the candidates back to the position prior to year, 1997 as in such eventuality, they would be losing another couple of years of their educational career---Judgment of High Court passed in Intra-Court Appeal was maintained and leave to appeal was refused.

(b) Interpretation of statutes---

----Rights of subjects---Punitive and permissive provisions---Applicability---Law which touches upon the rights of the subjects must be construed strictly and nothing should be deemed or presumed in the said law unless it is covered through the express words---Punitive provision as compared to permissive provision must be construed liberally so as to lean towards the beneficial interpretation---Penal provision in a statute cannot be imported to another provision and attracted unless it is specifically made applicable and in any case if there are two interpretations, the interpretation favourable to the subject should be accepted.

Masud Ashraf Sheikh, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 16th July, 2002.

2005 S C M R 733

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

NOOR AKBAR through SARDARAN MAI and others---Petitioners

versus

Mst. GULLAN BIBI---Respondent

Civil Petition for Leave to Appeal No.483/L of 2003, decided on 8th April, 2003.

(On appeal from the judgment, dated 6-1-2003 of the Lahore High Court, Lahore, passed in Civil Revision No.93/D of 1991).

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

----S. 115---Constitution of Pakistan (1973), Art.185(3)---Revision admitted for regular hearing by High Court---Dismissal for non-prosecution---Concurrent findings of fact by the Courts below---Contention of the petitioner was that his revision having been admitted for regular hearing by High Court, could not have been dismissed for non-prosecution---Validity---Order of the High Court reflected that even on last date nobody was present from the petitioner’s side---No illegality had been committed by High Court in deciding the civil revision on merits.

(b) Islamic Law---

----Gift---Execution---Registration---Validity---Execution of gift and its registration had been substantiated through confidence inspiring evidence produced by the respondent---Question of fact had been determined by the two Courts below after scanning the entire evidence and the same had been upheld by High Court by advancing cogent reasons---Leave to appeal was refused.

Ch. Ihsan-ul-Haq Bhatti, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 8th April, 2003.

2005 S C M R 735

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

JAVAID ARSHAD ABID----Petitioner

versus

STATION HOUSE OFFICER and others---Respondents

Civil Petition No.1052/L of 2002, decided on 19th March, 2003..

(On appeal from the order, dated 27-2-2002 of the Lahore High Court (Bahawalpur Bench) passed in W.P. No.3276/2002/BWP).

Criminal Procedure Code (V of 1898)---

----S. 550---Custody of car on Superdari---Disputed car was neither used in commission of any offence nor any F.I.R. regarding its theft was registered---Petitioner claiming to have purchased such car which had remained in his possession till same was taken into custody by Anti-Car Lifting Staff of Police---No other claimant had come forward---Custody of car was ordered to be handed over to petitioner on Superdari on furnishing surety.

Ch. Muhammad Arshad Ramay, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Petitioner.

Abdul Sattar, Sub-Inspector, P.S. City Sadiqabad for Respondents.

Date of hearing: 19th March, 2003.

2005 S C M R 737

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad, C.J., Nazim Hussain Siddiqui and Qazi Muhammad Farooq, JJ

Begum KALSOOM NAWAZ and others---Petitioners

versus

ELECTION COMMISSION OF PAKISTAN and others---Respondents

C.Ps. Nos.3502-L, 3504-L, 3506-L, 3507-L, 3508-L and 3509-L of 2002, decided on 7th October, 2002.

(On appeal from the order dated 27-9-2002 of the Lahore High Court, Lahore passed in W.Ps. Nos.17269, 17268, 17270, 17271, 17272 and 17273 of 2002).

Constitution of Pakistan (1973)---

----Art. 185(3)---Election---Nomination papers, rejection of---Election process in progress---Candidates had assailed rejection of their nomination papers---Validity---Only two days were left for holding of elections, the election process was in progress and more than 98% of ballot-papers had been printed---Supreme Court declined to interfere on account of paucity of time---Leave to appeal was refused.

Ashtar Ausaf Ali, Advocate Supreme Court for Petitioners.

Makhdoom Ali Khan, Attorney-General for Pakistan Assisted by Dr. Danishwar Malik, D.A.-G. and Khuram Mumtaz Hashmi, Advocate for Respondents.

Date of hearing: 7th October, 2002.

2005 S C M R 738

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Javed Iqbal and Faqir Muhammad Khokhar, JJ

MUHAMMAD KHAN----Petitioner

versus

SALEHUN alias SALEH MUHAMMAD---Respondent

Civil Petitions Nos.309 and 311/L of 2003, decided on 10th June, 2003.

(On appeal from the judgment dated 6-11-2002 of the Lahore High Court passed in R.S.A. No.13/1999 and C.R. No.313/1999).

Specific Relief Act (I of 1877)---

----S. 12---Limitation Act (IX of 1908), S.14 & Art.113---Constitution of Pakistan (1973), Art.185(3)---Suit for specific performance of agreement to sell---Limitation---Agreement to sell was executed on 13-12-1976---Plaintiff on 31-1-1977 filed application for making award rule of Court in respect of sale agreement---Trial Court dismissed the application adjudging sale agreement to be forged---Plaintiff on 8-8-1988 filed suit for specific performance of sale agreement in view of the observation made by Supreme Court in a petition filed against dismissal of such application by Courts below that sale agreement should not have been adjudged to be forged in arbitration proceedings, for which plaintiff, if so wanted, could seek remedy on basis thereof---Defendants’ objection was that suit was time-barred---Trial Court decreed suit, which decree was upheld by Appellate Court and in revision by High Court---Contention of defendant was that question of limitation had not been decided in accordance with law as Courts below had mechanically proceeded on assumption as if such observation of Supreme Court did constitute a decision about condonation of delay in filing suit, while such question should have been decided independently keeping in view facts and circumstances of case; that arbitration proceedings suffering from mala fide could not be termed to be proceedings prosecuted in good faith; and his evidence had been closed, but certified copies of arbitration proceedings produced in evidence found mention therein a finding to the effect that there was no arbitration agreement, but Courts below had not applied their mind to such aspect of the case that plaintiff was not prosecuting such application in good faith---Supreme Court granted leave to appeal to examine, inter alia, such points raised by defendant.

Akhtar Masood Khan, Advocate Supreme Court and Tanvir Ahmad Khan, Advocate-on-Record for Petitioner.

Date of hearing: 10th June, 2003.

2005 S C M R 741

[Supreme Court of Pakistan]

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

GHULAM KHAN and 2 others---Petitioners

versus

PROVINCE OF PUNJAB through Collector, Attock and another---Respondents

Civil Petition No.802 of 2001, decided on 10th September, 2002.

(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, dated 4-12-2000 passed in C.R. No.2 of 1982).

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

----Ss. 2(2) & 3---Constitution of Pakistan (1973), Art.185(3)---Land not available for transfer---Disputed question of fact---Grievance of plaintiff was that the suit land was available for transfer and the matter pertaining to suit-land was pending at the time of promulgation of Evacuee Property and Displaced Persons (Repeal) Act, 1975---Notified Officer rejected the claim of plaintiff and civil suit filed by him was also dismissed by Trial Court---Judgment and decree passed by Trial Court was maintained by Appellate Court and High Court---Validity---Settlement authorities had found that the property was not available for disposal under Evacuee Property and Displaced Persons (Repeal) Act, 1975, therefore, the factual controversy regarding the character of property stood resolved---Trial Court having come to the same conclusion, it dismissed the suit which was further upheld by Appellate Court in appeal and by High Court in the civil revision, therefore, the same would call no interference by Supreme Court---Leave to appeal was refused.

Kh. Muhammad Farooq, Advocate Supreme Court and M.A. Zaidi, Advocate-on-record for Petitioners.

M. Munir Paracha, Advocate Supreme Court for Respondent No.2.

Date of hearing: 10th September, 2002.

2005 S C M R 745

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

MAQSOOD AHMED----Petitioner

versus

MUHAMMAD NAZIR alias NAZIR ALI and another---Respondents

Criminal Petition No.7/L of 2003, decided on 13th May, 2003.

(On appeal from judgment of the Lahore High Court, Multan Bench, Multan, dated 28-11-2002 passed in Crl. Misc. No.2326/B of 2002).

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/324/337-F(iii)/ 337-L(2)/365/365-A/148/149/109---Constitution of Pakistan (1973), Art.185(3)---Post-arrest bail, grant of---Petition for cancellation of bail before Supreme Court---High Court had given cogent reasons while extending the concession of bail to accused---No justification warranting interference by Supreme Court in the impugned judgment could be pointed out---Leave to appeal was refused to complainant accordingly.

Munir Ahmed Bhatti, Advocate Supreme Court and Muhammad Ozair Chughtai, Advocate-on-Record for Petitioner.

Ch. Mehdi Khan Mehtab, Advocate-on-Record for Respondents.

Date of hearing: 13th May, 2003.

2005 S C M R 746

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

Messrs MASOOM INDUSTRIES and others---Petitioners

versus

HABIB BANK LIMITED and another---Respondents

Civil Petition No.3931-L of 2002, decided on 17th December, 2002.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 14-11-2002 passed in E.F.A. No.143 of 2001).

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

----S. 47 & O.XXI, R.66---Constitution of Pakistan (1973), Art.185(3)---Proclamation of sale---Conducting auction on the date other than the date specified by Executing Court---Setting aside of such auction---Non-deciding of objection petition---Date fixed for auction by Executing Court was 11-5-2000, whereas the auction took place on 13-5-2000---Grievance of judgment-debtor was that without deciding objection petition filed by him, the Executing Court confirmed the auction---Plea raised by the judgment-debtor was that there were many intended buyers who could not take part due to non-conducting of auction on the date specified by Executing Court---Validity---If auction as per schedule given by Executing Court was not notified to take place on 11-5-2000, there was no question of any person as intending purchaser to have come to know that the property was going to be auctioned on 11-5-2000---Even if such purchaser knew about schedule of the Court that the property would be auctioned on 11-5-2000, and if he had approached the auctioneer of the Court, he would have known that the property was scheduled to be auctioned by the auctioneers on 13-5-2000---Even if the objection petition had been restored and the grounds urged therein were taken into consideration, the same were not sufficient grounds under the law for setting aside the auction itself as the property was not auctioned earlier to the date fixed by the Court but two days later which did not adversely affect the auction proceedings---Decree was passed as far back as 1998, and the judgment-debtor did not make any effort to pay the decretal amount or any part thereof despite lapse of five years---Sale of the property, in the present auction proceedings which had been confirmed, had been held to have been made by publication of due notice by the auctioneers as required by law---Sale of the property and auction proceedings did not suffer from any illegality justifying interference by Supreme Court---Leave to appeal was refused.

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

----O. XXI, R. 66---Sale by auction---Date---Bona fide mistake of Court officials---Judgment-debtor sought setting aside of sale on the ground that the date specified by Executing Court was 11-5-2000, whereas the auction was conducted on 13-5-2000---Order of the Court issued by the officer of the Court to the auctioneers showed that the auction was to be made on 13-5-2000---In the order of Executing Court laying down the schedule, it was however provided that the auction would take place on 11-5-2000---Effect---Such was a bona fide mistake of the officer of the Court that the Court auctioneers were not intimated that the auction would be held on 13-5-2000, therefore, if bonafidely acting on such Court intimation, the auction was held on 13-5-2000, no bad intention or mala fides could be attributed to the Court auctioneers.

C.M. Latif, Advocate-on-Record for Petitioners.

Iqbal Hamoodur Rehman, Advocate Supreme Court and Mahmood-ul-Islam, Advocate-on-Record for Respondent No.1.

Saleem Sehgal, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Respondent No.2.

Date of hearing: 17th December, 2002.

2005 S C M R 750

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Khalil-ur-Rehman Ramday, JJ

EHSAN-UL-HAQ----Petitioner

versus

THE STATE---Respondent

Criminal Petition No. 135-L of 2003, decided on 26th May, 2003.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 27-1-2003 passed in Criminal Miscellaneous No. 6804-B of 2002).

Criminal Procedure Code (V of 1898)---

----S. 497---Constitution of Pakistan (1973), Art. 185(3)---Bail, grant of---Accused had allegedly instigated the co-accused to make interpolation in the bank challan and the indemnity bond was released on the documents submitted by the co-accused one of which was also signed by the accused---Accused was neither Clearing Agent nor otherwise was authorized by the co-accused Clearing Agent to get the indemnity bond cleared---Offence was punishable with three years’ R.I. and the accused was in Jail for the last eight months---Case of accused was not distinguishable from that of his co-accused who had already been granted bail---Accused was admitted to bail in circumstances.

Saif-ul-Malook, Advocate Supreme Court and Muhammad Ozair Chughtai, Advocate-on-Record for Petitioner.

Ch. Nazir Ahmed, Advocate Supreme Court and Syed Muhammad Ali, Investigating Officer for the State.

Date of hearing: 26th May, 2003.

2005 S C M R 752

[Supreme Court of Pakistan]

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

AGRICULTURE DEVELOPMENT BANK OF PAKISTAN through Chairman and another---Petitioners

versus

AKIF JAVED---Respondent

Civil Petition No.2222 of 2001, decided on 3rd January, 2003.

(On appeal from the judgment of Federal Service Tribunal, Islamabad, dated 31-3-2001 passed in Appeal No.139-R-CE of 2000).

Agriculture Development Bank of Pakistan Officers Service (Efficiency and Discipline) Regulations, 1975---

----R. 4(b)(ii)---Service Tribunals Act (LXX of 1973), Ss.4 & 5---Constitution of Pakistan (1973), Art.212(3)---Modification of penalty---Jurisdiction of Service Tribunal---Illegal gratification---Proof---Regular inquiry, non-holding of---Respondent was employee of Agriculture Development Bank of Pakistan and he was dismissed from service---Allegation against the respondent was that he obtained illegal gratification from a person for providing him employment in the Bank---Show-cause notice was issued to the respondent by Authorized Officer on the basis of finding of Inquiry Officer in preliminary inquiry in which neither the respondent nor the complainant was examined---Competent authority without holding regular inquiry and providing proper opportunity to the respondent to defend himself, passed final order of dismissal from service on the ground that the respondent acknowledged receipt of money from the complainant---Service Tribunal accepted the appeal partially and modified the penalty of dismissal from service into compulsory retirement---Validity---Neither the respondent was in a position to appoint any person in the bank nor the bank had placed any material on record to show that the respondent was competent to make appointment in the Bank and it was not established from the existing record as to what was the true nature of transaction between the respondent and the complainant and in what manner the respondent misused his official position or brought disrepute to the Bank---Service Tribunal in exercise of its jurisdiction under S.5 of Service Tribunals Act, 1973, rightly modified the punishment of dismissal from service to compulsory retirement---Scope of appeal before Supreme Court under Art.212(3) of the Constitution was very limited to interfere in such matters---Service Tribunal had not exercised jurisdiction in arbitrary manner while granting relief of converting the penalty of dismissal from service into compulsory retirement and Supreme Court refused to interfere in the same---Leave to appeal was refused.

Pakistan Railways v. Ghulam Rasul 1997 SCMR 1581 rel.

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

M. Aslam Uns, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate-on-Record for Respondent.

Date of hearing; 3rd January, 2003.

2005 S C M R 756

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad, C.J., Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

MUHAMMAD ARSHAD and others----Petitioners

versus

THE STATE---Respondent

Criminal Petition No.355-L of 2003, decided on 22nd December, 2003.

(On appeal from the order, dated 24-4-2003 of the Lahore High Court, Multan Bench, passed in Criminal Miscellaneous No. 302-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---Accused were named in the F.I.R. with the specific role of causing injuries to the deceased with their hatchets---Accused having been found guilty during police investigation, their case was not at par with other co-accused who were granted bail---Offences with which the accused were charged were hit by the prohibition contained in S.497(1), Cr.P.C.---Bail was declined to accused in circumstances.

Ch. Muhammad Yaqub Sindhu, Advocate Supreme Court for the Petitioners.

Mrs. Salma Malik, A.A.G. for the State.

Date of hearing: 22nd December, 2003.

2005 S C M R 758

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

DEPUTY DIRECTOR, FOOD, BAHAWALPUR and others---Petitioners

versus

KHALID MEHMOOD JABLA---Respondent

Civil Petition No.3828-L of 2002, decided on 8th January, 2003.

(On appeal from the judgment dated 28-8-2002 of the Punjab Service Tribunal, Lahore, passed in Appeal No.2814 of 2001).

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

----S. 5---Constitution of Pakistan (1973), Art.212(3)---Modification of penalty---Jurisdiction of Service Tribunal---Plea raised by the authorities was that the Service Tribunal could not set aside the penalty of compulsory retirement awarded to civil servant---Validity---Leave to appeal was granted by Supreme Court to consider; whether major penalty of retirement could have been set aside which was imposed after completion of all mandatory formalities as envisaged under Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 by the Service Tribunal without any lawful justification by ignoring the factual findings of departmental authority.

Aziz Ahmed Chughtai, Advocate Supreme Court and Rao Muhammad Yusuf Khan, Advocate Supreme Court for Petitioners.

Respondent in person.

Date of hearing: 8th January, 2003.

2005 S C M R 760

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Khalil-ur-Rehman Ramday, JJ

GHULAM MUHAMMAD and others----Petitioners

versus

COMMISSIONER, LAHORE DIVISION and others ---Respondents

Civil Petition Leave to Appeals Nos.1970 to 1981/L of 2003, decided on 22nd December, 2003.

(On appeal from a consolidated judgment, dated 1-4-2003 passed by the Lahore High Court in I.C.As. Nos. 240 to 251 of 1994).

Punjab Acquisition of Land (Housing) Act (VIII of 1973)---

----Ss. 7, 11 & 14---Arbitration Act (X of 1940), Ss. 30 & 33---Punjab Acquisition of Land (Housing) (Repeal) Act (XII of 1985), S.3---Constitution of Pakistan (1973), Art.185(3)---Land acquisition---Award---Compensation, entitlement to---Declaratory decree deciding question of title in favour of respondent---Amendment of award in terms of decree---Petitioner filed Constitutional petition with prayers to set aside order of amendment of award and to restrain authority not to give effect to decree---High Court with consent of parties referred matter to arbitrator to decide question as to who was entitled to land---Arbitrator in award gave finding that such decree should be honoured---Award was upheld by High Court---Validity---Declaratory decree had become final between parties as to their right in land---Such decree could be given effect to by all concerned authorities, who were to award compensation in lieu of land acquired---Petitioner in Constitutional petition had prayed for a direction contrary to the rights determined by Civil Court in a suit between parties---No direction could be given to authorities to act contrary to decree---Granting such relief would amount to directing persons performing functions in connection with affairs of the Province to refrain from doing what law required them to do---Arbitrator by rendering such finding had not misconducted himself in the proceedings---By referring matter to arbitrator, finding of decree had not diluted and matter did not stand re-opened---Award had been delivered, but compensation had not been granted to any party, thus, proceedings had not been finalized under Punjab Acquisition of Land (Housing) Act, 1973---Authority was bound to honour decree of Civil Court and give compensation to person, who was declared to be owner of land---Supreme Court dismissed petition and refused leave to appeal.

Dr. Abdul Basit, Advocate Supreme Court for Petitioners.

Rashid Ahmad, Advocate Supreme Court for Respondent No.2.

Umar Atta Bandial, Advocate Supreme Court for Respondents Nos. 3 to 6 and 8 to 10.

Date of hearing: 22nd December, 2003.

2005 S C M R 766

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

KHURRAM SHAFI---Petitioner

versus

Mst. INAYAT BIBI and others---Respondents

Civil Petition for Leave to Appeal No.722/L of 2003, decided on 27th March, 2003.

(On appeal from the order, dated 27-2-2003 of the Lahore High Court, Lahore, passed in Writ Petition No.2290 of 2000).

Criminal Procedure Code (V of 1898)---

----S. 550---Specific Relief Act (I of 1877), Ss.12 & 54---Custody of vehicle on Superdari---Police intercepted vehicle from petitioner---Suit filed by petitioner was dismissed, wherein he had prayed that vehicle be not taken from him---Petitioner sought Superdari of vehicle on the ground that he had purchased same through oral agreement from respondent owner---Magistrate granted Superdari of vehicle to petitioner, which order was upheld by Revisional Court, but was set aside by High Court in Constitutional petition---Validity---Civil Judge while dismissing suit observed that petitioner had not produced any agreement to sell to have been made between parties with regard to vehicle; and as question of title was in dispute, suit for permanent injunction was not maintainable, rather he should have filed suit for specific performance of agreement---Petitioner had not challenged such judgment before any higher forum, which had attained finality---Petitioner had not brought a single document worth consideration on record as to substantiate his claim---Impugned order did not suffer from any illegality or legal infirmity warranting interference---Supreme Court dismissed petition and refused leave to appeal in circumstances.

Zahid Hussain Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 27th March, 2003.

2005 S C M R 768

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ

GOVERNMENT OF PUNJAB and others---Petitioners

versus

Dr. NAVEEDA TUFAIL and others---Respondents

Civil Review Petitions Nos.142, 153 to 224 of 2002, decided on 9th January, 2003.

(On appeal from the judgment of this Court dated 25-9-2002 passed in Civil Petitions Nos.1093 to 1117 of 2002, 1135 to 1141 of 2002, 1169 to 1183 of 2002, 1190 to 1214 of 2002 and 1229 of 2002).

Constitution of Pakistan (1973)---

----Art. 188---Supreme Court Rules, 1980, O.XXVI--- Review of Supreme Court judgment---No patent error on the face of record or a legal ground for review of the judgment was found---All the grounds taken in support of the review petition had already been considered in the judgment under review---Supreme Court noted it with concern that after lapse of considerable period, relevant quarters in Government of Punjab had taken no steps for implementation of the judgment under review---Supreme Court directed the concerned authorities in the Government of Punjab to ensure implementation of the judgment within one month---Review petition was dismissed.

Maqbool Elahi Malik, Advocate-General, Punjab with Tariq Mahmood Khokhar, Additional Advocate-General, Punjab and Rao Muhammad Yousaf Khan, Advocate-on-Record (absent) for Petitioners (in all cases).

Muhammad Akram Sheikh, Senior Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Respondent No.1 (in C.R.P. No.142 of 2002).

Nemo for Respondents (in C.R.Ps. Nos.153 to 224 of 2002).

Date of hearing: 9th January, 2003.

2005 S C M R 770

[Supreme Court of Pakistan]

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

GUL MUHAMMAD---Petitioner

versus

IBRAHIM and others---Respondents

Civil Petition No.3906/L of 2001, decided on 25th March, 2003.

(On appeal from the judgment, of the Lahore High Court, Multan Bench, Multan, dated 25-10-2001 passed in C.R. No.125 of 2001).

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Islamic law---Inheritance---Plaintiff claimed that defendant was not entitled to inherit share in property of his deceased father as defendant being son of his step-mother was born after her marriage with second husband---Courts below concurrently found, on basis of evidence on record, that defendant was born from step-mother during subsistence of her Nikah with deceased father of plaintiff---Such findings did not suffer from any illegality---Supreme Court dismissed petition and refused leave to appeal.

Nazir Ahmed Qureshi, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 25th March, 2003.

2005 S C M R 772

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

Mst. MUSSARRAT BIBI---Petitioner

versus

TAJ DIN and others---Respondents

C.P. No.434-L of 2003, decided on 17th June, 2004.

(On appeal from judgment dated 11-12-2002 of the Lahore High Court passed in Civil Revision No.1440 of 2001).

Civil Procedure Code (V of 1908)---

----Ss. 115, 9 & O.XIV, R.1---Revision---Scope---Issue with regard to jurisdiction of Civil Court was neither framed nor was any step taken by defendant to claim such issue---Effect---No such objection could be entertained at revision stage.

Ch. Inayatullah, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioner.

Arif Chaudhry, Advocate Supreme Court and Ch. Talib Hussain, Advocate-on-Record for Respondent No.1.

Nemo for Respondents Nos.2 to 4.

Date of hearing: 17th June, 2004.

2005 S C M R 774

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Mian Shakirullah Jan, JJ

GOVERNMENT OF N.-W.F.P. and others---Petitioners

versus

FARMAN ALI and others---Respondents

Civil Petitions Nos.366-P and 369-P of 2003, decided on 4th March, 2005.

(On appeal from a common judgment, dated 21-4-2003 passed by the learned Service Tribunal, N.-W.F.P., Peshawar in Appeals Nos.150 and 151 of 2002).

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

----S. 4---Balochistan Service Tribunals Act (V of 1974), S.4---Appeal before Service Tribunal---Maintainability---Civil servant challenging order of departmental authority on merits---Validity---Appeal against quantum of punishment in the Provinces of North-West Frontier Province and Balochistan, lies only where the penalty imposed was dismissal from service, removal from service or compulsory retirement---In case of no other punishment a civil servant could file appeal challenging quantum of sentence alone---Appeal exclusively challenging quantum of punishment was barred and not the appeal on merits of the case challenging the very conviction---If holding guilty of a civil servant by departmental authority was accepted and appeal was preferred before Service Tribunal against the quantum of punishment alone, it was clearly barred under the laws applicable to North-West Frontier Province and Balochistan---No bar existed against challenging the conviction on merits regardless of what punishment had been imposed---Where civil servants had challenged before Service Tribunal the orders of departmental authority both on merits as well as the quantum of sentence, appeal was competent.

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

----S. 4---Appeal before Service Tribunal---Limitation---Filing of miscellaneous application---Departmental representation was decided on 27-2-2001, whereas appeal before Service Tribunal was filed on 11-3-2002---Civil servants filed application seeking explanation about what had already been given in the order dated 27-2-2001---Effect---Such explanation could have been asked for even after filing of appeal before Service Tribunal and moreover, it could be asked even through the Tribunal seeking comments of department in writing---Appeal before Service Tribunal was time-barred.

Muhammad Hashim's case 1990 SCMR 1440; Malik Muhammad's case 1992 SCMR 1136 and Khalid Wahid's case 1998 SCMR 1153 ref.

(c) Words and phrases---

---'a' and 'the'---Applicability---Article 'a' is generally used for generalizing the number in plural sense and not particularizing the same as is done by the article 'the'.

Words and Phrases Permanent Edition Vol. 1; U.S. v. Hudson 65 F.58, 71; First Trust Joint Stock Land Bank of Chicago v. Armstrong 269 NW, 502, 506, 222 Iowa 425, 107 ALR 873; State v. Martin 30 S.W. 421, 422, 423, 60 Ark. 343, 28 L.R.A. 153; People v. One 1940 Buick Sedan, 162, p.2d, 318, 320, 71, C.A.2d, 160, Sanders, 54 Law J.Q.B. 331, 333; National Union Bank v. Copeland 4 N.E. 794, 795, 141, Mass. 257, 267; Crown Coach Co. v. Public Service Commission 179 S.W.2d, 123, 127, 238, Mo.App.387, Bourland v. First Nat. Bank Bldg. Co. 237 S.W. 681, 683, 152 Ark. 139; Lindley v. Murphy 56 N.E.2d, 832, 838, 387, 111, 506 and Dobbs v. Board of County Com'rs of Oklahoma Country 257 P.2d 802, 809, 208 Okl. 514 ref.

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

----S. 4 (1)(b)(i)---Reduction to lower stage---Use of word 'a'---Effect---Civil servants were proceeded against departmentally and penalty of reduction to minimum of time scale was imposed---Departmental representation was decided on 27.2.2001, whereas appeal before Service Tribunal was filed on 11.3.2002---Appeal before Service Tribunal was partly allowed and penalty was converted into stoppage of three increments without cumulative effect---Plea raised by the authorities was that penalty to any lower stage and not to only one stage below, could be imposed under S.4 (1)(b)(i) of North-West Frontier Province Service Tribunals Act, 1974---Validity---Word 'a' used in S.4 (1)(b)(i) of North-West Frontier Province Service Tribunals Act, 1974, denoted the word 'any' and not 'one'---If Legislature intended reduction to one lower stage in time scale, it was not at all difficult for law-maker to have used the word 'one' instead of 'a' or to have used the article 'the' instead of 'a'---Using word 'a' for a lower stage in time scale, the intention of Legislature was never restricted to one lower stage, rather, it was generalized to any lower stage in such time scale availed by civil servant---Reduction to minimum of time scale was not unlawful---Departmental authority had lawfully reduced the civil servants to the lowest stage in time scale and their appeals before Service Tribunal were time-barred---Supreme Court converted petition for leave to appeal into appeal and set aside the judgment passed by Service Tribunal and that of departmental authority was restored---Appeal was allowed.

The Commandant, 502, E.M.E. Central Workshop, Rawalpindi 1997 SCMR 1471; Zain Yar Khan's case 1998 PLC (C.S.) 1484 and Aslam Javed, Deputy Superintendent, Dry Port, Lahore's case 2000 PLC (C.S.) 1180 ref.

Hafiz Aman, Advocate Supreme Court for Petitioners (in both C.Ps.).

Respondent No.1 in person (in C.Ps. Nos.366-P and 369-P of 2003).

Dates of hearing: 17th and 18th January, 2005.

2005 S C M R 784

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Khalil-ur-Rehman Ramday and M. Javed Buttar, JJ

Syed MUHAMMAD FIRDAUS and others---Appellants/Petitioners

versus

THE STATE---Respondent

Criminal Petitions Nos.39, 40 and Criminal Appeals Nos.44 and 45 of 2005, decided on 3rd March, 2005.

(On appeal from the judgment/order, dated 26-1-2005 passed by Lahore High Court, Lahore in Criminal Miscellaneous No.8382/B of 2004).

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

----S. 498---Penal Code (XLV of 1860), S.302/324/322/319/353/148/ 149---Constitution of Pakistan (1973), Art.185(3)---Pre-arrest bail, grant of---None of the two accused Doctors was nominated in the F.I.R.---Trial Court had dismissed the application for summoning one Doctor as an accused in the case which order was not assailed by the complainant---No Expert evidence being available on record to show that the deceased had died because of his shifting from Sialkot to Lahore without making adequate arrangements, criminal negligence of the other Doctor, prima facie, was also not established---Accused Doctors having been charged under S.322, P.P.C. could only be liable to Diyat and could not be punished ultimately for death or imprisonment for life and therefore, concession of bail could not be denied to them under the law---Accused Police Officers were not attributed any role in the F.I.R. to establish their criminal negligence in launching rescue operation---Evidentiary value of the supplementary statements of the complainant and other witnesses regarding the launching of the rescue operation against the instructions of the Sessions Judge in a reckless manner, would be determined by the Trial Court in accordance with law---Said evidence, prima facie, at this stage appeared to be inconsistent---Deceased Judicial Officers as per medical evidence having been fired upon from a close vicinity, their deaths at the hands of the accused Police officers, prima facie, could not be believed who seemed to have done their best to save the hostages---Accused D.I.-G. had launched rescue operation under unavoidable circumstances and if he had not conducted the same, then he would have also become liable for failing to perform his duty, because under rescue doctrine emergencies might sometimes justify what would otherwise be considered a rash and indefensible act---Prosecution in black and white had not saddled the accused with any criminal liability and Trial Court itself on having seen the record and summoned them under S.302, P.P.C.---Arrest of accused could cause humiliation and unjustified harassment to them in circumstances---Petitions for leave to appeal were consequently converted into appeals and allowed and interim pre-arrest bail already granted to accused was confirmed.

Mazhar Hussain Shah v. The State 1986 PCr.LJ 2359; Muhammad Amin alias Irfan v. State 2004 SCMR 1560; State v. Zulfiqar Ali Bhutto 1978 PCr.LJ 321; Said Akbar v. Gul Akbar 1996 SCMR 931; Rovinski v. Rowe C.C.A. Minch, 131 F.2d 687, 692, 693, Words and Phrases permanent Edition Vol.37 p.161; Mazhar Hussain Shah v. The State 1986 PCr.LJ 2359; Sadiq Ali v. The State PLD 1966 SC 589; Meeran Bux v. The State PLD 1989 SC 347; Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82; Jamal-ul-Din v. The State 1985 SCMR 1949 and Ajmal Khan v. Liaqat Hayat PLD 1998 SC 97 ref.

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

----S. 498---Penal Code (XLV of 1860), Ss.302/324/322/319/353/148/ 149---Bail before arrest---Principles---Arrest for ulterior motives such as humiliation and unjustified harassment is a valid consideration for grant of pre-arrest bail.

Ajmal Khan v. Liaqat Hayat PLD 1998 SC 97 ref.

Syed Mazhar Ali Akbar Naqvi, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Petitioners (in Criminal Petition No.39 of 2005).

Khawaja Sultan Ahmed, Senior Advocate Supreme Court for Petitioners Nos.1 and 2 (in Criminal Petition No.40 of 2005).

Dr. Babar Awan, Advocate Supreme Court for Petitioner No.3 (in Criminal Petition No.40 of 2005).

Aftab Iqbal Chaudhry, A.-G. (Punjab), Ch. Mushtaq Ahmed, Senior Advocate Supreme Court, Mrs. Afshan Ghazanfar, A.A.-G., Syed Sajjad Hussain Shah, A.A.-G., Ms. Yasmin Sehgal, A.A.-G., Basharat Ahmed Investigating Officer Police Station Civil Lines, Sialkot and Sanaullah Ex-Investigating Officer for the State (in both cases).

Complainant (in person).

Dates of hearing: 28th February to 3rd March, 2005.

2005 S C M R 800

[Supreme Court of Pakistan]

Present: Javed Iqbal and Tanvir Ahmed Khan, JJ

Sh. MUHAMMAD IRFAN and others---Petitioners

versus

SITARA COMMISSION SHOP and others---Respondents

Civil Petition for Leave to Appeal No.1273/L of 2002, decided on 13th May, 2002.

(On appeal from the judgment dated 1-4-2002 of the Lahore High Court, Multan Bench, Multan passed in R.F.A. No.384 of 2001).

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.2 & 3---Companies Ordinance (XLVII of 1984), S.32--- Suit for recovery of amount upon cheque---Disputed cheque was issued by a Company registered under Companies Ordinance, 1984, but suit was filed against its Directors without impleading the Company as party---Defendants/Directors did not deny issuance of cheque, but they were granted conditional leave to appear and defend suit----Suit decreed by Trial Court was upheld by High Court---Validity---Defendants were admittedly Directors/shareholders of the Company---Non-mentioning of the name of Company as a party in the plaint was not fatal as defendants had admitted their liability---Maintainability of suit could have been objected to after abiding by leave granting order---Leave granting order had attained finality for having been upheld by High Court in revision filed by defendants---No illegality had been committed by High Court in maintaining judgment/decree of Trial Court---Supreme Court dismissed petition and refused leave to appeal.

Col. (Retd.) Ashfaq Ahmed and others v. Sh. Muhammad Wasim 1999 SCMR 2832 ref.

Muhammad Iqbal Khan, Advocate Supreme Court with S. Abul Aasim Jafri, Advocate-on-Record for Petitioners.

M. Akram Khawaja, Advocate Supreme Court for Respondents.

Date of hearing: 13th May, 2002.

2005 S C M R 802

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

AZIZULLAH and another---Petitioners

versus

THE STATE and another---Respondents

Criminal M.A. No.14-K of 2004 and Criminal Petition No.69-K of 2004, decided on 7th February, 2005.

(On appeal from the order, dated 22-7-2004 of the High Court of Sindh, Karachi passed in Criminal Revision No.81 of 2004).

Penal Code (XLV of 1860)---

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), Ss.2(m) & 6(a)---Constitution of Pakistan (1973), Art.185(3)---Refusal of transfer of case from Anti-Terrorism Court to ordinary Court---Validity---Material available with the prosecution, prima facie, showed that the abductees were kidnapped, ransom of Rs.5 lac was paid, further demand of ransom was also made and the accused had made the abductees hostages in their house---Said act had created sense of fear and insecurity in the public and as such the ingredients of Ss.6 & 7 of the Anti-Terrorism Act, 1997, were attracted---Impugned order passed by High Court refusing to transfer the case from Anti-Terrorism Court to ordinary Court did not suffer from any illegality warranting interference by Supreme Court---Leave to appeal was refused to accused accordingly.

Muhammad Farooq v. Ibrar and 5 others PLD 2004 SC 917 ref.

Azizullah Sheikh, Advocate Supreme Court for Petitioners.

Dr. Qazi Khalid Ali, Additional Advocate-General, Sindh for Respondents.

Iqtidar Ali Hashmi, Advocate Supreme Court for the Complainant.

Date of hearing: 7th February, 2005.

2005 S C M R 806

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, CJ and Javed Iqbal, J

IFTIKHAR AHMED MALIK---Petitioner

versus

SECRETARY MINISTRY OF PETROLEUM AND NATURAL RESOURCES and another---Respondents

Civil Petition No.1970 of 2002, decided on 18th February, 2005.

(On appeal from the judgment dated 17-9-2002 of the Federal Service Tribunal, Islamabad, passed in Appeal No.205 (P) of 1999).

(a) Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr.3, 4, 5 & 6---Government Servants (Conduct) Rules, 1964, R.16---Passport and Visa Manual, 1974---Revised Leave Rules, 1980, Rr.15(1) & 37---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Misconduct---Charges against civil servant were of having obtained a passport by concealing his exact position in Government service, unauthorised employment in a foreign company, travelling abroad without proper permission of competent authority and continuing to draw salary simultaneously from foreign company and also from Government without making requisite deduction---Service Tribunal converted such penalty into that of removal from service in appeal filed by civil servant---Validity---Government servant could not obtain passport in his "private capacity"---No "NOC" could be issued to any Government servant to procure a passport in his "private capacity", which amounted to fraud and dishonest distortion of facts---Civil servant had received salary simultaneously from department and foreign company, but had not made requisite deduction deliberately---Civil servant had executed agreement of employment with foreign company without having sanctioned Ex-Pakistan leave of 364 days---Civil servant had availed 230 days' leave piecemeal without permission of competent authority---Reality was unveiled by foreign company, when civil servant represented against his termination from company and resultantly matter was brought to the notice of department, which initiated disciplinary proceedings---Comprehensive inquiry had been conducted and civil servant had been afforded proper opportunity of hearing---Charges against civil servant had been established by cogent and concrete evidence---No question of law of public importance was involved---Supreme Court dismissed petition and refused leave to appeal.

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

----Art. 212(3)---Concurrent findings of fact given by Departmental Authority and Service Tribunal---Validity---Supreme Court would not ordinarily interfere with such findings.

Muhammad Binyamin v. WAPDA 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 fol.

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

----Art. 212(3)---Finding of Service Tribunal---Validity---Where no substantial question of law much less question of law of public importance, was raised in appeal, a finding of Service Tribunal being a finding of fact, would not call for interference by Supreme Court.

Muhammad Azim v. Chief Engineer, Irrigation 1991 SCMR 255 fol.

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

Naheeda Mahboob Elahi, D.A.-G. and Raja Abdul Ghafoor, Advocate-on-Record for Respondents (on notice).

Date of hearing: 18th February, 2005.

2005 S C M R 810

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J. Javed Iqbal and Abdul Hameed Dogar, JJ

ELAHI BAKHSH and others---Petitioners

versus

THE STATE and others---Respondents

Criminal Petitions Nos.164-L and 197-L of 2003, decided on 1st March, 2005.

(On appeal from the judgment dated 6-1-2003 of the Lahore High Court, Multan Bench, Multan passed in Criminal Appeal No.99 of 1987 and Criminal Revision No.187 of 1989).

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

----S. 304-I---Constitution of Pakistan (1973), Art.185(3)---Accused party after an altercation with the other party, went to their house and returned duly armed with lethal weapons and in retaliation caused injuries to the deceased as well as to the prosecution witnesses---Ocular version furnished by the injured witnesses was fully corroborated by medical evidence---Fatal injury to the deceased was attributed to accused who pleaded to have acted in self-defence at the time of occurrence but had failed to prove the same---Said defence plea was neither true nor convincing as neither counter-case regarding the same was lodged by the accused, nor such plea was even suggested to the witnesses during their cross-examination---Accused had admitted his presence at the place of incident at the relevant time and he could not be absolved from liability in the commission of the offence---Findings recorded by the two Courts below against the accused being cogent and reasonable, did not warrant any interference by Supreme Court---Leave to appeal was declined to accused in circumstances.

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

----S. 302---Defence plea---Burden of proof---Principles---When a defence plea is raised by the accused, the burden to prove the same lies upon him.

Ch. Muhammad Amin Javaid, Advocate Supreme Court for Petitioner (in Criminal Petition No.164-L of 2003).

Nemo for the State (in Criminal Petition No.164-L of 2003).

Nemo for Petitioners (in Criminal Petition No.197-L of 2003).

Nemo for Respondents (in Criminal Petition No.197-L of 2003).

Date of hearing: 1st March, 2005.

2005 S C M R 824

[Supreme Court of Pakistan]

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

EXECUTIVE ENGINEER and others---Appellants

versus

ZAHID SHARIF---Respondent

C.A. No. 1203 and Civil Petition for Leave to Appeal No.712 of 2002, decided on 18th September, 2002.

(On appeal from the judgment dated 30-3-2002 passed by Federal Service Tribunal in Appeal No.93 (R) C.S. of 2001).

(a) Civil service---

----Acquittal from criminal case---Initiation of disciplinary proceedings against civil servant---Scope---Acquittal of civil servant from Court would not impose any bar for initiation of disciplinary proceedings as his acquittal would have no bearing on disciplinary proceedings at all.

Arif Ghafoor v. Managing Director PLD 2002 SC 13 fol.

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

----Rr. 3, 4, 5 & 6---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Charges of corruption---Acquittal of civil servant from criminal case---Subsequent dispensation with regular inquiry initiated earlier and following summary procedure at the directions of competent authority---Imposition of penalty by Executive Engineer instead of Superintending Engineer being competent authority---Service Tribunal in appeal set aside penalty and reinstated civil servant in service with back-benefits---Validity---Serious charges of corruption had been levelled against civil servant---Acquittal of civil servant from Court would not impose bar on initiation of disciplinary proceedings---Necessary formalities as envisaged under the Rules had been adhered to and order of dismissal had been passed after affording proper opportunity of hearing to civil servant---Order of dismissal seemed to have been passed by Executive Engineer under some false impression or due to inadvertent omission and on its basis all proceedings conducted in accordance with the Rules could not be declared ab initio void---In view of dispensing with inquiry and following summary procedure at the direction of competent authority, no fresh enquiry could be held as same would cause serious prejudice to civil servant and department would be in an advantageous position to fill in gaps, benefit whereof, if any, should be given civil servant---Supreme Court accepted appeal and set aside impugned judgment by remanding case to competent authority to decide matter on basis of available evidence without conducting fresh inquiry.

Arif Ghafoor v. Managing Director PLD 2002 SC 13 fol.

(c) Government Servants (Efficiency and Discipline) Rules, 1973---

----R. 5(iv)---Dispensing with inquiry through Inquiry Officer---Not informing civil servant about proposed action to be taken in regard to him and grounds of such action---Validity---Only competent authority had power to decide question, whether an inquiry should be held or not---Not mandatory for department to hold an inquiry where same had been dispensed with by Competent Authority---Where Competent Authority had decided not to hold an inquiry, then it would be bound to inform civil servant in writing about such proposed action and its grounds.

Sh. Zamir Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners.

Muhammad Iqbal Khan, Advocate Supreme Court and Muhammad Aziz Chughtai, Advocate-on-Record (absent) for Respondent.

Date of hearing: 18th September, 2002.

2005 S C M R 829

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J. Javed Iqbal and Abdul Hameed Dogar, JJ

YARA---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.371 of 2003, decided on 8th February, 2005.

(On appeal from the judgment, dated 18-3-2003 of Lahore High Court, Lahore, passed in Criminal Appeal No.15 of 2000).

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider, inter alia, the contentions raised on behalf of accused in the light of evidence on record for safe administration of justice.

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

----S. 302(b)---Appraisal of evidence---Accused was proved by cogent evidence on record to have made indiscriminate firing resulting in the death of the deceased lady---Eye-witnesses had categorically stated that the deceased had sustained the fire-arm injury on her head while she was peeping from the window---Testimony of the Draftsman who admittedly was not an eye-witness could not be given preference over the ocular version furnished by the natural eye-witnesses---Not even a single question was suggested to the said Draftsman about the presence and location of the eye-witnesses---Medical evidence was in consonance with the eye-witness account---Specific plea taken by accused that the deceased was fired at by the prosecution witness was not substantiated by him---Neither any F.I.R. was lodged nor any evidence was adduced by the accused in that context---Presence of accused was admitted in the house of occurrence---Concurrent findings of the two Courts below did not call for any interference---Appeal was dismissed accordingly.

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

----S. 302(b)---Defence plea---Burden of proof---Principles---When a specific defence plea is raised by an accused burden to prove the same shifts upon him.

Dr. Babar Awan, Advocate Supreme Court for Appellant.

Dil Muhammad Tarar, Advocate Supreme Court for the State.

Date of hearing: 8th February, 2005.

2005 S C M R 834

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan Khalil-ur-Rehman Ramday, Faqir Muhammad Khokhar M. Javed Buttar and Tassaduq Hussain Jillani, JJ

MUHAMMAD SHABBIR---Appellant

versus

THE STATE OF ISLAMIC REPUBLIC OF PAKISTAN---Respondent

Criminal Appeal No.194 of 1997, decided on 14th December, 2004.

(On appeal from the judgment, dated 11-7-1997 passed by the Ehtesab Bench in the High Court of Sindh at Karachi in Reference No.3 of 1997).

(a) Ehtesab Ordinance (CXI of 1996)---

----Ss. 3(1)(d) & 4(2)---Penal Code (XLV of 1860), Ss.107/108--- Appraisal of evidence---Ehtesab Ordinance, 1997, having provided continuity to the provisions of Ehtesab Ordinance, 1996, proceedings taken and decision made in the Reference after the repeal of the Ehtesab Ordinance, 1996, were not void ab initio, coram non judice and without jurisdiction---Charge against the accused was that he had obtained undue favour from the then Chief Minister through the recommendations of a former Member of Provincial Assembly in getting the unauthorized construction raised by him to the extent of eleven floors instead of four floors regularized---Provisions of Ehtesab Ordinance, 1996, could be attracted only if the accused had obtained undue favour by corruption or by corrupt means---Unauthorized construction as such was not an offence under the Ehtesab Ordinance, 1996, unless any undue advantage was obtained within the contemplation of S.3 of the said Ordinance---Record did not have any evidence whatsoever on behalf of the prosecution to show that the accused had resorted to corruption or corrupt practices or had bribed some one in order to obtain regularization of the unauthorized construction---Chief Minister use to order regularization or to deny the regularization of different buildings from time to time on applications directly addressed to him---Filing of application by the accused for regularization of his building could not be considered as an offence because of the precedents already in existence---Chief Minister was competent to pass the order in the case, but in pursuance thereof neither any summary was ever prepared nor regularization of the building had taken place---Accused had deposited composition fee of the unauthorized construction of eleven storeys which had been regularized after obtaining all the necessary and technical reports from the concerned Engineers---Accused was acquitted in circumstances.

M. Nawaz Khokhar's case PLD 2000 SC 26 and Multi Line Associate's case PLD 1995 SC 423 ref.

(b) Ehtesab Ordinance (CXI of 1996)---

----Preamble---Ehtesab Ordinance (XX of 1997), Preamble---Repeal of Ordinance---Effect---Legislature while promulgating Ehtesab Ordinance, 1997, had provided continuity to the provisions of Ehtesab Ordinance, 1996.

Fakhruddin G. Ebrahim, Senior Advocate Supreme Court, Abid Zuberi, Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Appellant.

Nasir Saeed Sheikh, Deputy Attorney-General, Raja Muhammad Ibrahim Satti, Advocate Supreme Court on behalf of Prosecutor-General of NAB with Ch. Akhtar Ali, Advocate-on-Record for Respondent.

Dates of hearing: 13th and 14th December, 2004.

2005 S C M R 840

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Falak Sher, JJ

Haji SAID WAHAB KHAN---Petitioner

versus

AMJAD ALI and others---Respondents

Civil Petitions Nos.748 and 749 of 2003, decided on 25th February, 2005.

(On appeal from the judgment dated 17-12-2002 passed by the Peshawar High Court, Peshawar in Writ Petition No.290 of 2002).

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

----S. 15---Constitution of Pakistan (1973), Arts.199 & 185(3)---Ejectment of tenant---Abandoning of plea of default---Effect---Rent Controller passed eviction order and one of the grounds of eviction was default in payment of monthly rent---Appeal of tenant before Appellate Court was dismissed wherein he had abandoned the plea of default in monthly rent---Eviction on the ground of default being concurrent should not have been interfered with by High Court in exercise of Constitutional jurisdiction.

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

----S. 13(2)(ii)(a)---Constitution of Pakistan (1973), Arts.199 & 185(3)---Ejectment of tenant---Subletting of premises---Landlord filed ejectment application on the ground of default in payment of monthly rent and also subletting the premises by the tenant---Rent Controller allowed the application and eviction order was maintained by Appellate Court---High Court in exercise of Constitutional jurisdiction set aside the concurrent orders passed by both the Courts below---Plea raised by the landlord was that the tenant had sublet the premises without his permission/consent---Validity---No written consent of landlord was either pleaded or proved by the tenant---Landlord having not consented in writing, he could rightly challenge the subletting which was admitted by the tenant---Tenant was liable to be ejected and High Court should have avoided interference in the concurrent findings and that too in exercise of powers under Art.199 of the Constitution---Supreme Court converted petition for leave to appeal into appeal and set aside the order passed by High Court---Supreme Court directed the tenant to handover vacant possession of the premises to landlord---Appeal was allowed.

Samad Mehmood, Advocate Supreme Court with Muhammad Ahmad Zaidi Advocate-on-Record for Petitioner.

Respondent No.1 in person.

Nemo for remaining Respondents.

Date of hearing; 25th February, 2005.

2005 S C M R 843

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Falak Sher, JJ

GENERAL MANAGER PAK ARAB FERTILIZERS LTD. KHANEWAL ROAD MULTAN---Appellant

versus

MUHAMMAD AYUB---Respondent

Civil Appeal No.796 of 2000, decided on 10th February, 2005.

(On appeal from the order dated 11-2-2000 passed by Federal Service Tribunal, Lahore in Appeal No.548-L of 1999).

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

----Ss. 2-A & 6---Appeal before Service Tribunal after abatement of writ petition due to insertion of S.2-A in Service Tribunals Act. 1973---Appeal filed on 12-5-1999 was dismissed by Tribunal on the ground that S.6 of Service Tribunals Act, 1973 was operative from 26-9-1973 for a period of 90 days, which thereafter having become inoperative would not be applicable to such appeal---Validity---Section 6 of Service Tribunals Act, 1973 had never become inoperative---Whenever any enactment constituted a forum of appeal in the form of Tribunal for some category of employees, Tribunal stood established for such purpose, thus, under proviso to S.6 of Service Tribunals Act, 1973, establishment of Tribunal became operative and so the provisions of S.6 thereof---By insertion of S.2-A in Service Tribunals Act, 1973, Tribunal stood established for all such employees, the description of whom was given therein---Impugned judgment, held, was not in accordance with law.

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

----S. 6---Constitution of Pakistan (1973), Art.199---Abatement of Constitutional petition before High Court after establishment of Service Tribunal---Validity---Causes which abated before any other forum would be suits, appeals or applications---Constitutional petition would never abate as same could not be equated with suits, appeals and applications---Reasons stated.

Section 6 of Service Tribunals Act, 1973 specifically lays down that upon the establishment of the Tribunal, the causes that abate before any other forum would be the suits, appeals or applications. In the present case, the cause which was held to have abated, was a writ petition and not a suit, appeal or application. Under section 6 of Service Tribunals Act, 1973, the writ petitions were never supposed to have abated. The obvious reason is that a writ petition is never provided either under Service Laws or Labour Laws, which both extensively provide for the entire hierarchies of their own. Writ jurisdiction is an independent and extraordinary Constitutional jurisdiction of the High Court and cannot be equated with applications, appeals or suits as described by section 6 above or by the special laws concerned.

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

----Ss. 2-A & 6---Constitution of Pakistan (1973), Art. 199---Civil Procedure Code (V of 1908), S.9---Pendency of suits or Constitutional petition before the High Court at the time of insertion of S.2-A in Service Tribunals Act, 1973---Effect---Intention of legislature by insertion of S.2-A in Service Tribunals Act, 1973 was never to resurrect an already dead cause of action, but was to provide remedy of appeal as well as forum only to such employees, whose cause of action was alive and had not already exhausted remedies available under related law by the time or long before such insertion---Such suits or Constitutional petitions if being availed as a first remedy, would abate after such insertion---Employee after availing all remedies provided under related law and having finally failed to obtain relief in given hierarchy, if opted to file Constitutional petition, then same, in itself, could not be equated with the one filed at the first instance and would not abate---Principles.

There are certain employees, who are or were not given any right of appeal before the Tribunal. They normally resorted either to the Civil Court or preferred writ petitions under Art. 199 of the Constitution as a first remedy. When during the pendency of such civil suits or writ petitions, section 2-A of Service Tribunals Act, 1973 came into existence and a Tribunal was established, such suits or writ petitions being the first remedy availed, would abate and the plaintiffs or petitioners, as the case may be, would have a right under S.6 of Service Tribunals Act, 1973 to resort to Tribunal within 90 days, provided always that they fell within the categories specified by newly added section 2-A of the Act.

But situation would be altogether different when an employee, after availing all the remedies provided by Service Laws, Labour Laws or any other law relating to them, and having finally failed to obtain any relief in the given hierarchy, opts to further file, if maintainable, a writ petition under Article 199 of the Constitution. Such a writ petition, independent in itself, cannot be equated with the one filed at the first instance and hence cannot abate.

By insertion of section 2-A in the Service Tribunals Act, the legislature provided a regular remedy of appeal as well as forum to those employees only whose cause of action was alive and the remedy had not already exhausted by the time or long before the enactment of S.2-A. The intention of legislature by insertion of S.2-A was never to resurrect a cause of action that had already become dead.

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

----Ss. 2-A & 6---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Industrial Relations Ordinance (XXIII of 1969), S.25-A---Constitution of Pakistan (1973), Arts.199 & 212(3)---Constitutional petition before High Court---Dismissal from service---Junior Labour Court dismissed grievance petition of employee, but Labour Court reinstated him in service by accepting his appeal---Constitutional petition filed by employer against such decision had abated due to insertion of S.2-A in Service Tribunals Act, 1973---Service Tribunal dismissed appeal filed by employer---Validity---Parties had already exhausted genuine remedies provided under Labour Laws through last order of Labour Court (Court of Appeal)---Filing of Constitutional petition by employer was, thus, not a regular remedy provided under related laws and being filed in its own independent perspective and being extraneous to relevant hierarchy, could not abate---Employer in essence challenged before Tribunal order of Labour Court (Court of Appeal), whereas orders liable to be challenged before Tribunal were those passed by departmental authority, which was never against employer---Constitutional petition had been wrongly held to have abated---Proper course for employer was to have challenged abatement order before Supreme Court---Dismissal of Constitutional petition by the High Court and subsequent resort to Tribunal both were illegal---Supreme Court dismissed appeal being not maintainable.

Javed Altaf, Advocate Supreme Court and Arshad Ali Ch. Advocate-on-Record for appellant.

Respondent in Person.

Ms. Naheeda Mehboob Elahi, D.A.-G. for the State.

Date of hearing: 10th February, 2005.

2005 S C M R 849

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi and Faqir Muhammad Khokhar, JJ

MUHAMMAD SALEEM and others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.30 of 2002 and Criminal Miscellaneous No.387 of 2003, decided on 7th January, 2005.

(On appeal from judgment, dated 28-2-2001 of the Lahore High Court, Lahore, passed in Criminal Appeals Nos.63 and 25 of 1994).

Penal Code (XLV of 1860)---

----Ss. 302(a), 302(b), 324, 148, 309, 310, & 311---Criminal Procedure Code (V of 1898), S.345(2)---Appraisal of evidence---Test and standard of proof for awarding death sentence by way of Qisas were not satisfied as required by the Injunctions of Islam---Process of Tazkia-al-Shahood was not undertaken at any stage by the Trial Court---Punishment of Qisas was also not awarded by the Trial Court in respect of injuries on the person of injured witnesses---Death penalty awarded by Trial Court to the accused and confirmed by the High Court, therefore, had to be treated as falling under S.302(b), P.P.C. by way of Tazir---Injured daughters of the deceased and sister of the other deceased had not waived their right of Qisas nor had compounded the offence---Application of the accused for compromise might have been dealt with differently if all the heirs/Walis of all the deceased had waived their right of Qisas by compounding the offence---Ocular account of the occurrence was supported by the injured eye-witnesses---Medical evidence had corroborated the ocular testimony---Recoveries of blood-stained weapons of offence had been made from the accused---Deceased according to their post-mortem reports were slaughtered in a brutal and gruesome manner which constituted Fisad-fil-Arz---High Court, therefore, was justified in answering the murder reference in affirmative---Death sentence of the accused was, however, confirmed by way of Tazir---Appeal and the application of accused for compromise were dismissed accordingly.

Ghulam Ali v. The State PLD 1986 SC 741; Bashir Ahmed v. The State 2004 SCMR 230; Muhammad Saleem v. The State PLD 2002 SC 558; Muhammad Arshad v. Additional Sessions Judge, Lahore and 3 others PLD 2003 SC 547 and Sh. Muhammad Aslam and another v. Shaukat Ali alias Shuka and others 1997 SCMR 1307 ref.

Raja Muhammad Anwar, Senior Advocate Supreme Court for Appellants.

Mrs. Nahida Mehboob Elahi, D.A.-G., M. Hanif Khatana, Actg. A.-G., Ms. Afshan Ghazanfar, A.A.-G., Malik Ainul Haq, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent.

Date of hearing: 7th January, 2005.

2005 S C M R 855

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and M. Javed Buttar, JJ

SIKANDAR KHAN MALIK and others---Petitioners

versus

PRESIDENT, HABIB BANK LTD. and another---Respondents

Civil Petitions Nos.373 to 375 of 2003, decided on 16th February, 2005.

(On appeal from the judgments dated 26-12-2002 of the Federal Service Tribunal, Islamabad passed in Service Appeals No.666/R of 1998, 687/R of 1998 & 704/R of 1998).

Service Tribunals Act (LXX of 1973)---

----Ss. 2-A & 4---Constitution of Pakistan (1973), Art.212(3)---Promotion---Bank employees---Petitioners sought promotion though they had accepted Golden Handshake Scheme---Departmental representation as well as appeal before Service Tribunal were dismissed---Validity---Competent authority of the Bank considered cases of petitioners for promotion but declined to grant relief as they were not found fit for promotion---Question of promotion did not create a vested right in favour of employee---Petitioners having had availed Golden Handshake Scheme they were not entitled to the claimed relief---Service Tribunal had rightly declined relief to petitioners---Leave to appeal was refused.

Hazoor-ul-Islam Abbasi v. Federation of Pakistan and others C.P. No.606 of 2001 and Zafarullah Baloch v. Government of Balochistan and others 2002 SCMR 1056 rel.

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

Shahid Anwar Bajwa, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents (in all cases).

Date of hearing: 16th February, 2005.

2005 S C M R 859

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J. and Abdul Hameed Dogar, J

SHAHZAD AMJAD---Petitioner

versus

THE STATE---Respondent

Criminal Petition No.230 of 2003, decided on 22nd March, 2005.

(On appeal from the judgment, dated 12-5-2003 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Criminal Appeal No.488 of 2002).

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

----S. 9(c)---Constitution of Pakistan (1973), Art.185(3)---Accused had admitted his guilt in his statements recorded under Ss.342 and 340(2), Cr.P.C.---Plea that the accused had no knowledge about the narcotics concealed inside the layer of the bag had no force, as he had voluntarily taken the bag from the co-accused for onward transmission to abroad---Said bag was opened in the presence of accused from which 1780 grams of heroin was recovered and which was confirmed as heroin by the report of Chemical Examiner---Fact that the accused was having German passport and a ticket for Frankfurt at the relevant time had further corroborated the prosecution case---Accused was proved to have attempted to smuggle narcotics out of country---Impugned judgment was maintained in circumstances and leave to appeal was refused to accused accordingly.

Ch. Arshad Ali, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 22nd March, 2005.

2005 S C M R 861

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Tassaduq Hussain Jillani, JJ

Sh. ZULFIQAR AHMAD---Appellant

versus

AFTAB-UL-HAQ and others----Respondents

Civil Appeal No.1704 of 2001, decided on 10th March, 2005.

(On appeal from the judgment, dated 3-11-2000 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi in Writ Petition No.44/R of 1981).

Settlement Scheme No. VIII---

----S. 1(1)(1-A)---Phrase 'available property' as used in Settlement Scheme No.VIII---Meaning---Cancellation of allotment---Allotment in favour of tenant under Settlement Scheme No. VIII---Pre-condition---Rehabilitation Authorities allotted disputed shop to appellant in year 1959, against price determined as Rs.8400/---Appellant made payment of Rs.2448 and Permanent Transfer Order was issued in his favour---Additional Settlement Commissioner cancelled the Permanent Transfer Order for the reason that despite two notices, the appellant failed to deposit balance amount---Respondent, who was tenant in the disputed shop was allotted the shop under Settlement Scheme No. VIII, on the ground that it was available property of which the respondent was in possession---Settlement Authorities declined to restore the allotment of appellant---Decision of Settlement Authorities was maintained by High Court on the ground that notices were duly served upon appellant---Validity---No notice through post under acknowledgement due was sent to appellant---Person on whom the service was effected was neither heir of appellant nor he was so intimately connected with appellant to raise a presumption that the service was effected on the appellant---Such service was no service in the eyes of law---Disputed shop could only be 'available property' if it had yet to be transferred to anyone or it had been resumed from an allottee lawfully---Since the cancellation of allotment of appellant had been found to be not sustainable in law, the shop could not be classified as 'available property' within the meaning of Settlement Scheme No. VIII---Respondent was tenant of appellant in the disputed shop and his claim for allotment under Settlement Scheme No. VIII on the basis of possession was misconceived because he was not in possession of the shop in his own rights but as a tenant---Constructive possession was that of the appellant in his capacity as owner/landlord of disputed shop---Condition precedent for allotment under Settlement Scheme No. VIII i.e. possession of respondent was missing and the same could not have been allotted to respondent---Judgment of High Court and orders of cancellation of allotment passed by Settlement Authorities were set aside---Appeal was allowed.

Samad Mahmood, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Appellant.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondent No.1.

Date of hearing: 10th March, 2005.

2005 S C M R 866

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

Mrs. MUSHTAR JAHAN---Appellant

versus

PRIME MINISTER OF PAKISTAN and others---Respondents

Civil Appeals Nos.1575 of 2000 and 219 of 2003, decided on 28th December, 2004.

(On appeal from the judgments of the Federal Service Tribunal, Islamabad, dated 16-2-2000 and 5-6-2002 passed in Appeals Nos.54(K) of 1994 and 91(P)/CS of 2001 respectively).

(a) Airports Security Force Act (LXXVII of 1975)---

----S. 7-A(4)---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art.212(3)---Leave to appeal was granted by Supreme Court to consider; whether in view of the provisions of S.7-A(4) of Airports Security Force Act, 1975, Federal Service Tribunal was barred from hearing the appeals of Airports Security Force personnel.

Force Commander A.S.F. v. Muhammad Rashid 1996 SCMR 1614; Gul Muhammad v. Force Commander 1999 SCMR 2935; Fasihuddin v. Khawar Latif Butt 1993 SCMR 1; Tarab Arif Fatimi v. President of Pakistan PLD 1994 SC 562 and Mst. Mushtar Jehan v. Honourable Prime Minister of Pakistan and 3 others 2001 SCMR 863 ref.

(b) Airports Security Force Act (LXXVII of 1975)---

----S. 7-A(4)---Service Tribunals Act (LXX of 1973), S.4---Employees of Airports Security Force---Status---Right to invoke jurisdiction of Service Tribunal---Disciplinary action and administrative action---Distinction---Employees of Airports Security Force were departmentally proceeded against and as a result thereof major penalty was imposed---Appeal before Service Tribunal was dismissed on the ground that in view of S.7-A (4) of Airports Security Force Act, 1975, Service Tribunal had no jurisdiction in the matter---Plea raised by the employees was that disciplinary proceedings should be initiated under Civil Servants Act, 1973, and the rules made thereunder while administrative action should be taken under Pakistan Army Act, 1952 and Airports Security Force Act, 1975---Validity---Employees of Airports Security Force were subject to Pakistan Army Act, 1952 for all practical and disciplinary purposes---Grievance of the employees could only be redressed by approaching the forums available in the hierarchy of Pakistan Army Act, 1952, Airports Security Force Act, 1975 and rules made thereunder, irrespective of the nature of proceedings as no line of distinction had been drawn between "disciplinary action" and "the administrative action"---Supreme Court found no logic behind the idea that disciplinary proceedings should be initiated under Civil Servants Act, 1973, and the rules made thereunder and the administrative action should be taken under Pakistan Army Act, 1952 and Airports Security Force Act, 1975---Federal Service Tribunal had no jurisdiction to dilate upon and decide the departmental appeals preferred on behalf of the employees of Airports Security Force---Jurisdiction of Service Tribunal had been ousted by means of S.7-A (4) of Airports Security Force Act, 1975, and appeal was rightly dismissed by Service Tribunal---Judgment passed by Service Tribunal was not open to exception and being well based did not warrant any interference by Supreme Court---Appeal was dismissed.

Force Commander A.S.F. v. Muhammad Rashid 1996 SCMR 1614; Gul Muhammad v. Force Commander 1999 SCMR 2935; Fasihuddin v. Khawar Latif Butt 1993 SCMR 1; Tarab Arif Fatimi v. President of Pakistan PLD 1994 SC 562; Mst. Mushtar Jehan v. Honourable Prime Minister of Pakistan and 3 others 2001 SCMR 863; Syed Shahsawar Haider v. The Chief Security Officer, Airport Security Force C.P. No.3025/L of 2000 and Azhar Majeed Khalid v. Force Commander Airport Security Force 2002 SCMR 1135 ref.

Kanwar Mukhtar Ahmed, Advocate Supreme Court and Ahmedullah Farooqi, Advocate-on-Record for Appellant (in Civil Appeal No.1575 of 2000).

Sajjad Ali Shah, Dy. A.-G. and A.A. Siddiqui, Advocate-on-Record for Respondent No.4.

Respondents Nos.1 to 3 and 5: Ex parte.

Appellant in person (in Civil Appeal No.219 of 2003).

Sajjad Ali Shah, Dy. A.-G. and A.S.K. Ghori, Advocate-on-Record for Respondent No.2 (in Civil Appeal No.219 of 2003).

Date of hearing: 28th December, 2004.

2005 S C M R 877

[Supreme Court of Pakistan]

Present Iftikhar Muhammad Chaudhry, Khalil-ur-Rehman Ramday and M. Javed Buttar, JJ

COLLECTOR OF CUSTOMS, LAHORE and others---Appellants

Versus

FARHAN MAHMOOD and others---Respondents

Civil Appeals Nos.690 to 693 of 2002, decided on 14th March, 2005.

(On appeal against the judgment dated 15-3-2002 passed by the Lahore High Court, Lahore in Writ Petition Nos. 22252-22255 of 2001)

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

----S. 16---Imports and Exports (Control) Act (XXXIX of 1950), S.3(1)---Passenger Baggage (Import) Rules, 1998, R.2(C)---Import Trade and Procedure Order, 2000---Constitution of Pakistan (1973), Art.185(3)---Contention of authorities was that import of used motorcycles was neither allowed through Passenger Baggage (Import) Rules, 1998, nor the Import Trade and Procedure Order 2000 but High Court, without appreciating the true import of the laws, had allowed the import of used motorcycles in the country---Leave to appeal was granted by Supreme Court to consider the contention of the authorities.

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

----S. 16---Imports and Exports (Control) Act (XXXIX of 1950), S.3(1)---Passenger Baggage (Import) Rules, 1998, R.2(C)---C.B.R. Instruction No. C.No.10(5) L&P/91, dated 2-2-2001---Import of motorcycles in personal baggage---Scope---Motorcycles imported in personal baggage were confiscated by Customs Authorities---High Court in exercise of Constitutional jurisdiction directed the Authorities to release the motorcycles as they were covered under personal baggage scheme---Plea raised by the Authorities was that motorcycles were not covered under personal baggage scheme---Validity---To claim the benefit of C.B.R. Instruction No. C.No.10(5) L&P/91, dated 2-2-2001, burden was upon passengers to prove that they were bringing motorcycles in Pakistan in their baggage as they were using the same---No such evidence had been produced on record, therefore, the C.B.R. Instructions had not advanced the case of passengers in any manner---Available record indicated that passengers left country, a few days before bringing into Pakistan the motorcycles and came back with the motorcycles on the pretext to bring them into country under the Passenger Baggage (Import) Rules, 1998, and for such reason the Customs Authorities were right in seizing the same---Supreme Court, after examining the S.R.Os. and precedent law, had noted that without undertaking exercise in the light of relevant S.R.Os. declaring certain items of gifts to be smuggled one, it would not be fair to hold that Adjudicating Authority had rightly declined redemption of motorcycles to passengers---Supreme Court remanded the matter to the Authorities to decide the cases afresh after following the observations made by Supreme Court---Case was remanded for decision afresh.

Muhammad Arif and others v. Collector of Central Excise and Land Customs, Quetta and others 1998 CLC 1664 and Collector of Customs and another v. Muhammad Ashraf and another 2003 PTD 1879 ref.

A. Karim Malik, Senior Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-Record (absent) for Appellants (in all cases).

Ch. Naseer Ahmed Bhutta, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record (absent) for Respondents (in all cases).

Date of hearing: 14th March, 2005.

2005 S C M R 882

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Syed Deedar Hussain Shah, JJ

Messrs SUHAIL PRINTING PRESS---Appellant

versus

Syed ALEY EBA ZAIDI---Respondent

Civil Appeal No.1744 of 1997, decided on 7th May, 2004.

(On appeal from the judgment of High Court of Sindh,. Karachi, dated 8-12-1994 passed in R.F.A. No.459 of 1993).

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

----Ss. 15 & 21---Civil Procedure Code (V of 1908), Preamble---Ejectment of tenant---Powers of Rent Controller and Appellate Authority---Provisions of Civil Procedure Code, 1908---Applicability---Rent Controller and Appellate Authority under Sindh Rented Premises Ordinance, 1979, are not civil Courts in strict sense and are thus not bound by procedure prescribed under Civil Procedure Code, 1908---In order to regulate their procedure, Rent Controller and Appellate Authority can invoke the broader equitable principles of Civil Procedure Code, 1908, for dispensation of justice---No embargo can be placed by Sindh Rented Premises Ordinance, 1979, on the power of Appellate Authority to invoke and apply beneficial provisions of Civil Procedure Code, 1908, for fostering the ends of justice and defeating mischief.

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

----S. 21---Civil Procedure Code (V of 1908), O.XLI, Rr.17 & 19---Appeal---Absence of tenant---Dismissal on merits---Rent Controller passed eviction order and tenant preferred appeal before High Court against the order---On the day when the appeal was fixed for hearing, tenant was absent and High Court dismissed the appeal on merits---Plea raised by the tenant was that in terms of O.XLI, R.17 C.P.C., in the event of absence of appellant, only option open to High Court was either to dismiss the same for non-prosecution or to adjourn the hearing to some other date---Validity---There could be no cavil to the proposition that best option available to High Court was to dismiss the appeal for non-prosecution or to adjourn the hearing to some other date---It would be illegal and contrary to mandate of law to decide the appeal on merits without taking into consideration the view point of the tenant---Supreme Court refused to accept the contrary position as the same would unsettle the decided position of law which was not permissible---Judgment passed by High Court was set aside and appeal was remanded for decision afresh---Appeal allowed.

Yusuf v. Rabia 1985 SCMR 1066; Muhammad Sadiq v. Punjab Road Transport Board 1991 SCMR 2321; Khudai Nazar v. Abdul Bari 1997 SCMR 1986 and Hussain Bakhsh v. Settlement Commissioner PLD 1970 SC 1 ref.

A. Aziz Khan, Advocate-on-Record/Advocate Supreme Court with Abdul Qadir Khan, Advocate-on-Record for Appellant.

Hafiz Abdul Baqi, Advocate-on-Record for Respondent.

Date of hearing: 4th May, 2004.

2005 S C M R 887

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Mian Shakirullah Jan, JJ

NEK ALAM through L.Rs.---Appellants

versus

SHABBIR HUSSAIN and others---Respondents

Civil Appeal No.2026 of 2001, decided on 10th March, 2005.

(On appeal from judgment, dated 23-2-2001 of the Lahore High Court, Rawalpindi Bench, passed in C.R. No.255-D of 1987).

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

----Ss. 5 & 21---Pre-emption suit---Status of suit property---Determination---Power of Trial Court to go behind recital of sale-deed to determine character and status of suit property---Vendees defended the suit on the ground that the suit-land purchased by them was for graveyard as it was so mentioned in sale-deed---Trial Court on the basis of evidence recorded on file concluded that the suit-land was never used as graveyard, therefore, the suit was decreed in favour of pre-emptors---Judgment and decree passed by Trial Court was maintained by Appellate Court but High Court in exercise of revisional jurisdiction set aside the concurrent judgments of the two Courts below and the suit was dismissed---Validity---Suit property was never used as graveyard either at the time of sale or prior thereto and it remained in physical possession of the pre-emptors as a part of joint Khata of agriculture land---Suit property was located at a distance of more than three miles from a different village of vendees---Mere fact that in sale-deed, the sale of suit-land was intended to be for the purpose of establishing a graveyard would not be conclusive evidence as to its character and status---Trial Court was empowered to go behind the recital of sale-deed and to determine the true nature of the suit-land-Pre-emptors had proved their right of pre-emption over the suit-land and their suit was rightly decreed by the Trial Court as well as by Appellate Court---Judgment and decree passed by High Court was set aside by Supreme Court and those of the Courts below were restored---Appeal was allowed.

Mulla's Principles of Mahomedan Law 17th Edn. 1972, para.247 by M. Hidayatullah ref.

Muhammad Jan v. Suleman and others PLD 1968 Pesh. 181 distinguished.

Haji Mian Muhammad v. Ghulam Mustafa PLD 1973 SC 394; Mawasi and others v. Maya Ram and others 31 P.R. 1901; Mahant Kirpa Singh v. Maya Ram and others 22 P.R. 1911; Jirva v. Buta and others 26 P.R. 1912; Hannumal v. Atna Ram 27 I.C. 799; Jhabban Lal and another v. Muhammad Umar and another 95 I.C. 675; Sant Singh v. Goband Ram AIR 1923 Lah. 209 and Gokal Chand v. Sanwal Das and others AIR 1924 Lah. 495 rel.

Muhammad Aslam Uns, Advocate Supreme Court and M.A. Zaidi Advocate-on-Record for Appellants.

M. Ilyas Sheikh, Advocate Supreme Court for Respondents Nos.1, 3 to 10).

Respondents Nos.3, 2, 11 and 12: Ex parte.

Date of hearing: 10th March, 2005.

2005 S C M R 890

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Mian Shakirullah Jan, JJ

MANAGING DIRECTOR, OIL AND GAS DEVELOPMENT COMPANY LTD.---Appellant

versus

Syed NAJMUL HASSAN NAQVI---Respondent

Civil Appeal No.662 of 2001, decided on 28th February, 2005.

(On appeal from the judgment, dated 23-6-2000 passed by the Federal Service Tribunal, Islamabad in Appeal No.1675(R) of 1999).

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

----S. 4---Civil Procedure Code (V of 1908), S.80 & O.VII, R.11---Premature appeal---Effect---Any suit or cause of action which is premature, does not entail dismissal of that cause but it results into rejection under O.VII, R.11 C.P.C. that does not operate as res judicata---If appeal before Service Tribunal is premature, it should be returned by Registrar so as to be re-submitted after maturity of cause of action.

Abdullah Bhai's case PLD 1964 SC 106; Muhammad Usman's case PLD 1983 SC 436; Syed Aftab Ahmed's case 1999 SCMR 197; Pakistan International Airlines Corporation's case 1999 PLC (C.S.) 1539 and Sui Southern Gas Company Limited's case 2003 PLC (C.S.) 796 ref.

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

----S. 4---Civil Procedure Code (V of 1908), O.VII, R.11---Premature appeal---Filing of appeal before expiry of ninety days---Penalty of compulsory retirement, setting aside of---Civil servant was compulsory retired from service but Service Tribunal allowed appeal and set aside the penalty---Plea raised by the authorities was that civil servant had filed appeal after eighty days from filing of departmental representation, thus the appeal was premature the same merited dismissal by Service Tribunal---Validity---If at the initial stage, by serious omission, the timely return of appeal was avoided and the cause of action was allowed to mature during pendency of appeal and on the fag end of proceedings, the appeal was dismissed on the ground that the initial submission was premature, such volte face if taken by Service Tribunal, could not be endorsed under any canon of justice---Premature matters were not bad but simply premature and must be returned---Failure to return the appeal debarred the Tribunal to subsequently jeopardize rights and bona fide claims of civil servants---Service Tribunal was required to return the appeal at the very first instance, if such course was not adhered to, then the Tribunal subsequently could not damage the civil servant on the grounds of prematurity of appeal when the same had become mature during the pendency allowed by Service Tribunal itself---Service Tribunal had rightly declined to dismiss the appeal on the score of prematurity---Appeal was dismissed.

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

----S. 4---Penalty of compulsory retirement, setting aside of---Discrimination---Departmental inquiry was initiated against eight officers but the respondent civil servant was only condemned who was compulsory retired from service just 4 days prior to his superannuation---Service Tribunal allowed the appeal and set aside the penalty---Validity---No action was taken against other officers under inquiry on the ground that he was to retire after about four months---If such reason could prevail with the authorities with regard to that other officer, it was equally available for the respondent civil servant who was compulsorily retired 4 days before his superannuation---Service Tribunal had rightly concluded that the penalty awarded to respondent civil servant was clearly discriminatory and his retirement was expedited mala fide despite the fact that after 4 days he was to retire on superannuation---Supreme Court declined to interfere with the judgment passed by Service Tribunal as the same was unexceptionable---Appeal was dismissed.

Shah Abdul Rasheed, Advocate Supreme Court with Syed Amjad Ali, Dy. Admn. Officer (O.G.D.C.) for Appellant.

Hafiz S.A. Rehman, Advocate Supreme Court for Respondent.

Date of hearing: 28th February, 2005.

2005 S C M R 895

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Tassaduq Hussain Jillani, JJ

ABDUL HAMEED and others---Appellants

versus

MUZAMIL HAQ and others---Respondents

Civil Appeal No.982 of 2001, decided on 8th March, 2005.

(On appeal from the judgment, dated 21-3-2001 passed by Lahore High Court, Lahore in R.S.A. No.192 of 1988).

(a) Waiver---

----Defined.

Black's Law Dictionary ref.

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

----Ss. 4 & 21---Right of pre-emption---Principle of implied waiver---Applicability---Pre-emptor was son of vendor who was aware of transaction---Amount received by the vendor was deposited by pre-emptor in his account---Pre-emptor claimed superior right of pre-emption on the basis of being son of vendor---Trial Court decreed the suit in favour of pre-emptor but Appellate Court dismissed the suit---Judgment and decree passed by Appellate Court were set aside by High Court in exercise of second appeal---Plea raised by vendee was that the pre-emptor had waived his right of pre-emption---Validity---Evidence showed that the pre-emptor was aware of transaction, he was intimate enough to the vendor and in the event of expression his desire to purchase the suit-land, the vendor would have sold it to him but he allowed the sale to take place---Sale price was deposited in personal account of pre-emptor which showed that he did not choose to exercise the option and impliedly waived his right to pre-empt---Conduct of pre-emptor persuaded Supreme Court to infer implied waiver---Complete understanding existed between vendor and pre-emptor and the suit was filed with the connivance of the vendor and that it was not merely a case of implied waiver but also collusion---Judgment and decree passed by High Court was set aside and the suit of pre-emptor was dismissed---Appeal was allowed.

Naseer Ahmad v. Arshad Ahmad PLD 1984 SC 403; Jasraj Indersingh v. Hemraj Multanchand AIR 1977 SC 1011; Abaid-ur-Rehman and others v. Mahmand and others 1999 SCMR 201; Black's Law Dictionary and The Province of East Pakistan v. Muhammad Hossain MIA PLD 1965 SC 1 ref.

(c) Supreme Court Rules, 1980---

----O. XIX, R. 5---Ground not raised in memo. of appeal---Effect---Supreme Court has discretion under O.XIX, R.5 of Supreme Court Rules, 1980, to allow an appellant to raise any ground not specified in the memo. of appeal.

Gul Zarin Kiani, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Appellants.

Muhammad Munir Peracha, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondents.

Date of hearing: 8th March, 2005.

2005 S C M R 904

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and M. Javed Buttar, JJ

MUHAMMAD YOUNUS TANOLI---Appellant

versus

FEDERATION OF PAKISTAN through Secretary Finance and others---Respondents

Civil Appeal No.40 of 2001, decided on 9th March, 2005.

(On appeal against the judgment, dated 6-5-1999 passed by the Federal Service Tribunal, Islamabad in Appeal No.206-R of 1998).

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

----S. 4---Notification O.M. No.F-7(I)Imp.1/90-Vol-II, dated 7th February, 1991, issued by Finance Division---Constitution of Pakistan (1973), Art.212 (3)---Leave to appeal was granted by Supreme Court to consider the contention of civil servant that adverse report was not communicated to him and that in view of the rule laid down by Supreme Court in cases reported as 1994 SCMR 544 and 1997 SCMR 1303 adverse reports could not be handled for the grant of move over.

Federation of Pakistan and others v. Muhammad Qaisar Hayat Khan 1994 SCMR 544 and Pakistan Broadcasting Co. through D.G. HQs. and another v. Nasiruddin 1997 SCMR 1303 ref.

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

----S. 4---Notification O.M. No.F-7(I)Imp.1/90-Vol-II, dated, 7th February 1991 issued by Finance Division---Move-over from B-17 to B-18---One good and one average Annual Confidential Report---Civil servant was denied move over by the authorities on the ground that he did not earn two good Annual Confidential Reports---Appeal was dismissed by Service Tribunal---Validity---For the purposes of move over an average Annual Confidential Report could be treated generally as 'good'---Judgment passed by Service Tribunal was set aside and Supreme Court directed the authorities to grant move over to the civil servant from B-17 to B-18 from the date when it was due to him---Appeal was allowed.

Federation of Pakistan and others v. Muhammad Qaisar Hayat Khan 1994 SCMR 544; Pakistan Broadcasting Co. through D.G. HQs. and another v. Nasiruddin 1997 SCMR 1303 and Federation of Pakistan through Secretary Health Division v. Dr. Najmul Ghani Khan 1995 PLD SC 556 ref.

Muhammad Anwar v. The Secretary Establishment Division Rawalpindi and 2 others PLD 1992 SC 144 fol.

Rana Manzoor-ul-Hassan v. Secretary, M/o Education, Islamabad and others 1995 SCMR 8 distinguished.

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

Mrs. Nahida Mehboob Elahi, D.A.-G., Mehr Khan Malik, Advocate-on-Record Muhammad Hanfi Bhatti, Director Legal, National Saving Centre for Respondents.

Date of hearing; 9th March, 2005.

2005 S C M R 907

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J. and Abdul Hameed Dogar, J

SECRETARY TO THE GOVERNMENT OF PAKISTAN, MINORITIES AFFAIRS DIVISION, ISLAMABAD and 2 others---Petitioners

versus

Mst. SHAH JEHAN BANO and others---Respondents

Civil Petitions Nos.287 and 288 of 2002, decided on 16th March, 2005.

(On appeal from the judgments dated 13-12-2001 and 29-11-2001 of Lahore High Court, Rawalpindi Bench passed in Writ Petitions Nos.28 and 1993 of 1996).

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

----Ss. 10(1)(b) & 17---Evacuee trust property---Declaration---Non-issuance of Permanent Transfer Deed prior to June, 1968---Disputed properties were declared as Evacuee Trust Properties by Chairman Evacuee Trust Property Board and the order was maintained by Federal Government in exercise of revisional jurisdiction---Such declaration was set aside by High Court in exercise of Constitutional jurisdiction---Plea raised by the authorities was that the declaration was made by the Chairman after recording of evidence---Validity---Final order about status of disputed properties was passed by the Chairman within the scope of S.10(1)(b) of Evacuee Trust Properties (Management and Disposal) Act, 1975, and no appeal was provided against such order---Only revision under S.17 of Evacuee Trust Properties (Management and Disposal) Act, 1975, was provided---Respondents preferred revision petitions before Federal Government and the same were dismissed---Permanent Transfer Deeds were not issued to the respondents prior to June, 1968 and it being so, the same could be legally cancelled within the four corners of the provisions of Evacuee Trust Properties (Management and Disposal) Act, 1975, and so had been done---Supreme Court converted petition for leave to appeal into appeal and the order passed by the High Court was set aside and orders of Chairman as well as of the Federal Government were restored---Appeal was allowed.

Tahir Ali v. Federation of Pakistan PLD 1987 Kar. 290; Mariam Bi v. Islamic Republic of Pakistan PLD 1990 Kar. 427; 1993 SCMR 515; Secretary, District Evacuee Trust Property v. Qazi Habibullah PLD 1991 SC 586; Evacuee Trust Property Board v. Allah Rakha 1995 PSC 550 and Deputy Administrator Evacuee Trust Property v. Abdul Sattar 2000 SCMR 1929 ref.

District Evacuee Trust Committee v. Mashraf Khan 1989 SCMR 1636; Government of Pakistan v. Nizamuddin 1994 SCMR 1908 and Federal Government of Pakistan v. Khurshid Zaman Khan 1999 SCMR 1007 distinguished.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Raja Abdul Ghafoor Advocate-on-Record for Petitioners (in both Petitions).

Shoukat Aziz Siddiqui, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondent (in Civil Petition No.287 of 2002).

Altaf Elahi Sheikh, Advocate Supreme Court and Ch. Muhammad Akram Advocate-on-Record for Respondent (in Civil Petition No.288 of 2002).

Date of hearing: 16th March, 2005.

2005 S C M R 911

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

KHALIL AHMAD---Petitioner

versus

ABDUL JABBAR KHAN and others---Respondents

Civil Petition for Leave to Appeal No.691/L of 2000, decided on 7th April, 2003.

(On appeal from the judgment, dated 10-3-2000 passed by the Lahore High Court, Multan Bench in Civil Revision No.771-D of 1995).

(a) Islamic Law---

----Gift---Maraz-ul-Maut---Mutation of gift---Gift by donor in favour of grandson was alleged to be suffering from Maraz-ul-Maut as donor had become bed-ridden on account of breaking his backbone in an accident at relevant time and also due to old age he had lost his mental faculties---Proof---If donor had met such accident resulting in fracture in his spine, then same would have resulted in his admission in some hospital and treatment by some doctor---No evidence had been led also to prove that donor had become of unsound mind or incapable of understanding his affairs---Factum of gift and attestation of mutation by donor had been verified and confirmed by at least three independent witnesses out of whom one was a Councillor of the area and the other a Lambardar of village---Held: Such evidence was sufficient to establish factum of gift; and that donor had not been proved to be suffering from any mortal illness at the time of making gift.

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

----S. 42---Mutation---Entering a mutation or reporting factum of acquisition of any right in an estate to Patwari is a mere ministerial act, which would not confer or extinguish any right in property---Principles.

Entering a mutation or reporting the factum of acquisition of any right in an estate to the Patwari is a mere ministerial act, which does not confer or extinguish any right in any property. Under section 42 of Land Revenue Act, 1967, no witnesses or respectables are required either to accompany the person reporting acquisition of such an interest to Patwari nor to witness the entering of a mutation in said connection. Where the witnesses or even the donor himself does not go to Patwari for said purpose, even then the same would be of no consequence vis-a-vis the validity of a consequently attested mutation. What is relevant is the factum of attestation of mutation, which exercise has to be done by the Revenue Officer under subsection (7) of section 42 of Land Revenue Act in the presence of the person, whose right has been acquired after such person has been identified by at least two respectable persons preferably from amongst the Lambardar or member of Union Council etc.

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

----S. 115---Concurrent findings of fact---When not effective---Such findings would not be respected, if same were based on misreading and non-reading of evidence available on record.

Ch. Muhammad Ashraf, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Ch. Hameed-ud-Din, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Respondents.

Date of hearing: 7th April, 2003.

2005 S C M R 919

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

Mst. RASOOL BIBI and others---Petitioners

versus

BOARD OF REVENUE, PUNJAB and others---Respondents

Civil Petition for Leave to Appeal No.230/L of 2000, decided on 15th January, 2003.

(On appeal from the judgment dated 25-11-1999 of the Lahore High Court, Lahore passed in Writ petition No.1334 of 1979).

West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----S. 10---Constitution of Pakistan (1973), Art.185(3)---Consolidation proceedings---Partitioning of joint Khata---Grievance of petitioners was that the Revenue Authorities could not partition the joint Khata---Validity---Petitioners never assailed the order passed by revenue authorities and participated in consolidation proceedings---Order of Board of Revenue had attained finality and the petitioners could not turn round and take objection to the partitioning of the Khata when the matter had been lingering on for more than three decades---Petitioners failed to point out any illegality or legal infirmity in the judgment passed by High Court warranting interference by Supreme Court---Leave to appeal was refused.

Mian Sher Alam, Senior Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 15th January, 2003.

2005 S C M R 921

[Supreme Court of Pakistan]

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

and Muhammad Nawaz Abbasi, JJ

SIRAJ DIN through L.Rs. and 2 others---Appellants

versus

AKBAR ALI and others---Respondents

Civil Appeal No.1552 of 1999, decided on 13th January, 2003.

(On appeal from the judgment dated 4-10-1999, passed by the Lahore High Court, Lahore in C.R. No.760 of 1983.).

(a) Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----S. 25---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider, whether the Civil Court had jurisdiction to try the suit in respect of evacuee land; and whether the order of Deputy Settlement Commissioner (Land) could be challenged before the Civil Court by-passing the forum for appeal etc. provided by Settlement laws.

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

-----S. 42---Mutation of inheritance, conclusive proof of right---Validity---Adjudication of disputes relating to succession does not fall within the jurisdiction of Settlement or Revenue Authorities---Sanction of mutation of inheritance in the Settlement or Revenue Record as such is neither the conclusive proof of right of a person in inheritance nor is denial of right of a person in inheritance.

(c) Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----S. 25---Jurisdiction of Civil Court---Scope---Concurrent findings of fact by the Courts below---Dispute between the parties was regarding inheritance of a displaced person---Order relating to allotment of land in lieu of the claim of the disputed person attained finality for want of challenge by either party before Settlement Authorities and dispute in the civil suit filed by the plaintiffs was not related to the allotment of land rather it pertained to the right of appellant in the property as legal heirs of the displaced person---Concurrent findings of fact by the three Courts below showed that the respondent being son of displaced person was his sole legal heir and appellant was not sister of the displaced person---Plea raised by the appellant was that the Civil Court did not have jurisdiction to adjudicate the matter---Validity---No dispute was before the Settlement Authorities or any other forum regarding entitlement of displaced person or any other defect in the satisfaction of his verified claim---Parties disputed the claim of each other in the right of inheritance in the property of the displaced person---Such dispute was exclusively adjudicatable by Civil Court---Supreme Court declined to interfere with the judgments and decrees passed by the Courts below---Appeal was dismissed.

Ch. Muhammad Anwar Khan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Appellants.

Ch. M. Anwar Bhinder, Advocate Supreme Court and C.M. Latif, Advocate-on-Record (absent) for Respondents.

Date of hearing: 5th November, 2002

2005 S C M R 927

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

ALI MUHAMMAD and others---Petitioners

versus

Mst. FATIMA (deceased) through L.Rs. and others---Respondents

Civil Petition No.1083/L of 2003, decided on 14th May, 2003.

(On appeal from the judgment of the Lahore High Court, Lahore dated 6-10-2000 passed in R.S.A. No.913 of 1968).

Specific Relief Act (I of 1877)---

----S. 42---West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), S.3---Suit for declaration---Plaintiffs as collaterals of deceased (last male heir) claimed that widow of deceased being limited owner was entitled to 1/4th share, while remaining 3/4th share would fall to share of plaintiffs---Trial Court dismissed suit, which findings were upheld by Appellate Court and High Court in revision---Validity---Record showed that widow had filed independent claim in her own right and secured allotment not as limited owner, but as full owner---In presence of such determination, framing of fresh issue to determine, whether plaintiffs were collaterals, would lose all its force---Plaintiff could only claim property, if same was allotted to widow as limited owner, and in that eventuality they would have been entitled to 3/4th share as her collaterals---Concurrent findings of Courts below affirmed by High Court was that widow had secured allotment as full owner---No misreading or non-reading in evidence available on record having been pointed out, Supreme Court dismissed petition and refused leave to appeal.

Ch. Muhammad Nasrullah Warraich, Advocate Supreme Court and Muhammad Ozair Chughtai, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 14th May, 2003.

2005 S C M R 929

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

MUHAMMAD SALIM---Petitioner

versus

SULEMAN---Respondent

Civil Petition No.1172-L of 2002, decided on 21st January, 2003.

(On appeal from the judgment dated 12-2-2002 passed by the Lahore High Court, Lahore, in Civil Revision No.268 of 2002).

Civil Procedure Code (V of 1908)---

----O. XXXII, R. 3---Constitution of Pakistan (1973), Art.185(3)---Guardian ad litem, non-appointment of---Raising of new plea---Concurrent findings of facts by the Courts below---Grievance of defendants was that two defendants were minor at the time of initial filing of the suit and no guardian ad litem was appointed---Both the minor defendants had become major at the time of remand of the case and in post remand proceedings the suit was decreed by Trial Court in favour of plaintiff---Judgment and decree passed by Trial Court was maintained by Appellate Court and High Court in exercise of appellate and revisional jurisdiction respectively---Validity---Defendants did not take any such objection during the course of hearing of revision before High Court and the judgment was passed on merits---Supreme Court did not allow to raise such hyper-technical objection at such a late stage---Suit of plaintiff was decreed on merits by concurrent findings of facts recorded by three Courts below---Judgment passed by High Court in exercise of revisional jurisdiction did not suffer from any legal infirmity so as to warrant interference by Supreme Court---Leave to appeal was refused.

Mirza Hafeez-ur-Rehman, Advocate Supreme Court for Petitioner.

Mian Sarfrazul Hassan, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Respondent.

Date of hearing: 21st January, 2003.

2005 S C M R 931

[Supreme Court of Pakistan]

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

COOPERATIVE MODEL TOWN SOCIETY through Secretary---Petitioner

versus

Mst. ASGHARI SAFDAR and others---Respondents

Civil Petition No.59-L of 2002, decided on 9th December, 2002.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 2-10-2001 passed in R.S.A. No.36 of 1999).

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

----O. XLI, R. 1---Appeal---Certified copy of decree sheet---Requirement---Production of certified copy of decree sheet is mandatory under O.XLI, R.1 C.P.C.

Akbar Khan v. Muhammad Razzaq alias Abdur Razzaq PLD 1979 SC 830 rel.

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

----O. XLI, R. 1---Limitation Act (IX of 1908), S.5---Constitution of Pakistan (1973), Art. 185(3)---Appeal---Condonation of delay---Filing of certified copy of judgment and decree beyond period of limitation---Effect---Application for obtaining certified copy of judgment of Trial Court was made by the petitioner on 9-6-1997 within the period of limitation prescribed by law---Copy was prepared on 5-7-1997 and was delivered to petitioner on the same date---Petitioner kept quite upto 30-3-1998 when he made application seeking permission to place on record certified copy of the judgment and decree along with application for condonation of delay---Appellate Court refused to condone the delay and appeal was dismissed---Judgment passed by Appellate Court was maintained in second appeal by High Court---Validity---Appellate Court had rightly held that the petitioner was not entitled to the exercise of discretion in his favour and, as valuable right had accrued to respondents on the point of limitation on account of defective institution of appeal---Appellate Court had also rightly dismissed the application for condonation of delay as the petitioner was required to explain each and every day's delay for condonation of delay---Petitioner failed to explain as to why after obtaining certified copy of judgment and decree on 5-7-1997 he did not append the same with the memo. of appeal filed on the same date and even immediately thereafter within period of limitation---Judgment and decree passed by High Court not suffering from any illegality or legal infirmity, leave to appeal was refused.

Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678; Khurshid Ali and 6 others v. Shah Nazar PLD 1992 SC 822; Baseer Ahmad Siddiqui v. Shama Afroze 1985 CLC 1711; Col. (Retd.) Syed Mukhtar Hussain Shah v. Wasim Sajjad and 30 others PLD 1986 SC 178 and Haji Jahanzeb v. Khalid Khan and another PLD 1983 Pesh. 215 ref.

Saeed-ur-Rehman Farrukh, Advocate Supreme Court for Petitioner.

Ch. Muhammad Hassan, Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-Record for Respondents.

Date of hearing: 9th December, 2002.

2005 S C M R 935

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Falak Sher and Karamat Nazir Bhandari, JJ

MUHAMMAD TUFAIL and others---Petitioners

versus

UBEDUL HAQ and others---Respondents

Civil Petitions for Leave to Appeals Nos.806, 807, 808 and 809/L of 2003, decided on 23rd May, 2003.

(On appeal from the consolidated judgment, dated 23-2-2003 passed by the Lahore High Court, Lahore in Civil Revisions Nos.1262, 1263, 1264 and 1265 of 1995).

High Court (Lahore) Rules and Orders---

----Vol. V. Chap. 1-M(i), Rr.1, 2 & 3---Hadd Shikni case---Issue involved was, whether defendant had or had not encroached upon land owned by plaintiff---Such question was still un-resolved---Only way to settle such issue was to proceed in terms of Rr.1, 2 and 3 of Chap.1-M(i) of Vol.V of High Court (Lahore) Rules and Orders---High Court set aside judgments of Courts below and remanded case back for its decision accordingly---Such judgment of High Court did not suffer from any illegality---Supreme Court dismissed petition and refused leave to appeal.

Syed Shahmim Abbas Bokhari, Advocate Supreme Court with Muhammad Aslam Chaudhry, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 23rd May, 2003.

2005 S C M R 936

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

ABDUS SAMAD and others---Petitioners

versus

SAWA and others---Respondents

Civil Petition for Leave to Appeal No. 690/L of 2000, decided on 26th February, 2003.

(On appeal from the judgment, dated 21-1-2000 of the Lahore High Court, Multan Bench, Multan, passed in Civil Revision No.342-D of 1999).

Specific Relief Act (I of 1877)---

----S. 54---Constitution of Pakistan (1973), Art. 185(3)---Permanent injunction, grant of---Factual controversy---Concurrent findings of fact by the Courts below---Suit land was allotted to defendants under Abad Kari Scheme who executed agreement to transfer the land in favour of the plaintiff after acquisition of proprietary rights---Consideration amount was received by the defendants, general power of attorney was executed in favour of the plaintiff and the possession was also delivered---Suit was concurrently decreed by all the three Courts in favour of the plaintiff---Validity---Agreement entered into between the parties was a registered document---Plaintiff, in order to substantiate his claim also produced a marginal witness who supported the same in the letter and spirit---Payment of consideration had also been proved through confidence inspiring evidence---Two Courts below after scanning the entire evidence had determined question of fact which had been maintained by High Court---Defendants failed to point out any illegality or legal infirmity in the judgments warranting interference by Supreme Court---Leave to appeal was refused.

Malik Abdus Sattar Chughtai, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 26th February, 2003.

2005 S C M R 938

[Supreme Court of Pakistan]

Present: Falak Sher and Karamat Nazir Bhandari, JJ

ABDULLAH and 7 others---Petitioners

versus

Mst. KHATOON BIBI and 2 others---Respondents

Civil Petition No.297-L of 2000, decided on 16th January, 2003.

(On appeal from the judgment, dated 17-12-1999 of the Lahore High Court, Bahawalpur Bench passed in R.S.A. No.291 of 1973).

Specific Relief Act (I of 1877)---

----S. 42---Colonization of Government Lands (Punjab) Act (V of 1912), Ss.10 & 19-A [as inserted by Colonization of Government Lands (Punjab) Act (III of 1951)]---Constitution of Pakistan (1973), Art. 185(3)---Limited estate held by widow, termination of---Deposit of sale price---Conferring of proprietary rights---Allottee of suit land died in year 1939 leaving behind a widow, a daughter and a brother---Mutation of inheritance was entered in favour of widow as life estate---Widow deposited sale price of the land during her life time in year, 1951, and proprietary rights were conferred upon her---After the death of the widow, mutation of inheritance was attested in year, 1962, in favour of brother excluding daughter---Plaintiff assailed the mutation on the ground that she being daughter was entitled to the share and mutation in the name of her uncle was invalid---Trial Court dismissed the suit but Appellate Court allowed the appeal and the suit was decreed---High Court in exercise of appellate jurisdiction dismissed the second appeal---Plea raised by the defendant was that the provisions of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, were not applicable at the time of death of the widow---Validity---Limited estate held by widow was terminated and succession was required to take place in accordance with Shariat Law by virtue of S.19-A of Colonization of Government Lands (Punjab) Act, 1951, as the same was inserted in the year, 1951---It was under the provision S.19-A of Colonization of Government Lands (Punjab) Act, 1951, that the widow deposited the sale price on 8.4.1951 before her death---Both the Courts below had taken a correct view that with the deposit of sale price, proprietary rights stood conferred---After the death of widow, the succession would be deemed to have opened as if the original allottee had died and succession would take place in accordance with Muslim Personal Law---Original allottee being survived by a widow, a daughter and a brother was a finding of fact and did not require to be disturbed---Plaintiff and the brother of the allottee had become co-sharers of the land in terms of pronouncement of Supreme Court in case titled Ghulam Ali and 2 others vs. Mst. Ghulam Sarwar Naqvi, reported as PLD 1990 SC 1---Leave to appeal was refused.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 fol.

Imtiaz Ahmed, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.

Muhammad Ashraf Wahlah, Advocate Supreme Court with M.A. Qureshi, Advocate-on-Record for Respondents.

Date of hearing: 16th January, 2003.

2005 S C M R 941

[Supreme Court of Pakistan]

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

MUHAMMAD NAZIR---Petitioner

versus

KHURSHID BEGUM---Respondent

Civil Petition No.1105/L of 2003, decided on 8th May, 2003.

(On appeal from the judgment, dated 16-4-2003 of the Lahore High Court passed in C.R. No.1581 of 2002).

(a) Pardanashin lady---

----Execution of sale-deed by illiterate widow---Proof---Widow alleged that her thumb-mark on sale-deed was got by her brother on pretext that loan for tractor was to be obtained by him---Brother, to prove execution of sale-deed had produced son of scribe as witness, who stated that widow put thumb-mark thereon in his presence, but he did not state that the sale-deed was read over to her and she put thumb-mark thereon after understanding its contents and consequences flowing therefrom of depriving her of right of ownership in disputed land---Son of scribe did not state that payment of consideration or any part thereof was made in his presence---Payment of consideration was acknowledged in sale-deed to have been made prior to its execution---Another witness produced by brother stated that payment was made in his presence, but he did not state as to when, where and about how many days before execution of sale-deed, such payment was made---In view of such plea of widow, mere presence of her thumb-impressions on sale-deed would not be sufficient to prove execution thereof---Brother did not produce any witness from village to witness execution of sale-deed---Widow had minor children---None of near relatives of widow was made to join transaction and its settlement to prove that she had independent advice about what she was doing---Such evidence was necessary to prove execution of sale-deed by an illiterate Pardahnashin lady, where execution thereof was denied on ground of fraud---Onus to prove execution of sale-deed was on petitioner being beneficiary thereof---Execution of sale-deed held, was not proved in accordance with law.

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

----Art. 183(3)---Petition for leave to appeal---Findings on pure questions of facts of two Courts below---Such findings not suffering from any illegality, such as misreading, non-reading or misconstruction of any material piece of evidence---Supreme Court dismissed petition and refused leave to appeal.

Mian Dilawar Mahmood, Senior Advocate Supreme Court and M. Aslam Chaudhry, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 8th May, 2003.

2005 S C M R 944

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Falak Sher, JJ

SHAFIQUE-UR-REHMAN---Petitioner

versus

H.M. KHALID---Respondent

Civil Petition No.2806 of 2003, decided on 22nd December, 2003.

(On appeal from the judgment, dated 14-10-2003 passed by the Lahore High Court, Lahore in T.A. No.398/C of 2003).

Civil Procedure Code (V of 1908)---

----Ss. 16 & 24---Transfer of suit by High Court from District "S" to District "G"---Validity---Contract giving rise to filing suit in District "S" was executed in District "G", where cheque was paid and non-judicial stamp paper was purchased---Cause of action prima facie and tentatively appeared to have arisen in District "G"---Impugned order did not suffer from any illegality or irregularity---Supreme Court dismissed petition and refused leave to appeal.

Ch. Muhammad Ashraf, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 22nd December, 2003.

2005 S C M R 946

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

AFZAL and others---Petitioners

versus

ABDUL GHANI and others---Respondents

Civil Petition for Leave to Appeal No.1249/L of 2000, decided on 24th February, 2003.

(On appeal from the judgment dated 24-4-2000 of the Lahore High Court, Multan Bench, Multan, passed in Civil Revision No.86 of 1998).

Counsel and client---

----Constitution of Pakistan (1973), Art.185(3)---Engaging a second counsel---Power of attorney in favour of former counsel not withdrawn---Matter between the parties had been decided on the basis of statement made by the counsel of the petitioners---Contention of the petitioners was that since the counsel who made the statement was superseded by another counsel appointed by them, the matter could not be decided on the basis of the statement made by the former counsel---Validity---By filing fresh power of attorney, the earlier power of attorney issued in favour of the former counsel was not cancelled---Mere fact that a fresh power of attorney was given to another counsel would not automatically cancel the earlier power of attorney in favour of the counsel who had been appearing in the case---Petitioners failed to point out any illegality or legal infirmity in the judgment whereby the Trial Court decreed the suit---Leave to appeal was refused.

Ejaz Anwar, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 24th February, 2003.

2005 S C M R 948

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

DAWOOD ALI---Petitioner

versus

SUPERINTENDENT OF POLICE and others---Respondents

Civil Petition No.810-L of 2000, decided on 28th February, 2003.

(On appeal from the judgment dated 2-2-2000 passed by the Punjab Service Tribunal, Lahore, in Appeal No.474 of 1998).

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

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Removal from service---Acquittal in criminal case---Effect---Civil servant being police officer was guilty of the charge that while intoxicated he along with others had created awfully awkward situation in public area, and liquor was also recovered from him---After departmental proceedings he was removed from service and the penalty was maintained by Service Tribunal---Plea raised by the civil servant was that he had been exonerated from the same charge by Criminal Court, therefore, there was no justification to impose major penalty of removal from service---Validity---Departmental penalty was imposed on the civil servant not on account of criminal proceedings but as a consequence of departmental inquiry in which he was found guilty of the charge---Departmental and criminal proceedings could be taken simultaneously and independent of each other---Supreme Court declined to interfere in the judgment passed by Service Tribunal---Leave to appeal was refused.

Inspector-General of Police, Police Headquarters Office, Karachi and 2 others v. Shafqat Mehmood 2003 SCMR 207; Rashid Mehmood v. Additional Inspector-General of Police and 2 others 2002 SCMR 57 and Arif Ghafoor v. Managing Director, H.M.C. Taxila and others PLD 2002 SC 13 distinguished.

Deputy Inspector-General of Police v. Anis-ur-Rehman Khan PLD 1985 SC 134; Muhammad Ayub v. The Chairman, Electricity Board, WAPDA, Peshawar PLD 1987 SC 195; Muhammad Tufail v. Assistant Commissioner/Collector 1989 SCMR 316; Amir Abdullah v. Superintendent of Police and others 1989 SCMR 333; Muhammad Nazir v. The Superintendent of Police, Toba Tek Singh and others 1990 SCMR 1556; Talib Hussain v. Anar Gul Khan and others 1993 SCMR 2177; Muhammad Izharul Ahsan Qureshi v. Messrs P.I.A.C. 1994 SCMR 1608; Mir Nawaz Khan v. Federal Government through Secretary, Ministry of Finance, Islamabad and 2 others 1996 SCMR 315 rel.

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

Nemo for Respondents.

Date of hearing: 28th February, 2002.

2005 S C M R 951

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

HABIBULLAH---Petitioner

versus

POLITICAL ASSISTANT, DERA GHAZI KHAN and others---Respondents

Civil Petition No. 3060 of 2003, decided on 17th December, 2003.

(On appeal from the order, dated 18-9-2003 in W.P. No.9398/2002 passed by Lahore High Court, Multan Bench, Multan).

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

----Ss. 154 & 200---Constitution of Pakistan (1973), Art.199---Constitutional petition---Direction for registration of F.I.R.---S.H.O., disclosed that case against petitioner (a hardened criminal) was investigated twice, but was found false---High Court refused to issue such direction---Validity---High Court was under no obligation to issue such direction---Discretion of refusing to issue such direction had not been improperly exercised---Petitioner could initiate criminal proceedings by lodging complaint, which could provide an equal efficacious relief to him---Supreme Court dismissed petition and refused leave to appeal.

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

----Arts. 185 & 199---Exercise of jurisdiction by High Court under Art.199 of the Constitution---Interference by Supreme Court---Scope---Supreme Court would not interfere with exercise of discretionary Constitutional jurisdiction of High Court, except in case of grave injustice.

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

----Ss. 154 & 200---Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of F.I.R.---Prayer for---Not obligatory for High Court to issue writ in each case irrespective of facts and circumstances, which could call for exercise of judicial restraint in turning down such request in view of the conduct of petitioner besides considering that adequate remedy in the form of private complaint was available to him.

Muhammad Ijaz v. S.H.O. Police Station, Rajana, Faisalabad 1979 SCMR 490; Muhammad Hassan v. S.S.P., Faisalabad and others 1992 PCr.LJ 2307; Muhammad Suleman v. Station House Officer, Police Station Civil Lines, Gujranwala 1994 PCr.LJ 2416; Zafar Iqbal and another v. Inspector General of Police and others 1994 MLD 374; Haji Muhammad Yaqoob v. S.P. Vehari and others 1997 PCr.LJ 876; Altaf Hussain v. Government of Sindh through Home Secretary Government of Sindh and another PLD 1997 Kar. 600; Muhammad Tufail alias Yaseen v. D.S.P. Pattoki and others 1998 PCr.LJ 1521; Dr. Kashif Rahim v. S.P. Multan and others 1998 MLD 495 and Javed Tariq Khan v. Ahmed Raza Khan and others 1999 MLD 3230 rel.

Petitioner in Person.

Nemo for Respondents.

Date of hearing: 17th December, 2003.

2005 S C M R 955

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

Mst. NUSRAT FATIMA and others---Petitioners

versus

DEPUTY DIRECTOR (ADMN.) DIRECTORATE OF ELEMENTARY EDUCATION and others---Respondents

Civil Petitions Nos.4108-L to 4113-L of 2001 and 19-L of 2002, decided on 25th February, 2003.

(On appeal from the judgment, dated 6-11-2001 passed by the Punjab Service Tribunal, Lahore in Appeals Nos.2256, 2257, 2258, 2260, 2261, 2263 and 2255 of 2000).

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

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Removal from service---Irregular appointment---Findings of fact---No advertisement had been made to press inviting applications for the posts of PTC teachers---Letters of appointment had been issued by District Education Officer from their residence and not by Deputy District Education Officer---Petitioners were neither interviewed nor any merit list was prepared in their cases---Order of removal from service was maintained by Service Tribunal---Validity---Petitioners were not able to controvert the findings of fact recorded by Service Tribunal in the judgment to which no exception could be taken---No substantial question of law of public importance was involved to warrant interference by Supreme Court---Leave to appeal was refused.

Tanvir Ahmad, Advocate-on-Record for Petitioners (in C.P. No.4108-L to 4113-L of 2001).

Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners (in C.P. No.19-L of 2001).

Abdul Karim Khosa, B. Officer, D.E.O.(F) and Ghulam Haider, Asstt. D.E.O. for Respondent (in all Petitions).

Date of hearing; 25th February, 2003.

2005 S C M R 957

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Falak Sher, JJ

MUHAMMAD NAZIR and others---Petitioners

versus

MUHAMMAD FEROZE and others---Respondents

Civil Petition No. 198/L of 2003, decided on 21st April, 2003.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 19-11-2002 passed in C.R. No.2474 of 2002).

Specific Relief Act (I of 1877)---

----S.42---Transfer of Property Act (IV of 1882), S.41---Suit for declaration---Plaintiffs claimed inheritance as collaterals, while alleged the defendants to be Pichlag of deceased---Trial Court decreed suit---Appeal filed by vendee from deceased defendant was accepted, though son of defendant in his affidavit filed before Appellate Court had admitted claim of plaintiff---High Court dismissed revision filed by plaintiff---Validity---Since deceased defendant during his life time had sold his land to vendee any statement or affidavit made by his son during appeal in favour of plaintiff would be of no avail, which could be construed to have been made in collusion with plaintiff---Person after selling land, if had made such a statement, then same would be of no evidentiary value against vendee, who had purchased land for valuable consideration---Findings recorded by Courts below did not suffer from any illegality---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. Inayatullah, Advocate Supreme Court and Tanveer Ahmed, Advocate-on-Record for Respondent No.17.

A.H. Masood, Advocate-on-Record for Respondent No.18.

Date of hearing: 21st April, 2003.

2005 S C M R 959

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

BAHAWAL and others---Petitioners

versus

SAEED AKHTAR and others---Respondents

Civil Petition for Leave to Appeal No.1449/L of 1999, decided on 2nd January, 2003.

(On appeal from the judgment dated 2-8-1999 of the Lahore High Court, Multan Bench, Multan, passed in Civil Revision No.430-D of 1999).

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Art.72---Constitution of Pakistan (1973), Art.185(3)---Execution of sale deed---Proof---Plaintiff denied execution of disputed sale deed by his father in favour of defendants---Testimony of the witnesses produced by the defendants did not inspire confidence---Defendants were tenants and they succeeded in securing the sale deed executed in their favour in clandestine manner---Moharir Registry produced by the defendants was not posted at the time when the alleged sale deed was executed and he admitted that he did not know about the presence of the parties at the time of registration of sale deed---Testimony of the other two marginal witnesses was contradicting each other---Effect---Defendants failed in establishing execution of sale deed in their favour---Appellate Court had rightly decreed the suit in favour of plaintiff and High Court had advanced cogent reasons in maintaining the findings of Appellate Court---Defendants failed to point out any illegality, misreading of evidence or legal infirmity in the judgment warranting interference by Supreme Court---Leave to appeal was refused.

Rafique Ahmed Bajwa, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Petitioners.

Respondent No.1 in person.

Date of hearing; 2nd January, 2003.

2005 S C M R 961

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Faqir Muhammad Khokhar and Falak Sher, JJ

MUHAMMAD ILYAS---Petitioner

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN and another---Respondents

Civil Petition No. 2936-L of 2003, decided on 10th February, 2004.

(On appeal from the judgment, dated 11-11-2003 passed by the Lahore High Court, Multan Bench in I.C.A. No.35 of 2003).

Baha-ud-Din Zakariya University Regulations------

---- Regln. 8(F)---Constitution of Pakistan (1973), Art.185(3)--­Interpretation of Regulations---Cumulative Grade Point Average (CGPA)---Non-securing of minimum required CGPA---Candidate obtained 1.89 CGPA against required 2.00 CGPA, therefore, the name of the candidate was struck off the roll by the University Authorities--­Validity---Rules and regulations framed by the University Authorities for the purpose of conducting/regularizing its examination etc. were required to be interpreted by the University Authorities itself and Courts should avoid to interpret the same unless a case of grave injustice was made out, otherwise it would be difficult for the University administration to run its internal affairs relating to examination, etc. ---Candidate was required under Regln.8(F) of Baha-ud-Din Zakariya University Regulations, to obtain CGPA independently in each semester for the purpose of promotion to the next semester---Candidate having not obtained requisite CGPA in the 3rd semester, therefore, the University Authorities in exercise of power conferred upon them under Regln.8(F) of Baha-ud-Din Zakariya University Regulations, rightly removed his name from the roll---Judgment passed by High Court in Intra-Court Appeal was just and legal, therefore, no interference was called for by Supreme Court in exercise of jurisdiction under Art. 185(3) of the Constitution---Leave to appeal was refused.

Muhammad Shahzad Shaukat, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioner.

Nemo for Respondents

Date of hearing: 10th February, 2004.

2005 S C M R 964

[Supreme Court of Pakistan]

Present: Falak Sher and Karamat Nazir Bhandari, JJ

BARKAT ALI ---Petitioner

Versus

MUHAMMAD ZAKARIYA and 3 others---Respondents

Civil Petition No. 829-L of 2000, decided on 27th February, 2003.

(On appeal from the judgment dated 5-4-2000 of the Lahore High Court, Multan Bench, Multan passed in Writ petition No.4909 of 1995).

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

----S. 10---Constitution of Pakistan (1973), Art.185(3)---Cooperative Farming Scheme---Proprietary rights, entitlement to---Past and closed transaction---Father of petitioner was granted proprietary rights under Cooperative Farming Scheme to the extent of 52 Kanals and 8 Marlas--­Grievance of the petitioner was that his father was entitled to proprietary rights to the extent of 82 Kanals and 10 Marlas of land---Board of Revenue decided the matter against the petitioner and the order was maintained by High Court in Constitutional jurisdiction---Validity-­Entitlement of the father of the petitioner stood settled by the order of Revenue Authorities and the order had attained finality in the life time of his father---Board of Revenue dismissed the revision of petitioner holding that there was nothing on record to show that allotment of the father comprised of 82. Kanals and 10 Marlas and not 52 Kanals 8 Marlas---Petitioner succeeded to the estate of his father and he had no right to agitate the issue settled in the life time of his father--­Filing of applications before. Revenue Officers and also suits by petitioner was futile exercise and the same only indicated the extent to which a person could go for grabbing land---Leave to appeal was refused.

Muhammad Hanif Niazi, Advocate Supreme Court with C.M. Latif, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing; 27th February, 2003.

2005 S C M R 966

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Faqir Muhammad Khokhar, JJ

AKBAR ALI CHAUDHRY---Appellant

Versus

PASSCO through Chairman and 2 others---Respondents

Civil Appeal No. 1576 of 2001, decided on 21st November, 2002.

(On appeal from the judgment, dated 3-11-2000 passed by the Federal Service Tribunal, Lahore, in Appeal No. 669/L of 1998).

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

----Rr. 4(1)(b)(ii), 5 & 6---Constitution of Pakistan (1973), Art.212(3)--­Compulsory retirement from service---Charge of utilizing 95 Kgs. capacity gunny bags for filling of 100 Kgs. wheat and excess dispatched of wheat to other Province without approval of competent authority--- Explanation of civil servant to show-cause notice was that his Zone was an open Zone, and he had dispatched excess wheat in good faith as wheat stocks were in serious threat of being deteriorated---Authority, without holding regular inquiry, imposed penalty, which was upheld by Service Tribunal in appeal by Civil Servant---Validity---Civil Servant had not denied such charges---Authority before imposing penalty had not considered or dealt with the explanation of civil servant---Such order suffered from non-application of mind---Impugned judgment of Tribunal also being silent on such aspect of case was not sustainable in law--­Supreme Court accepted appeal, set aside impugned judgment and reinstated civil servant in service by treating intervening period as leave of the kind due with the observations that Authority might conduct a regular inquiry, if so desired.

Hafiz Tariq Nasim, Advocate Supreme Court and Mahmood-ul-Islam, Advocate-on-Record for Appellant.

Mian Muhammad Saleem, Advocate Supreme Court and Sh. Salahuddin, Advocate-on-record (absent) for Respondents.

Date of hearing: 21st November, 2002.

2005 S C M R 969

[Supreme Court of Pakistan]

Present: Falak Sher and Karamat Nazir Bhandari, JJ

SHAH MUHAMMAD ---Petitioner

Versus

ATTA MUHAMMAD-Respondent

Civil Petition No. 3741-L of 2002; decided on 27th February, 2003.

(On appeal from the judgment dated 31-10-2002 passed by the Lahore High Court, Multan Bench in C.R. No.741 of 1990).

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

----Ss. 12 & 42---Constitution of Pakistan (1973), Art. 185(3)--­Declaration of title on the basis of agreement to sell---Concurrent findings of facts by the Courts below---Plaintiff claimed to be the owner on the basis of agreement to sell---Trial Court dismissed the suit while Lower Appellate Court and High Court affirmed the judgment and decree passed by the Trial Court---Validity---High Court had rightly observed in the judgment that agreement to sell being not a document of title could not form the basis for grant of a declaration under S.42 of Specific Relief Act, 1877---Plaintiff could not controvert the concurrent findings of fact recorded by three Courts on a settled legal proposition to which no exception could be taken---Leave to appeal was refused.

Syed Sardar Shah Bokhari, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 27th February, 2003.

2005 S C M R 971

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Hamid Ali Mirza, JJ

ZAKAUDDIN ---Petitioner

Versus

DASTGIR INVESTMENT AND MANAGEMENT LIMITED (IN LIQUIDATION), through the Official Assignee/ Liquidator, Sindh High Court, Karachi and 2 others---Respondents

Civil Petition No. 569-K of 1999, decided on 15th March, 2004.

(On appeal from the judgment of High Court of Sindh, Karachi dated 23-9-1999 passed in H.C.A. No.73 of 1994)

Companies Ordinance (XLVII of 1984)---

----S. 10---Constitution of Pakistan (1973), Art.185(3)---Winding up of company ---Intra-Court appeal---Maintainability--Property offered for sale to petitioner by, Official Liquidator ---Failure of petitioner to make payment within stipulated time---Company Judge directed Official Liquidator to- take control and management of property ---Intra-Court Appeal filed by petitioner was dismissed by High Court being non­ maintainable as appeal against such order would lie before Supreme Count---Supreme Court granted leave to appeal to examine the contentions that the High Court had erred in holding that the appeal against the judgment of the Company Judge was not competent before the Intra-Court Bench and instead petition for leave to appeal to Supreme Court should have been filed.

Muhammad Bux v. Pakistan Industrial Credit Investment Corporation Limited and others 1999 S C M R 25 and Industrial Development Bank of Pakistan v. Messrs Valibhai Kainaruddin and others 2002 SCMR 415 ref.

M. Abdul Qadir Khan, Advocate Supreme Court for Petitioner, Nemo for Respondents Nos. 1 and 2.

Rizwan Ahmad Siddiqui, Advocate Supreme Court for Respondent No.3.

Date of hearing: 15th March, 2004.

2005 S C M R 973

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Syed Deedar Hussain Shah and Abdul Hameed Dogar, JJ

Mirza MUHAMMAD ISHAQ and others---Petitioners

Versus

ADDITIONAL SETTLEMENT COMMISSIONER LANDS and others---Respondents

Civil Petition No.2399 of 2001, decided on 8th November, 2002.

(On appeal from the judgment dated 19-11-2001 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in C. R. No. 151-D of 1990).

Limitation Act (X of 1908)-----

----S.12---Constitution of Pakistan (1973), Art. 185(3)---Limitation--­Computation--Attested copy of judgment---Date of delivery--­Determination---High Court in exercise of revisional jurisdiction set aside the judgment passed by Appellate Court on the ground that the date of delivery of attested copy of judgment had not been ascertained by Appellate Court---Plea raised by the petitioner was that High Court had wrongly remanded the case to Lower Appellate Court for deciding the appeal afresh---Validity---In case there was no notice to the respondent, for. 20-8-1989 for obtaining the copy, then the time requisite for obtaining the copy would be the time between 26-6-1989 until 5-9-1989 which had to be excluded and which would then make the appeal within time having been filed on 1-10-1989, but in case the date mentioned for purpose of delivery was 1-10-1989 then the appeal was time barred--­High Court had rightly remanded the case on correct premises as the Appellate Court was the proper forum for resolving the controversy--­Supreme Court declined to interfere with the judgment passed by High Court---Leave to appeal was refused.

Ajmal Kamal Mirza, Advocate Supreme Court for Petitioner.

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

Date of hearing: 8th November, 2002.

2005 S C M R 975

[Supreme Court of Pakistan]

Present: Falak Sher and Karamat Nazir Bhandari, JJ

GHULAM HAIDER and others---Petitioners

Versus

MUHAMMAD HUSSAIN and others---Respondents

Civil Petition No.791-L of 2000, decided on 26th February, 2003.

(On appeal from the judgment dated 7-2-2000 passed by the Lahore High Court, Lahore in Civil Revision No. 17 of 2000).

Constitution of Pakistan (1973)-----

----Art. 185(3)---Petition for leave to appeal---Issue of limitation not pressed---Ground not taken in memo. of appeal before Appellate Court--­Concurrent findings of facts by the Courts below---Suit was decreed in favour of plaintiff by Trial Court and Appellate Court dismissed the appeal holding that only one issue was pressed by defendants and the same was decided against them---High Court in exercise of revisional jurisdiction maintained the judgment and decree passed by the two Courts below---Contention of defendants was that the issue of limitation was neither adverted to in appeal nor in revision---Validity---Findings on only one issue were challenged in appeal before Appellate Court while findings on other issues (including limitation) were not challenged--­Appellate Court could not go beyond the grounds of appeal as raised by the defendants in their memorandum of appeal---Supreme Court declined to interfere with the concurrent judgments and decfees passed by all the Courts below---Leave to appeal was refused.

1982 CLC 1416 distinguished.

M. Aftab Iqbal Chaudhree, Advocate Supreme Court and Ch. M. Aslam, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 26th February, 2003.

2005 S C M R 977

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Khalil-ur-Rehman Ramday, JJ

ANEES A. SHEIKH---Petitioner

Versus

Col. (Retd.) GHULAM MASOOD QURESHI---Respondent

Civil Petition No.2332-L of 2003, decided on 14th October, 2003.

(On appeal from the judgment/order dated 16-6-2003 passed by Lahore High Court, Multan Bench, Multan in R.F.A. No.62 of 1998).

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

----O. XXXVII, Rr.3 & 4---Qanun-e-Shahadat (10 of 1984), Art.31--­Constitution of Pakistan (1973), Art. 185(3) ---Suit for recovery of loan amount on basis of cheques given as security---Suit decreed by Trial Court was upheld by Appellate Court---Plea of defendant was that plaintiff had admitted signatures of his son on receipts, whereby amount of Rs.1,00,000 was paid to his son, thus, such amount was liable to be deducted from decretal amount---Validity---Plaintiff was fair enough to admit such signatures, which he had explained by stating that same had obtained by defendant on blank paper, who had subsequently, therein amount relating to wheat and cotton, supplied by defendant---Cross-examination of defendant showed that plaintiff, apart from loan amount, had been supplying wheat and cotton to defendant--­Defendant in his evidence had admitted to have paid to plaintiff more than Rs.26,00,000, from which conclusion could safely be drawn that apart from loan transaction, there was also business dealings between parties and payments used to be made---Plaintiff had satisfactorily explained his admission regarding signatures of his son---Findings of fact recorded by Courts below were based on correct, elaborate and careful appraisal of evidence---Supreme Court dismissed petition and refused leave to appeal in circumstances.

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

----Art. 31---Admission by a party to proceedings---Evidentiary value--­Such admission could be used as evidence of conclusive nature, if same was proved to be unqualified.

Ch. Imdad Ali Khan, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record (absent) for Petitioner.

S.M. Tayyab, Senior Advocate Supreme Court for Respondent.

Date of hearing: 14th October, 2003.

2005 S C M R 980

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and M. Javed Buttar, JJ

MUHAMMAD ISHAQUE and others---Appellants

Versus

GOVERNMENT OF PUNJAB through Chief Secretary and others---Respondents

Civil Appeal No. 1981 of 2000, decided on 8th March, 2005.

(On appeal from the judgment of the Punjab Service Tribunal, Lahore dated 16th September, 1999 passed in Appeal No. 1092 of 1993).

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

----S. 4---Constitution of Pakistan (1973), Art. 212 (3)---Leave to appeal was granted by Supreme Court to consider; whether civil servants could legally claim to be governed by the rules which prevailed at the time of their induction in service, or they had no vested right to claim so and they would be governed by the amended rules; whether appeal before Service Tribunal suffered from laches/undue delay and misjoinder of parties; and whether joint appeal before the Board by all the civil servants was not competent.

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

----S. 4---Promotion---Principles---Civil servants were-aggrieved of not being promoted---Service Tribunal dismissed the appeal `filed by civil servants---Validity---Promotion was not vested right of an employee and Government was always competent to enhance educational qualification for the purposes of promotion---Civil servants could not claim that their promotion should be regularized according to the Rules/Laws to their service---Supreme Court declined to interfere with the judgment passed by Service Tribunal---Appeal was dismissed.

Dr. Muhammad Hussain v. Principal, Ayub Medical College and another PLD 2003 SC 143 fol.

Ch. Mushtaq Masood, Advocate Supreme Court and Sh. Masood Akhtar, Advocate-on-Record (absent) for Appellants.

Dr. Mohyuddin Qazi, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record (absent) for Respondents Nos.2 and 3.

Respondents Nos : 1 and 4: Ex parte

Date of hearing: 8th March, 2005.

2005 S C M R 983

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Actg. C.J

Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

RAJA and others---Petitions

Versus

Mst. ARSHAD BIBI and others---Respondents

Civil Petition No.525-L of 2000, decided on 24th January, 2005.

(On appeal against the judgment dated 13-1-2000 passed by the Lahore High Court, Lahore in Civil Revision No.281 of 1989).

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

----S. 12---Civil Procedure Code (V of 1908), O.VIII, R.1---Suit for specific performance of agreement to sell---Submission of plaint and consenting written statement by both parties on same day--­Effect---No cause of action would be available to plaintiff, thus, suit could not be decreed in such circumstances---Principles illustrated.

Khawaja Muhammad Farooq, Advocate Supreme Court for Petitioners.

Ch. Muhammad Anwar, Advocate Supreme Court for Respondents Nos. 1, 2, 4 to 5.

Nemo for Respondents Nos.3, 6 to 18.

Date of hearing: 24th January, 2005.

2005 S C M R 985

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ

Mirza ZAFAR ALI and others---Appellants

Versus

LAHORE CANTONMENT COOPERATIVE HOUSING SOCIETY LIMITED---Respondent

Civil Appeal No. 919 of 1999, decided on 5th April, 2005.

(On appeal from the judgment dated 28-10-1997 passed by the Lahore High Court, Lahore in Civil Miscellaneous Nos.3785 of 1990 and 1276 of 1993 in Writ Petition No.55/R of 1990).

(a) Displaced Persons (Land Settlement) Act (XLVII of 1958)------

----Ss. 13 & 14(A-1)---Constitution of Pakistan (1973), Art. 185 (3)--­Leave to appeal was granted by Supreme Court to consider; whether High Court was justified in recalling the order passed in Constitutional petition in view of dicta of Supreme Court in case titled Muhammad Ramzan v. Member (Rev.)/CSS and others, reported as 1997 SCMR 1635.

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

(b) Displaced Persons (Land Settlement) Act (XLVII of 1958)------

----Ss. 13 & 14 (A-1)---Notification dated 16.5.1973 issued by Chief Settlement Commissioner---Civil Procedure Code (V of 1908), S.12(2)--­Entitlement of informer (Mukhbar)---Building site---Allotment---On Mukhbari application of appellants, allotment of disputed land was cancelled from the name of allottee, and the same was allotted to appellants---High Court in exercise of Constitutional jurisdiction set aside the allotment in the name of appellants on the ground that the land allotted to them was urban evacuee property having been declared as building site and order passed earlier was recalled by High Court on application filed under S.12(2), C.P.C.---Plea raised by the appellants was that they were entitled to the allotment of the land on the basis of Notification dated 16-5-1973, issued by Chief Settlement Commissioner---Validity---Informant, who was claimant, could be allotted resumed land or any other available land under S.14(A-1) of Displaced Persons (Land Settlement) Act, 1958, whereas under the notification dated 15-5-1973, only the urban agriculture land which acquired the character of building site was kept out of the purview of allotment thus the provisions of S.14(A-1) of Displaced Persons (Land Settlement) Act, 1958, would not, as such, override the notification--­Land which was definable" as building site could not be allotted as land after 16-5-1973, and Notified Officer was not competent to allot urban agriculture land for the satisfaction of claim of informant either as claimant or non-claimant but a claimant informant could avail the choice of alternate available agriculture land---Memorandum dated 18-7-1974, by virtue of which the- application of notification dated 16-5-1973 was relaxed to the extent of informer, could only be relevant in case of available land---In the, present case, neither the land resumed nor the land in dispute was available for allotment, therefore, the order passed by Notified Officer for allotment of urban alternate land was coram non judice and was suffering from jurisdictional defect---High Court on the assumption that the order of Deputy Settlement Commissioner (Lands) represented correct factual position, proceeded to issue direction but subsequently it was found that the order was obtained through misrepresentation---Deputy Settlement Commissioner (Lands) in exercise of powers as Notified Officer had no jurisdiction to make allotment of land which had acquired the status of building site for satisfaction of claim of informer and the allotment made by Notified Officer in terms of S.14 (A-1) of Displaced Persons (Land Settlement) Act, 1958, without giving effect to the notification dated 16.5.1973 issued by Chief Settlement Commissioner, would be without jurisdiction which could not be validated in Constitutional petition---High Court had committed no wrong in recalling the earlier judgment under S.12(2) C.P.C.---Land, the subject-matter of litigation, was not available for allotment and could not be allotted to appellants against ,their claim---Supreme Court observed that the appellants could approach Settlement Authorities for their adjustment in suitable manner in terms of order passed by Notified Officer---Appeal was dismissed.

Muhammad Ramzan v. Member (Rev.)/C.S.S. and others 1997 SCMR 1635; Bashir Ahmad and others v. Punjab University Academic Staff Association and others 1991 SCMR 377; Malik Iftikhar Ahmad v. Assistant Commissioner and others 1994 PSC 102; Province of Punjab through Member (Settlement and Rehabilitation), Board of Revenue Punjab, Lahore v. Mst. Qaiser Jehan Begum and others 2003 SCMR 870 and Rehmat Ali v. Settlement Commissioner and others PLD 1980 SC 214 ref.

Ali Zafar, Advocate Supreme Court and Arshad Ali Ch. Advocate-on-Record for Appellants.

M. Shafi Muhammadi, Advocate Supreme Court for Respondent No. 1.

Ch. Mushtaq Masood, Advocate Supreme Court for Respondents. Nos. 2 and 3.

Date of hearing: 3rd March, 2005.

2005 S C M R 995

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

Syed MANZOOR HUSSAIN SHAH---Petitioner

Versus

GOVERNMENT OF N.-W.F.P. through Collector, Dera Ismail Khan and others---Respondents

Civil Petition No.2618 of 2004, decided on 18th March, 2005.

(On appeal from order dated 26-10-2004 of the Peshawar High Court, D.I. Khan Bench, passed in Review Petition No.61 of 2004).

Police Act (IV of 1861)-----

----S. 30---Licence for taking out procession and holding of Majlis--­Application for grant of---Duty of Superintendent of Police--­Superintendent of Police would remain neutral and proceed even­handedly strictly as mandated by law.

Gulzarin Kiani, Advocate Supreme Court and M. S. Khattak, Advocate-on-Record for Petitioner.

Akbar Ali (D. S. P.) Legal for Respondents Nos.1 to 3.

Muhammad Bilal Advocate Supreme Court and Ch. Muhammad Akram Advocate-on-Record for Respondent No.4.

Date of hearing: 18th January, 2005.

2005 S C M R 998

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Hamid Ali Mirza, JJ

MUHAMMAD AKRAM RAHI and another---Petitioners

Versus

THE STATE and another---Respondents

Jail Petition No. 198 along with Criminal Petitions Nos.480-L and 481-L of 2002, decided on 22nd March, 2005.

(On appeal from the judgment dated 23-4-2002 in Criminal Appeal No.43/J of 1998, Criminal Appeal No.108/J of 1998, Criminal Appeal No.425 of 1998 and Murder Reference No.198/T of 1998 passed by the, Lahore High Court, Lahore).

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

---Ss. 302/324/34/109---Qanun-e-Shahadat (10 of 1984), Art.22--­Constitution of Pakistan (1973), Art. 185(3)---Identification parade---One accused was sentenced to death penalty whereas the second accused was sentenced to life imprisonment---Contention of accused was that they were put to identification parade in jail, before they were arrested in the case---Leave to appeal was granted by Supreme Court for deeper appreciation of evidence.

Sardar M. Saddique Khan, Advocate Supreme Court for Petitioner (in Jail Petition No. 198 of 2002).

M.A. Zafar, Advocate Supreme Court for Petitioners (in Criminal Petitions Nos.480 and 481-L of 2002).

Nemo for Respondents (in all cases).

Date of hearing: 22nd March, 2005.

2005 S C M R 1000

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Tassaduq Hussain Jillani, JJ

GHULAM RASUL---Petitioner

Versus

MUHAMMAD SHAFI and another---Respondents

Civil Petitions Nos.491/L and 492/L of 2001, decided on 25th August, 2004.

(On appeal from the judgment/ order dated 31-10-2000 passed by Lahore High Court, Multan Bench in Civil Revision No.32-L of 1984 and R. S. A. No. 42.of 1985).

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

----S. 15---Qanun-e-Shahadat (10 of 1984), Art.153---Constitution of Pakistan (1973), Art.185(3)---Pre-emption suit---Superior right of pre­emption ---Vendee claimed to be owner of land in the estate on basis of gift---Earlier suit filed by pre-emptor to pre-empt sale through such gift was dismissed on the ground that transaction was not sale---Statement of vendee recorded in earlier suit was produced in evidence by pre-emptor to contend that vendee had obtained one Kanal of land for residential purposes thus, he was not owner of agricultural land in the estate---Plea of vendee was that as he was not confronted with his previous statement, same could not be used as evidence against him---Plea of pre-emptor was that vendee during cross-examination in the present suit had admitted to have obtained one Kanal of land for agricultural purposes---Trial Court as well, as Appellate Court decreed suit, but High Court non-suited pre­emptor ---Supreme Court granted leave to appeal, inter alia, to examine such contentions of the parties.

Shah Muhammad v. M.T. Piari AIR 1936 Lah. 202 and Salehon Muhammad v. Shera and others 1977 SCMR 297 ref.

Mian Yasin Zafar, Advocate Supreme Court and T4nvir Ahmed, Advocate-on-Record for Petitioner (in both cases).

Ehsan-ul-Haq Chaudhry Advocate Supreme Court for Respondents (in both cases).

Date of hearing: 25th August , 2004.

2005 S C M R 1004

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Faqir Muhammad Khokhar, JJ

MUHAMMAD HANIF and another---Petitioners

Versus

GHULAM RASOOL through L.Rs. and others---Respondents

Civil Petitions Nos. 104 and 340 of 2003, decided on 28th December, 2004.

(On appeal from the judgment dated 15-11-2002 passed by Lahore High Court, Rawalpindi Bench in Civil Revision No. 265 of 1992 in both cases).

(a) Pakistan (Administration of Evacuee Property) Act (XII of 1957)-----

----S. 25(2)(L)(S)---Specific Relief Act (I of 1877), S.42---Limitation Act (IX of 1908), Ss. 19, 28 & Art. 148---Declaration of title--­Redemption of mortgage land---Limitation---Failure to give notice under S.25(2)(L) of Pakistan (Administration of Evacuee Property) Act; 1957---Plaintiff filed a suit seeking declaration that suit7land was never mortgaged with non-Muslims---Plaintiff also assailed the entries in that behalf appearing in Revenue Record being incorrect and wrongly made at the time of attestation of mutation of inheritance---Trial Court dismissed the suit treating it to be barred by time under Art.148 read with S.28 of Limitation Act, 1908---Judgment and decree passed by Trial Court was maintained by Appellate Court but High Court in exercise of revisional jurisdiction decreed the suit---Validity---Powers under S.25(2)(L) of Pakistan (Administration of Evacuee Property) Act, 1957, were delegated to Deputy Rehabilitation and Assistant Rehabilitation Commissioner to issue notice to local mortgagors to redeem the property within one month failing which the property would be liable to be auctioned under S.25(2)(s) of Pakistan (Administration of Evacuee Property) Act, 1957---No such notice was given to mortgagors and consequently from the acknowledgement of the right of redemption, a fresh period of limitation would be computed to exercise such right in terms of S.19 of Limitation Act, 1908---Limitation for the purpose of seeking redemption of mortgaged property in a civil suit would be counted from the date of acknowledgement of right of equity of mortgage---If suit for redemption of mortgage would have been filed beyond the normal period of sixty years prescribed under the law, after acquisition of full ownership rights by Central Government, it would have been hit by bar of limitation under S.28 read with Art.148 of Limitation Act, 1908---In the present case only the mortgagee rights of non-Muslim evacuee were with Central Government and since the right of equity of redemption of mortgagors stood acknowledged by memorandum dated 8-12-1959, the limitation of redemption of mortgage would be counted from the date of acknowledgement in terms of S.19 of Limitation Act, 1908, and not from the date of mortgage and notwit3istanding the provisions of S.5 of Pakistan (Administration of Evacuee Property) Act, 1957, which could exclude the effect of S.13 of Limitation Act, 1908 in the cases in which evacuee interest in the properties vested in Central Government, the suit for declaration / redemption of mortgage would not be hit by bar of limitation---Supreme Court declined to interfere with the judgment passed by High Court--­Leave to appeal was refused.

Samar Gul v. Central Government and others PLD 1986 SC 35; Muhammad Khan v. Chief Settlement and Rehabilitation Commissioner PLD 1962 SC 284 and Abdul Latif v. Government of West Pakistan and others PLD 1962 SC 384 ref.

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

----S. 42---Limitation Act (IX of 1908), S.19 & Art. 148---Declaration of title through redemption of. mortgage---Scope---Such suit was a composite suit in which declaration as well as redemption of mortgage was sought and defendants being on notice about the real nature of the suit, no prejudice would be caused to them on account of grant of relief of redemption of mortgage in the suit for declaration.

Manzoor Ahmed Rana, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner (in C.P. No.104 of 2003).

Muhammad Munir Peracha, Advocate Supreme Court for Petitioner (in C.P. No.340 of 2003).

Sh. Zamir Hussain, Advocate Supreme Court for Respondents (in C. P. No. 104 of 2003).

Nemo for Respondents (in C.P. No.340 of 2003).

Date of hearing: 28th December, 2004

2005 S C M R 1011

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Muhammad Nawaz Abbasi, JJ

MUHAMMAD SAEED and another---Petitioners

Versus

COLLECTOR, CUSTOMS, CENTRAL EXCISE, PESHAWAR---Respondent

Civil Petition No.59-P of 2004, decided on 27th January, 2005.

(On appeal from the judgment, dated 30-12-2003 passed by Peshawar High Court, Peshawar, in F.A.O. 9 of 2002).

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

----Ss. 2(s), 156(1)(89) & 187---Constitution of Pakistan (1973), Art. 185(3)---High Court in post-remand proceedings, maintained order of confiscation of imported black tea loaded in a truck owned by petitioners passed by Additional Collector (Adjudication) and allowed appeal of the Department with the observation that tea in dispute was of foreign origin and was brought into Pakistan without payment of Customs duty and was smuggled one---Contention of petitioners was that disputed tea was purchased from local market and that there was not an iota of evidence in support of allegation that tea seized by police, was of foreign origin which was brought into Pakistan through an unauthorized route without payment of duty and was covered by definition of `smuggling' under S.2(s) of Customs Act, 1969, liable to be confiscated---Department contended that tea was smuggled one and was rightly confiscated as same was brought into Pakistan without payment of Customs duty---Leave to appeal was granted by Supreme Court to consider questions as to what was the proof of the confiscated black tea being of foreign origin which was brought into Pakistan without payment of duty and would be treated smuggled in terms of section 2(s) of the Customs Act, 1969; that whether the sale of black tea of the kind which was seized and confiscated as smuggled, was prohibited in the open market and its transportation in commercial quantity inside the country was restricted or that possession or such tea at large scale would ipso facto be an, evidence of it being smuggled; that whether, without discharging the initial burden of proving the smuggled character of the goods by the Department a presumption under section 187 of the Customs Act, 1969 could be raised qua the nature of goods and whether the High Court had properly attended the questions of law involved in the customs appeal as directed in the remand order by Supreme Court.

Muhammad Munir Peracha, Advocate Supreme Court and Muhammad Jamil Khan, Advocate Supreme Court for Petitioners.

Tasleem Hussain, Advocate-on-Record for Respondent.

Date of hearing: 27th January, 2005.

2005 S C M R 1014

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas, and Hamid Ali Mirza, JJ

Mian AFTAB A. SHEIKH and others---Petitioners

Versus

Messrs TRUST LEASING CORPORATION LTD. and another---Respondents

Civil Petition No.216 of 2003, decided on 5th November, 2004.

(On appeal from the judgment/order, dated 4-12-2002 passed by Lahore High Court, Lahore in R.F.A. No.486 of 1999).

(a) Supreme Court Rules, 1980---

----O. XXXIII, R.6 & O.XXVI---Constitution of Pakistan (1973), Arts. 185(3) & 188---Provision of O.XXXIII, R.6, Supreme Court Rules, 1980, confers inherent powers upon the Court to make such order as may be necessary for the ends of justice or to prevent abuse of the process of the Court---Ordinarily, inherent powers are exercised when no provision of law is available to cater the situation---Where, however, the order is not the result of abuse of process of the Court nor it is in the interest of justice to recall the said order, if at all the petitioners were aggrieved of the order, they should have filed a review petition in terms of Art. 188 of the Constitution read with O.XXVI of the Supreme Court Rules, 1980.

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

----Ss. 10 & 22---Constitution of Pakistan (1973), Art. 185(3)---Leave to appear and defend the suit before Banking Court---Defendants had failed to make out a case for leave to appear and defend the suit and application under S.12(2), C.P.C. moved by the defendants was also dismissed and decree was passed by the Banking Court in which High Court had also declined to interfere in appeal---No case having been made out for grant of leave to appeal to the Supreme Court, petition for leave to appeal was dismissed.

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

----Art. 185(3)---Petition for leave to appeal---Contempt of Court---Non compliance with the order of the Supreme Court---Petitioner had intentionally failed to comply with the order of the Supreme Court passed during the proceedings---Petition for leave to appeal having been dismissed on merits, notice was issued to the petitioner to appear and explain as to why action of contempt of Court may not be taken against him.

Mian Fazl-e-Mehmood, Senior Advocate Supreme Court, M. Raza Kazim, Senior Advocate Supreme Coon Syed Iftikhar Hussain Shah, Advocate Supreme Court. Ch Mehdi Khan Mehtab, Advocate-on­-Record for Petitioners. (Petitioner No.1 (in person).

Syed Najam-ul-Hassan Kazmi, Advocate Supreme Court with M.A Zaidi, Advocate-on-Record for Respondents.

Date of hearing: 5th November, 2004.

2005 S C M R 1020

[Supreme Court of Pakistan]

Present: Javed Iqbal, Falak Sher and Karamat Nazir Bhandari, JJ

FALAK SHER--- Petitioner

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB, LAHORE and 2 others---Respondents

Civil Petition No. 2795 /L of 2000, decided on 11th April, 2003.

(On appeal from the judgment, dated 12-4-2000 of the Punjab Service Tribunal, Lahore, passed in Appeal No.707 of 1994).

Punjab Police (Efficiency and Discipline) Rules, 1975---

----R. 6---Constitution of Pakistan (1973), Art.212(3)---Departmental proceedings---Acquittal by Criminal Court---Effect---Time barred petition for leave to appeal to Supreme Court---Failure to give any justification of delay---Civil servant was on guard duty when two criminals escaped from the custody---In departmental proceedings, the civil servant was compulsorily retired whereas the Service Tribunal allowed the appeal partially and converted the penalty of compulsory retirement into forfeiture of one year's approved service---Plea raised by the civil servant was when he was acquitted by the Criminal Court, then he should have been reinstated unconditionally---Validity---Acquittal by a Criminal Court had no substantial bearing on the initiation of disciplinary action and any penalty awarded as a result thereof being not interchangeable and synonymous proceedings---Legal formalities as envisaged in Punjab Police (Efficiency and Discipline) Rules, 1975, were adhered to and no injustice had been done to the civil servant---Present petition was barred by 166 days and no plausible justification could he put forth on the basis of which such an inordinate delay could be condoned---Conclusion arrived at by the Service Tribunal was in accordance with law and settled norms of justice and the same did not warrant any interference by Supreme Court---Leave to appeal was refused.

Deputy Inspector-General Police v. Anis-ur-Rehman Khan PLD 1985 SC 134; Muhammad Ayub v. Chairman, E.B. WAPDA PLD 1987 SC 195; Muhammad Nazir v. Superintendent of Police 1990 SCMR 1556; Talib Hussain v. Anar Gul Khan 1993 SCMR 2177 and Arif Ghafoor v. Managing Director PLD 2002 SC 13 rel.

Syed Sardar Shah Bukhari, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 11th April, 2003.

2005 S C M R 1022

[Supreme Court of Pakistan]

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

Messrs PAK FOREST INDUSTRIES (PVT.) LTD. ---Appellant

Versus

FEDERATION OF PAKISTAN and another---Respondents

Civil Appeal No.5 1 of 1998, decided on 4th December, 2003.

(On appeal from the judgment/order dated 13-11-1996 passed by Sindh High Court in C.P. No.723 of 1995).

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

----S. 33---S.R.O. 50(I)/1992, dated 28-1-1992---S.R.O. 484(I)/1992, dated 14-5-1992---Refund of customs duty, claim for---Importer sold goods through agreement, under which purchaser was liable to pay customs duty---Importer executed power of attorney in favour of purchaser to act on his behalf for purpose of receiving any amount due on import of goods---Purchaser cleared goods by paying customs duty in the name of importer---Goods were exempt from payment of customs duty under S.R.Os. 50(I)/1992 & 484(I)/1992, thus, purchaser claimed its refund in his own right, but not as attorney of importer ---Validity-­Refund of customs duty could be claimed under law by importer of Goods---If customs duty was paid by purchaser on behalf of importer as his attorney under sale agreement, then he might have a right to recover same from importer by filing suit on its refund to importer---Purchaser had not got himself acknowledged as importer before Customs Authority for purpose of claiming refund in his own right---Importer had not claimed refund nor he was made party in proceedings before authority---If purchaser had suffered any loss on account of inaction of importer in matter of claiming refund, he might sue him, if law provided any remedy ---Purchaser in his own right, could not maintain such claim.

Tariq Khokhar, Advocate Supreme Court for Appellant.

Raja Abdul Ghafoor, Advocate-on-Record for Respondents Nos. 3 and 4.

Remaining Respondents Ex parte.

Date of hearing: 4th December, 2003.

2005 S C M R 1025

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Khalil-ur-Rehman Ramday and Falak Sher, JJ

CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB, LAHORE and another---Petitioners

Versus

AZHAR HUSSAIN ---Respondent

Civil Petition No.2053/L of 2003, decided on 11th February, 2004.

(On appeal from the judgment/order, dated 12-5-2003 passed by the Punjab Service Tribunal, Lahore in Appeal No.488 of 2003).

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

----Ss. 4 & 5---Constitution of Pakistan (1973), Art.212(3)---Reinstating in service---Alteration of penalty---Service Tribunal partially accepted appeal of the civil servant and while reinstating him in service, converted period between dismissal and reinstatement into leave of the kind due---Plea raised by the authorities was that the civil servant could not be reinstated as the charge of corruption had been proved against him--­Validity---Service Tribunal had acted in exercise of powers conferred Upon it under S.5 of Punjab Service Tribunals Act, 1974 and properly reduced quantum of punishment in view of the fact that six other officers of the department were responsible along with the civil servant equally for causing damage and shortage of wheat to Government of Punjab -but no action had been taken by the department against them--­Judgment passed by Service Tribunal being just and proper admitted no interference by Supreme Court---Leave to appeal was refused.

Abdul Wahid v. General Manager and others 2004 SCMR 154 distinguished.

Ms. Yasmin Sehgal, Asstt. A.-G. (Pb.) and Aziz Ahmed Chughtai, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 11th February, 2004.

2005 S C M R 1027

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Falak Sher, JJ

Mian AFTAB A. SHEIKH and others--- Petitioners

Versus

Messrs TRUST MODARABA and another---Respondents

Civil Petition No.626-L of 2003, decided on 22nd April, 2003.

[On appeal from the judgment of the Lahore High Court, Lahore, dated 23-1-2003 passed in R.F.A. No.466 of 1999].

(a) Modaraba Companies and Modaraba (Floatation and Control) Ordinance (XXXI of 1980)---

----S. 2(a)---Limitation Act (IX of 1908), S.19 & Art.5---Suit for recovery of money provided from Modaraba fund to defendant company---Limitation---Contention of defendant was that suit was barred by time for having been filed after expiry of one year from the date when such amount had become recoverable---Validity---Chief Executive of defendant company had acknowledged liability---Suit having been filed within extended period was within period of limitation.

Fine Textile Mills Ltd. Karachi v. Haji Umar PLD 1963 SC 163 ref.

(b) Modaraba Companies and Modaraba (Floatation and Control) Ordinance (XXXI of 1980)---

----Ss. 2(a)(b) & 26(2)---Civil Procedure Code (V of 1908), O.XXXVII---Suit for recovery of money provided from Modaraba fund by Modaraba Company for doing business to defendant with his skill---Such suit would be exclusively triable by Tribunal established under Modaraba Companies and Modaraba (Floatation and Control) Ordinance, 1980---Such suit was not a suit directly under O.XXXVII, C.P.C., in ordinary Court---Tribunal was required to follow merely procedure of summary trial as provided under O.XXXVII, C.P.C.

Syed Iftikhar Hussain Shah, Advocate Supreme Court, Mahmudul Islam, Advocate-on-Record for Petitioners.

Sh. Naseer Ahmed, Advocate Supreme Court and Umer Mahmood Kasuri, Advocate Supreme Court and Ch. Talib Hussain, Advocate-on-Record for Respondents.

Dates of hearing: 21st and 22nd April, 2003.

2005 S C M R 1032

[Supreme Court of Pakistan]

Present: Javed Iqbal, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

BINYAMIN MASIH---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary Education, Lahore and 4 others --- Respondents

Civil Petition No.763/L of 2000, decided on 7th March, 2003.

(On appeal from the judgment/order dated 11-2-2000 of the Punjab Service Tribunal Lahore, in Service Appeal No.513 of 1996).

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

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Reinstatement --­Back benefits---Misinterpretation of judgment of High Court---Salary of civil servant was withheld by the authorities without any justification--­Matter was agitated by the civil servant before High Court in Constitutional petition---High Court dismissed the petition with the direction to the civil servant to approach Service Tribunal for redressal of his grievance---Authorities misinterpreted the order passed by the High Court and terminated the service of the civil servant---Appeal against the order of termination was allowed by the Service Tribunal and the civil servant was reinstated to service---Plea raised by the civil servant was that the period during which he remained out of service could not be treated as leave of the kind due to him ---Validity--­Authorities could not furnish any justification on the basis whereof the service of the civil servant could be terminated---Civil servant had suffered a lot without any fault on his part due to the blunder committed by the department which was regrettable and spoke volume about the efficiency and good governance of the department concerned---Supreme Court converted petition for leave to appeal into appeal and the judgment of Service Tribunal was modified and authorities were directed to pay the salary to the civil servant for the concerned period---Appeal was allowed.

Ch. Muhammad Afzal Wahlah, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record (absent) for Petitioner.

Irshadullah Bhatti, Asstt. Director (Legal) O/O the EDO(E) Hafizabad, Muhammad Yousaf Bhatti, District Education Officer and Abid Ali Shah, Asstt. Education Officer for Respondents.

Date of hearing: 7th March, 2003.

2005 S C M R 1034

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Hamid Ali Mirza and, Sardar Muhammad Raza Khan, JJ

MUHAMMAD ZULFIQAR---Petitioner

Versus

THE STATE---Respondent

Jail Petition No. 197 of 2002, decided on 5th March, 2003

(On appeal from the judgment dated 16-4-2002 of Lahore. High Court. Lahore passed in Crl. A. No. 154/J of 2000 and M.R. No.242 of 2000).

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

----Ss. 302(b), 365, 392 & 411---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted to accused to consider, inter alia whether under the facts and circumstances last seen evidence produced by the prosecution and the recovery of the incriminating articles, could be relied upon and the same were sufficient to establish the guilt of the accused, especially when the prosecution evidence in respect of the co-accused was disbelieved on the ground that "contradictory statements" were given in respect of them, and whether the principles of safe dispensation of criminal justice laid down by Supreme Court in various cases were followed.

Sardar M. Siddique Khan, Advocate Supreme Court for Petitioner.

Sardar Muhammad Ghazi, Advocate Supreme Court and M.A Zaidi, Advocate-on-Record for Respondent.

Date of hearing: 5th March, 2003.

2005 S C M R 1035

[Supreme Court of Pakistan]

Present: Javed Iqbal, Falak Sher and Karamat Nazir Bhandari, JJ

ZAHOOR HUSSAIN ---Petitioner

Versus

PRINCIPAL OF GOVERNMENT COLLEGE, SAHIWAL and others---Respondents

Civil Petitions Nos. 1240/L and 1241/L of 2000, decided on 17th April 2003.

(On appeal from the judgment, dated 20-3-2000 the Punjab Service Tribunal, Lahore, passed in Appeals Nos.1312 and 1313 of 1998).

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

----S. 4---Constitution of Pakistan (1973); Art.212(3)---Expunction of remarks---Bias in the mind of reporting officer---Proof--- Question of subjective assessment---Jurisdiction of reporting officer ---Scope--­Grievance of civil servant was that the reporting officer had given adverse remarks against him in his Annual Confidential Report and that was just because of bias in the mind of the officer---Service Tribunal declined to expunge the remarks---Validity---Had the reporting officer been biased, the civil servant would have not been able to get "good" reports regarding his intelligence, confidence, knowledge of Islam and knowledge towards Ideology of Islam---Power of expression, knowledge of work .and analytical ability of the civil servant had been appreciated which could not have been done by a biased reporting officer---Question of subjective assessment was within the supervisory domain of reporting officer which could not be interfered with unless some convincing and cogent reasoning was available and the same was lacking' in the instant case---No question of law of public importance was involved in the matter persuading Supreme Court to grant leave---Conclusion as arrived at by the Punjab Service Tribunal was in accordance with law and settled norms of justice and being well based, did not call for any interference---Leave to appeal was refused.

Azam Riaz Farooqi v. Board of Revenue, Punjab, Lahore 1989 SCMR 320 and Muhammad Naseem, v. Secretary, Government of Punjab 1989 SCMR 1149 rel.

Syed Aqa Asif Jaffery, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record (absent) for Petitioner.

Professor Zulfiqar Ahmad, Government College, Sahiwal for Respondent.

Date of hearing : 17th April, 2003.

2005 S C M R 1038

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Faqir Muhammad Khokhar, JJ

MUHAMMAD PARVAIZ---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.430 of 2002, decided on 22nd April, 2003.

(On appeal from the judgment dated 16-10-2002 of Lahore High Court, Lahore passed in Crl. Appeal No. 1194 of 2001).

Explosive Substances Act (XI of 1908)-----

----Ss. 4 & 5-A---West Pakistan Anus Ordinance (XX of 1965), S.13--­Constitution of Pakistan (1973), Art.185(3)---No private person was associated in recovery proceedings. although so could be done very easily---Evidence of both the police officials was tainted with doubts and did not inspire confidence---Police Officer who was supposed to give entire facts had deliberately concealed the same ---Was not believable that despite the raids having been made so many times at the house of accused, he was not known to the police officials when his brothers and mother were well-known to them---Recovery of the incriminating articles, thus, had not been satisfactorily proved--Accused was acquitted in circumstances by converting the petition for leave to appeal into appeal.

Sardar Muhammad Siddiqui, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.

Dil Muhammad Tarar, Advocate Supreme Court for the State.

Date of hearing: 22nd April, 2003.

2005 S C M R 1040

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

BASHIR AHMED and others---Petitioners

Versus

DEPUTY DISTRICT EDUCATION OFFICER (M) and others---Respondents

Civil Petitions Nos.3318-L and 3351-L to 3356-L of 2002, decided on 25th February, 2003.

(On appeal from the judgment dated 10-7-2002 of, the Punjab Service Tribunal, Lahore, passed in A.No.1680 of 2001).

(a) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975-----

----Rr. 4(1)(b), 5 & 6---Punjab Civil Servants Act (VIII of 1974), S.11--­Punjab Service Tribunals Act (IX of 1974), S.4---General Clauses Act (X of 1897), S.21---Constitution of Pakistan (1973), Art.212(3)--­Removal from service---Appointment as PTC teacher gained on basis of bogus order---Dismissal of appeal by Service Tribunal ---Validity--­District Recruitment Committee had never recruited petitioner--­Selection List for relevant period did not find mention name of petitioner---No legal sanctity could be attached to copy of Selection List produced by petitioner before Tribunal for not being signed by Chairman, District Recruitment Committee-Petitioner had been removed from service after scrutiny of entire record and affording him proper opportunity of hearing---Petitioner could not prove genuineness or appointment order by adducing `cogent and concrete documentary evidence---No perpetual rights could be gained on basis of such illegal order---Principle of locus poenitentiae would not apply to such case--­Findings of Tribunal being well-based would not warrant interference--­No misconception of law or fact or question of law of public importance was involved---Petitioner for having manoeuvred his fake appointment would not fall within definition of "civil servant" stricto senso---Major penalty of removal from service could not be imposed on petitioner---Supreme Court partly accepted appeal by converting, penalty of removal from service into that of termination from service.

Zahoor Ahmad Awan v. The State 1997 SCMR 1543 and 2000 SCMR 907 ref.

(b) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975-----

----R. 4(1)(b)---Punjab Civil servants Act (VIII of 1974), S.2--­Appointment gained on basis of bogus/fake order---Removal from service---Validity---Such appointee would not fall within definition of "civil servant" stricto senso for not having been appointed in accordance with law, but having manoeuvred his fake appointment---Major penalty of removal from service, in such circumstances, could not have been imposed on such appointee---Such penalty was converted into that of termination from service.

Ahmad Awaiz Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Petitioners (in all cases).

Syed Shabbar Raza Rizvi, Advocate-General, Punjab for Respondents (in all cases).

Date of hearing: 25th February, 2003.

2005 S C M R 1044

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

PEHALWAN and others---Petitioners

Versus

ALI AHMAD---Respondent

Civil Petition No.1478-L of 1999, decided on 9th January, 2003.

(On appeal from the judgment dated 28-6-1999 passed by the Lahore High Court, Multan Bench, Multan in F.A.O. No.60. of 1999).

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

----O. VIII, R. 10---Amended written statement, non-filing of---Striking off defence---Defendants could not file amended written statement on two dates resultantly, Trial Court struck off the defence and suit was decreed against them---Order passed by Trial Court was maintained by High Court in exercise of appellate jurisdiction---Validity---Trial Court acted in oblivion of the factual position in directing defendants to file amended written statement as if a written statement had already been filed---Even otherwise orders of both the dates did not spell out clearly that filing of written statement was positively required by Trial Court--­In the facts and circumstances of the present case, provisions of O.VIII, R.10 C.P.C. were not attracted to strike off the defence of defendants by Trial Court---Judgments passed by Trial Court and High Court were not in conformity with the law laid down by Supreme Court---Judgment passed by High Court was set aside, the appeal of the defendants was allowed and the case was remanded to Trial Court for filing of written statement by the defendants-- -Appeal was allowed.

Col. (Retd.) Ayub Ali Rana v. Dr. Carlite S. Pune and another PLD 2002 SC 630 fol.

Mian Fazal-e-Mehmood, Senior Advocate Supreme Court for Petitioners.

Rana M. Sarwar, Advocate Supreme Court for Respondent.

Date of hearing: 9th January, 2003.

2005 S C M R 1046

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

SIKIANDAR HAYAT KHAN and others---Petitioners

Versus

SETTLEMENT COMMISSIONER and others---Respondents

Civil Petition for Leave to Appeal No.200/L of 2002, decided on 16th January, 2003.

(On appeal from the judgment dated 6-11-2001 of the Lahore High Court, Lahore passed in Writ petition No.381/R of 1986)).

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

----Art. 185(3)---Petition for leave to appeal---Decision on the basis of compromise---Dispute was with regard to share distribution of cinema allotted to predecessor-in-interest of the parties---Basic order of allotment dated 13.12.1971, was passed by Central Government whereby entitlement of predecessor-in-interest of the petitioners as well as his brothers was admitted on an application jointly filed by them---Order dated 13.12.1971, was never challenged by the petitioners' predecessor­ in-interest before any forum---Respondents took exception to the order and filed Constitutional petition which was disposed of by High Court on a compromise effected among the heirs of the allottees---Validity---High Court had given cogent reason to uphold the claim of respondents--- Supreme Court declined to interfere into the order passed by High Court---Leave to appeal was refused.

Mushtaq Ali Tahirkheli, Advocate Supreme Court with Mahmudu-ut-Islam, Advocate-on-Record for Petitioners.

Jariullah Khan, Advocate Supreme Court with C.M. Latif, Advocate-on-Record for Respondents Nos.2, 3 and 5.

Date of hearing: 16th January, 2003.

2005 S C M R 1049

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

NASIR JAMAL QURESHI---Petitioner

Versus

SINDH LABOUR APPELLATE TRIBUNAL and another---Respondents

Civil Petition for Leave to Appeal No. 397/K of 2002, decided on 17th March, 2003.

(On appeal from the order, dated 16-1-2002 passed by the High Court Sindh, Karachi in C.P. NO.D-844 of 2001).

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

----Ss. 2(xxviii), 25-A & 37(3)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O.12---Constitution of Pakistan (1973), Art.212(3)--­Termination of service---Workman---Determination of---Petitioner initially was appointed as Area Sales Representative and subsequently was promoted as Territory Representative---Petitioner, who was terminated from service, served grievance notice on respondent employer add after compliance of S. 25-A of Industrial Relations Ordinance, 1969, he filed grievance petition before Labour Court, which was allowed by Labour Court---Appeal filed by respondent employer against judgment of Labour Court was accepted by Labour Appellate Tribunal and judgment of Labour Court was set aside---Constitutional petition filed by petitioner/ employee against judgment of Labour Appellate Tribunal having been dismissed by High Court, petitioner had filed petition for leave to appeal before Supreme Court---Validity---Labour Appellate Tribunal and High Court held that grievance petition filed by petitioner, was not maintainable as he was not workman---Petitioner was serving as Sales Representative; selling required imagination, application of mind and know-how of the things offered for sale to the customers who were expected to buy the products offered for sale---While making sale, Sales Representative could also undertake some incidental manual work, but by doing such small manual work connected with sale of product, his status could not be changed nor for that reason he could be regarded as workman as his job was to sell the products for which he had to use faculty of his mind and wisdom and not only manual or clerical work--­Appointment order had spelled out in details of the terms and conditions on which appointment of petitioner was made---If intention was to induct petitioner as a workman, it was not necessary at all to issue such detailed appointment order---Appointment of petitioner being of contractual nature of master and servant,, it was necessary to spell out the details of terms and conditions on basis of which the appointment was made--­Labour Appellate Tribunal and High Court had rightly held that petitioner was not workman and his grievance petition was not competent---In absence of any legal or factual infirmity, judgment passed by Labour Appellate Tribunal and High Court could not be interfered with by Supreme Court---No substantial question of law of public importance being involved in petition for leave to appeal same was dismissed.

PLD 1961 SC 403; PLD 1975 Kar. 279; Yousuf Ali v. Quetta Sareena Hotel 2001 SCMR 1813 and Mustehkum Cement v. Abdul Rahim 1998 SCMR 644 ref.

Muhammad Muzaffar-ul-Haque, Advocate Supreme Court and Faizanul Haq, Advocate-on-Record for Petitioner:

Nemo for Respondents.

Date of hearing: 17th March, 2003.

2005 S C M R 1054

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Falak Sher Karamat Nazir Bhandari, JJ

GHULAM SARWAR and others---Petitioners

Versus

SAJID ULLAH and others---Respondents

Cr.Ps. Nos.787, 791, 797 and 803-L of 2001, decided on 11th June, 2003.

(On appeal from the judgment dated 26-10-2001 passed by the Lahore High Court, Lahore in Criminal Appeals Nos.433 and 459 of 1998 and Criminal Revision No.215 of 1998).

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

----S. 302(b)/34---Constitution of Pakistan (1973), Art. 185(3)---Presence 6f eye-witnesses at the place of occurrence at the relevant time was natural and believable---Eye-witnesses had no reason or motive to falsely implicate the accused in the occurrence---Parties being closely related to each other, question of mistaken identity of accused did not arise--­Ocular testimony was corroborated by medical evidence---Leave to appeal was refused to accused in circumstances.

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

----S. 302(b)/34---Constitution of Pakistan (1973), Art. 185(3)--­Enhancement of sentence---Accused was found entitled to lesser penalty of imprisonment for life because of young age and because of the insult offered to his father by the deceased---Discretion exercised by High Court was neither arbitrary nor whimsical and the same warranted no interference---Leave to appeal was refused to complainant accordingly.

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

----S. 302(b)/34---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---Accused had been acquitted by High Court on the ground that medical evidence did not support the eye-witness account to the extent of injuries ascribed to him which was borne by record--­Possibility of the accused having been dragged into the case on account of being a brother of the principal accused could not be ruled out--­Benefit of doubt extended to accused by High Court was not exceptionable---Leave to appeal was declined to complainant accordingly.

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

----S. 302(b)/34---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---Accused was the father of the other three accused and he was empty-handed at the time of occurrence and had not caused any injury to any body---Role attributed to co-accused was that at his instance his father and his two brothers had committed the crime---Said accused was not even present at the place of occurrence at the relevant time---No evidence worth any credit was led to establish that the deceased had been murdered at the instance of accused---Acquittal recorded in favour of both the accused by the Trial Court and maintained by' High Court did not admit of any interference in circumstances--Leave to appeal was declined to complainant accordingly.

M.A. Zafar, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners (in C.Ps. Nos.787, 797 and 803-L of 2001).

Masood-ur-Rehman Mirza, Advocate Supreme Court for Respondent (Sajid Ullah) (for Petitioner in C.P. No.791-L of 2001).

Date of hearing; 11th June, 2003.

2005 S C M R 1059

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

SECRETARY, HEALTH DEPARTMENT, GOVERNMENT OF THE PUNJAB, LAHORE and others---Petitioners

Versus

Dr. FAZAL-UR-REHMAN --- Respondent

Civil Petition No. 157-L of 2003, decided on 27th February, 2003.

(On appeal from the judgment dated 9-10-2002 passed by the Punjab Service Tribunal, Lahore, in Appeal No. 1325 of 2002).

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

----S.4---Constitution of Pakistan (1973), Art.212(3)---Order passed by Service Tribunal, non-compliance of---Authorities failed to decide representation of civil servant within two months as directed by Service Tribunal---Period during which the representation of civil servant remained pending was declared by the authorities to be extra-ordinary leave without pay---Service Tribunal allowed appeal and declared that the civil servant was entitled to full pay for the period; --Validity---Civil servant could not be made to suffer for inaction and inordinate delay on the part of authorities to take a decision on the matter of transfer in time---Authorities ought to have suspended the operation of their earlier order accordingly---No legal infirmity was found in the judgment passed by Service Tribunal---No question of ,law of public importance was involved in the petition so as to warrant interference under Art.212(3) of the Constitution---Leave to appeal was refused.

Aziz Ahmad Chughtai, Advocate Supreme Court and Rao Muhammad. Yousaf Khan, Advocate-on-Record for Petitioners.

Hafiz Tariq Nasim, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Respondent.

Date of hearing: 27th February, 2003.

2005 S C M R 1061

[Supreme Court of Pakistan]

Present: Falak Sher and Karamat Nazir Bhandari, JJ

MUHAMMAD IBRAHIM and 44 others---Petitioners

Versus

FATEH ALI and 30 others---Respondents

Civil Petition No.361-L of 2000, decided on 24th February, 2003.

(On appeal from the judgment dated 7-10-1999 of the Lahore High Court, Lahore passed in C.R. No. 1736 of 1996).

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

----Ss. 8 & 42---West Pakistan Land Revenue Act (XVII of 1967), S.42---Constitution of Pakistan (1973), Art. 185(3)---Declaration of title and recovery of possession---Agreement to sell, proof of ownership--­Plaintiff assailed disputed mutation and sought recovery of suit land--­Defendant claimed title over the suit land on the basis of agreement to sell but the original agreement was not produced before Trial Court---To prove the agreement, defendant produced register of petition writer and copy of relevant page of the register was admitted in evidence---Trial Court decreed the suit in favour of plaintiff but judgment and decree passed by Trial Court was set aside by Appellate Court---High Court in exercise of revisional jurisdiction decreed the suit and restored the judgment and decree passed by Trial Court---Contention of the defendant was that the statement of petition writer and copy of relevant page of the register could lead to the inference that the parties had agreed to share the suit land and disputed mutation was passed on the basis of the agreement---Validity---High Court had rightly rejected the contention of defendant as copy of relevant page of the register could only show that there was some agreement drafted by petition writer--­Agreement itself did not create any right or interest in property as it could only confer a right of enforcement of promise---Suit was rightly decreed by High Court in favour' of plaintiff---Leave to appeal was refused.

Iqbal Mahmood Awan, Advocate Supreme Court with C.M. Lateef, Advocate-on-record for Petitioners.

Taqi Ahmad Khan, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Respondents.

Date of hearing; 24th February, 2003.

2005 S C M R 1063

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

HASSAN MUHAMMAD ---Petitioner

Versus

NAZAR HUSSAIN and others---Respondents

Criminal Petition No.809-L of 2001, decided on 21st March, 2003.

(On appeal from the order dated 11-9-2002 of the Lahore High Court, Multan Bench, Multan passed in Crl. Misc. 81-Q of 2002).

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

----S. 516-A---Constitution of Pakistan (1973), Art. 185(3)---Custody of tractor---Question of title of the tractor and whether the conditions enumerated in the alleged executed agreement concerning the sale of the tractor in dispute were complied with or not, squarely fell within the ambit of Civil Court, for which the parties might approach the Civil Court---Tractor in question admittedly was neither a stolen one nor involved in the commission of any offence and the same, therefore could not have been seized under S.550, Cr.P.C.---Action of police, thus, was not only unlawful but depicted highhandedness and abuse of authority--­Shops given by the petitioner in lieu of the tractor had been rented out by the respondent who was enjoying their rent and besides an amount of Rs.1,11,000 had also been received by him from the petitioner--­Respondent was directed to hand over the tractor to the petitioner in circumstances---Petition for leave to appeal was converted into appeal and the same was accepted accordingly.

Tanveer Ahmad, Advocate-on-record for Petitioner.

Ch. Rashid Ahmad, Advocate Supreme Court for respondent No. 1.

M. Saleem Shad, Advocate Supreme Court and Abdul Latif, Sub-Inspector for the State.

Date of hearing: 21st March, 2003. .

2005 S C M R 1065

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

SINDH AGRICULTURE UNIVERSIY, TANDOJAM, through V.C.---Petitioner

Versus

MUHAMMAD URIS KHASKHELI and others---Respondents

C.P. No.98/K of 2004, decided on 5th April, 2004.

Constitution of Pakistan (1973)---

----Art. 212(3)---Civil service---Determination---Date of birth---Civil servant being aggrieved of the notice of retirement, filed appeal before Service Tribunal disputing the year of birth mentioned in the notice--­Appeal was allowed by Service Tribunal and the year as mentioned by the civil servant was accepted as correct---Validity---Leave to appeal was granted by Supreme Court to consider; whether the Service Tribunal was justified in allowing the appeal on scrutiny of the evidence on record; and whether the judgment of Service Tribunal did not suffer from misconstruction of evidence and misinterpretation of Service Rules.

Abrar Hassan, Advocate Supreme Court for Petitioner.

Nemo for Respondent No. 1.

Date of hearing: 5th April, 2004.

2005 S C M R 1067

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

MUHAMMAD SHAFIQUE---Petitioner

Versus

DEPUTY DIRECTOR FOOD and another---Respondents

Civil Petition No.702-L of 2002, decided on 24th February, 2003.

(On appeal from the judgment dated 14-11-2001 passed by the Punjab Service Tribunal, Lahore, in Appeal No.742 of 1999).

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

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Dismissal, from service---Criminal case, discharge from---Effect---Civil servant was proceeded against on the allegation of shortage of wheat from Government godown---Departmental as well as criminal proceedings were initiated against the civil servant---During the investigation of criminal case, the civil servant was discharged of the charge but in departmental proceedings the civil servant was removed from service and recovery of cost of lost wheat was also imposed on him---Service Tribunal partially allowed the appeal, penalty of removal from service was set aside but penalty for recovery of cost of lost wheat was maintained---Plea raised by the civil servant was that after his discharge from criminal case departmental proceedings could not be initiated Validity---Discharge of civil servant by police in a criminal case would not preclude authorities from taking disciplinary proceedings against him---Ipsi dixit of police regarding guilt or otherwise of an accused was not binding on departmental authorities for taking action against a delinquent civil servant under 'the rules---Lenient view had already been taken by the Tribunal in case of civil servant---No question of law of public importance as envisaged by Art.212(3) of the Constitution was involved---Leave to appeal was refused.

Arif Ghafoor v. Managing Director, H.M.C. Taxila and others PLD 2002 SC 13; Deputy Inspector-General of Police v. Anis-ur-Rehman Khan PLD 1985 SC 134; Muhammad Ayub v. The Chairman, electricity Board. WAPDA, Peshawar PLD 1987 SC 195; Muhammad Tufail v. Assistant Commissioner/Collector 1989 SCMR 316; Amir Abdullah v. Superintendent of Police and others 1989 SCMR 333; Muhammad Nazir v. The Superintendent of Police, Toba Tek Singh and others 1990 SCMR 1556; Talib Hussain v. Anar Gul Khan and others 1993 SCMR 2177; Muhammad Izharul Ahsan Qureshi v. Messrs P.I.A.C. 1994 SCMR 1608 and Mir Nawaz Khan v. Federal Government through Secretary, Ministry of Finance, Islamabad and 2 others 1996 SCMR 315 rel.

Mian Mahmood Hussain, Advocate Supreme Court and Sh. Salah-ud-Din, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 24th February, 2003.

2005 S C M R 1070

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

MUHAMMAD SALEEM---Petitioner

Versus

Mst. NUZHAT JEHAN BEGUM and others---Respondents

Civil Petition No.2622-L of 2000, decided on 3rd January, 2003.

(On appeal from the order dated 22-9-2000 of the Lahore High Court, Multan Bench, passed in Review Application No.39 of 2000).

Specific Relief Act (I of 1877)---

---S. 42---Civil Procedure Code (V of 1908), O. VII, R.11--­Constitution of Pakistan (1973), Art. 185(3)---Dismissal of suit--­Principles of res judicata---Applicability---Auction of suit property was confirmed in favour of predecessor-in-interest of defendant and the same was decided upto the Supreme Court---Plaintiff assailed the order of confirmation of auction before Civil Court---Defendant filed application under O.VII, R.11 C.P.C. but Trial Court and Appellate Court dismissed the application and revision respectively---High Court in exercise of Constitutional jurisdiction, dismissed the suit---Validity---Suit filed subsequently by the plaintiff was not maintainable and was rightly dismissed under O.VII, R.11 C.P.C. by High Court---Controversy had already been decided by Supreme Court and the order of High, Court being well based and in accordance with the dictum laid down by Supreme Court, did not warrant interference---Leave to appeal was refused.

Shaukat Ali Mehr, Advocate Supreme Court and Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 3rd January, 2003.

2005 S C M R 1075

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Falak Sher and Karamat Nazir Bhandari, JJ

SAIF ULLAH---Petitioner

Versus

ALI SHER and others---Respondents

Cr. P. L. A. No. 277-L of 2002, decided on 22nd May, 2003.

(On appeal from the judgment dated 20-3-2002 passed by the Lahore High Court, Bahawalpur Bench, in Cr. Appeal No.54 of 1990).

Penal Code (XLV of 1860)---

-----Ss. 302/324/148/149---Constitution of Pakistan (1973), Art. 185(3)--­Appeal against acquittal---No illegality in- the consistent findings of the Courts below was pointed out by the accused, nor such conclusions were shown to be the result of any misreading or non ­reading of any material available on record---Acquittal earned by the accused, thus, did not admit of any interference by Supreme Court--­Leave to appeal was refused to the complainant by the Supreme Court accordingly.

Mahmood A. Qureshi, Advocate Supreme Court/Advocate-on­ record for Petitioner.

Nemo for Respondents.

Date of hearing: 22nd May, 2003.

2005 S C M R 1077

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

FAIZ MUHAMMAD and others---Petitioners

Versus

MUKHTAR ALI ---Respondent

Civil Petition No. 1578-L of 1999, decided on 7th January, 2003.

(On appeal from the judgment dated 5-7-1999 passed by the Lahore High Court, Lahore, in C.R. No. 1040 of 1999).

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

----Art. 185(3)---Petition for leave to appeal---Raising of new plea--­Concurrent findings of facts by the Courts below---Suit was concurrently decreed against the petitioner by all the Courts below---Grievance of the petitioner was that during trial, the Trial Court did not allow him to produce additional evidence---Validity---Petitioner failed to show from the record of the case that the order of Trial Court dismissing his application for production of additional evidence was assailed before the appellate Court at any stage of proceedings---Such order was not even challenged in the grounds of appeal---Even copy of memo. of appeal was not placed on record of Supreme Court---All the Courts recorded concurrent findings of fact on the basis of the evidence produced by the parties to which no interference was called for---No misreading or non ­reading of material evidence was pointed out and the judgment of High Court did not suffer from any infirmity---Leave to appeal was refused.

Sardar Nazar Hussain Dogar, Advocate Supreme Court for Petitioners.

Nemo for Respondent.

Date of hearing: 7th January, 2003.

2005 S C M R 1079

[Supreme Court of Pakistan]

Present: Falak Sher and Karamat Nazir Bhandari, JJ

MUHAMMAD ISMAIL and 5 others---Petitioners

Versus

BASHIR AHMAD and others---Respondents

Civil Petition No.373-L of 2000, decided on 3rd March, 2003.

(On appeal from the judgment, dated 17-12-1999 of the Lahore High Court, Bahawalpur Bench, Bahawalpur passed in R.S.A. No.334 of 1973).

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

----S. 53-A---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan. (1973), Art. 185(3)---Protection of possession---Declaration of title, denial of---Plaintiff claimed to be owner in possession of suit land on the basis of part performance of agreement to sell---Defendant relying on registered sale deed in his favour, contested the suit---Trial Court decreed the suit in favour of plaintiff but Appellate Court dismissed the same---High Court partially decreed the suit in favour of the plaintiff to the extent of protection of possession under S.53-A of Transfer of Property Act, 1882---Validity---Protection to a person holding property under incomplete transaction of sale was provided under S.53-A of Transfer of Property Act, 1882, and the provision had conferred a right to protect the possession---Person holding property under an incomplete transaction could not be equated with a person claiming title on the basis of completed transaction/registered sale deed---High Court had correctly applied the law declared by Supreme Court in case titled Habibur Rehman and another vs. Mst. Wahidania and others reported as PLD 1984 S.C. 424---Leave to appeal was refused.

Habibur Rehman and another v. Mst. Wahidania and others PLD 1984 SC 424 and Mst. Akhtar Begum v. Mian Aziz and others 1985 SCMR 1617 ref.

Fazal-e-Miran Chauhan, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 3rd March, 2003.

2005 S C M R 1081

[Supreme Court of Pakistan]

Present: Tanvir Ahmad Khan and Khalil-ur-Rehman Ramday, JJ

MUHAMMAD KHAN through L.Rs. and others---Petitioners

Versus

THAL DEVELOPMENT AUTHORITY---Respondent

C.P.L.A. No.723-L of 2000, decided on 27th February, 2003.

(On appeal from the order, dated 11-2-2000 of the Lahore High Court, Lahore passed in Civil Revision No.271 of 1987).

Colonization of Government Land (Punjab) Act (V of 1912)---

----S. 10---Undoing of invalid allotments of State Lands, M.L.O. [Zone "A"] No. 14 of 1977---Constitution of Pakistan (1973), Art. 185(3)--­Permanent injunction, grant of---Suit land allotted to plaintiff was cancelled being in violation of Martial Law Order No.14 of 1977--­Plaintiff contented that his case was not of allotment made during 1-2-1972 to 4-7-1977 but it was restoration of allotment already made prior to that period, thus his case was not hit by Martial Law Order 14 of 1977---Judgment and decree passed by Trial Court in favour of the plaintiff was set aside by Appellate Court---High Court in exercise of revisional jurisdiction maintained the judgment and decree passed by the Appellate Court for the reason that the definition of allotment according to Martial Law Order No.14 of 1977 included restoration of a resumed lot---High Court, while dismissing the revision application, further observed that the order of restoration of the lot had not been produced to demonstrate that the restoration of the lot was on merits and not under the direction of Minister of Revenue---Validity---Plaintiff failed to show any illegality in the revisional judgment of High Court---Leave to appeal was refused.

Ch. Muhammad Afzal Wahla, Advocate Supreme Court of Petitioners.

Nemo for respondents.

Date of hearing: 27th February, 2003.

2005 S C M R 1084

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

SHAH MUHAMMAD ---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition for Leave to Appeal No.838/L of 2002, decided on 16th April, 2003.

(On appeal from the order dated 14-10-2002 of the Lahore High Court, Lahore, passed upon Criminal Misc. No.1 of 2002 in Criminal Appeal No.564 of 2000).

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

----S. 302(b)/34---Constitution of Pakistan (1973), Art. 185(3)--­Suspension of sentence of accused challenged---Filing and dismissal of the earlier application of the accused for suspension of their sentences by the High Court was not mentioned in the subsequent application, nor the same was reflected from the impugned order whereby their sentences had been suspended and they were released on bail ---Such suppression on the part of. accused by filing second application through different counsel was highly deprecated---Accused had taken similar ground in the subsequent application which was earlier considered and rejected--­Conduct demonstrated by the accused had deprived them of the right to avail the concession of bail---Petition for leave to appeal was consequently converted into appeal and was allowed---Bail allowed to accused by High Court through the impugned order was recalled in circumstances.

Ch. Muhammad Amin Javed, Advocate Supreme Court with Mahmudul Islam, Advocate-on-Record for Petitioner.

Raja Irshadul Haq Kiyani, Advocate Supreme Court with Ozair Chughtai, Advocate-on-Record for Respondents Nos.2 and 3.

Sohail Dar, Assistant Advocate-General, Punjab for the State.

Date of hearing: 16th April, 2003.

2005 S C M R 1086

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

ZAHID MAHMOOD Ex. A.S.-I.---Petitioner

Versus

SENIOR SUPERINTENDENT OF POLICE, GUJRAT and others---Respondents

Civil Petition No. 1148-L of 2000, decided on 4th March, 2003.

(On appeal from the judgment dated 16-2-2000 passed by the Punjab Service Tribunal, Lahore, in Appeal No.657 of 1999).

Punjab Police (Efficiency and Discipline) Rules, 1975---

----S. 6---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service--Absence from duty---Concurrent findings of fact by the forums below---Civil servant was found absent from duty at police picket at the time of raid by Station House Officer---Fact of absence from place of duty was admitted by other police officials summoned on the insistence of the civil servant--­After departmental inquiry, the civil servant was dismissed from service and the order of dismissal was maintained by Service Tribunal---Plea raised by the civil servant was that the charge against him was an outcome of prejudice against him---Validity---As such the charge against the civil servant was not an outcome of any prejudice against him but same was factually correct---Civil servant had also been personally heard by the authorities during appeal and revision---Supreme Court declined to interfere either with concurrent findings of fact or with quantum of punishment as recorded by departmental authorities and Service Tribunal respectively---Leave to appeal was refused.

Inspector-General of Police, Police Headquarter Office, Karachi and 2 others v. Shafqat Mehmood 2003 SCMR 207 distinguished.

Riyasat Ali Chaudhry, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: of 4th March, 2003.

2005 S C M R 1088

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

LAHORE DEVELOPMENT AUTHORITY and others---Petitioners

Versus

Mst. TASNEEM AKHTAR---Respondent

Civil Petition for Leave to Appeal No. 13/L of 2000, decided on 3rd March, 2003.

(On appeal from the judgment dated 22-10-1999 of the Lahore High Court, Lahore passed in Civil Revision No. 141 of 1998).

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

----S. 54---Constitution of Pakistan (1973), Art. 185(3)---Permanent injunction, grant of --Concurrent findings of fact by the Courts below--­Lahore Development Authority on 15.7.1985, issued notice to plaintiff calling upon her to stop illegal construction on her plot- Plaintiff asserted that the construction was raised according to sanctioned plan and was raised in year 1975---Assertion of the plaintiff was proved during trial and the suit was decreed in her favour by the Trial Court---Appellate Court and High Court in exercise of appellate and revisional jurisdiction respectively maintained the judgment and decree passed by the Trial Court---High Court directed the Authority not to interfere in the old construction---Validity---Lahore Development Authority failed to point out any illegality or legal infirmity in the judgment warranting interference by Supreme Court---Leave to appeal was refused.

Muhammad Rashid Ahmad, Advocate Supreme Court for Petitioners.

Ch. Muhammad Saleem, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Respondent.

Zafar Chaudhry, Advocate Supreme Court for Applicant.

Date of hearing: 3rd March, 2003.

2005 S C M R 1091

[Supreme Court of Pakistan]

Present. Javed Iqbal, Tanvir Ahmed Khan and Faqir Muhammad Khokhar, JJ

COLLECTOR OF SALES TAX---Petitioner

Versus

MUHAMMAD TAHIR and others---Respondents

Civil Petitions Nos.2951, 2952, 3006-L of 2002, decided on 4th February, 2003.

(On appeal from the judgment/order dated 5-4-2002 of the Lahore High Court, Lahore, passed in W.Ps. Nos.346 of 2002, 14403 of 2000 and 4857 of 2002).

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

----Ss. 12, 13 & 25---Levy and collection of sales tax by WAPDA on energy consumed by petitioner---Constitutional petition under Art.199 of the Constitution before High Court challenging such levy without impleading concerned Collector of Sales Tax as party--­Maintainability---Collector was a necessary party without whose impleadment controversy could not be resolved properly and effectively.

Izharul Haq, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioner.

Zia Haider Rizvi, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Respondents.

Date of hearing: 4th February, 2003.

2005 S C M R 1092

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Falak Sher and Karamat Nazir Bhandari, JJ

RIAZ HUSSAIN ---Petitioner

Versus

KHALID PERVAIZ and others---Respondents

Cr.P.L.A. No.680-L of 2001, decided on 13th June, 2003.

(On appeal from the judgment dated 26-9-2001 of the Lahore High Court, Lahore in Crl. Appeal No.325 of 2000).

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

----Ss. 302/324/148/149---Constitution of Pakistan (1973), Art.185(3)--­Appeal against acquittal of accused by High Court---Conclusions reached by the High Court were based on the evidence available on record and the same were neither perverse nor arbitrary---No exception could be taken to the acquittal recorded by High Court in favour of accused---Leave to appeal was refused to the complainant accordingly.

Malik Saeed Hassan, Senior Advocate Supreme Court for Petitioner.

Iqbal Hameed-ur-Rahman, Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for Respondents.

Date of hearing: 13th June, 2003.

2005 S C M R 1094

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

MUHAMMAD HAYAT, SUB-INSPECTOR M/7---Petitioner

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB, LAHORE and 7 others---Respondents

Civil Petition No. 1730-L of 1999, decided on 27th February, 2003.

(On appeal from the judgment dated 12-8-1999 passed by the Punjab Service Tribunal, Lahore, in Appeal No. 868 of 1998).

Police Rules, 1934----

----R. 13.1---Punjab Service Tribunals Act (IX of 1974), S.4--­Constitution of Pakistan (1973), Art.212(3)---Promotion---Fitness--Grievance of civil servant was that he was not confirmed as Inspector--Civil servant was not found fit for promotion as he was awarded seven penalties of `censure and was also awarded fine of Rs.4000/--­ Departmental authority had forfeited service of the civil servant for six months in year, 1996 and for one month in year, 1997---Integrity of the civil servant, was also found to be controversial in his Annual Confidential Report of year, 1986---Service Tribunal also did not find civil servant fit for promotion and appeal was dismissed ---Validity--­Civil servant was rightly not found fit and suitable for promotion and confirmation as Inspector in terms of R.13.1 of Police Rules, 1934--­Concurrent findings of fact recorded by Departmental authority and Service Tribunal did not call for any interference by Supreme Court-----Leave to appeal was refused.

Mian Mahmood Hussain, Advocate Supreme Court for Petitioner.

A. H. Masood, Advocate Supreme Court for Respondent No. 1.

Date of hearing: 27th February, 2003.

2005 S C M R 1096

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

PHAPU---Petitioner

Versus

Mst. FEROZEE BIBI and others---Respondents

Civil Petition for Leave to Appeal No.709/L of 2000, decided on 27th February, 2003.

(On appeal from the judgment dated 1-2-2000 of the Lahore High Court, Lahore passed in Civil Revision No.446 of 1987).

Specific Relief Act (I of 1877)---

----S.42---Constitution of Pakistan (1973), Art. 185(3)---Legal heirs, determination of---Concurrent findings of fact by the Courts below--­Plaintiffs claimed to be the son and daughter of the deceased and denied defendants being widow and daughters of their deceased father--­Appellate Court and High Court on considering the evidence already on record and perusing the documents came to the conclusion that the deceased had married the defendant and remaining two defendants were his daughters out of that marriage---Report made by brother of the deceased was on file which also showed that the deceased had a widow and two daughters---Judgment and decree passed by Trial Court dismissing the suit was maintained by Appellate Court and High Court--­Validity---Plaintiffs failed to point out any illegality or legal infirmity in the judgment warranting interference by Supreme Court---Leave to appeal was refused.

Ch. Arshad Mahmood, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing; 27th February, 2003.

2005 S C M R 1098

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

MUHAMMAD SHAFIQUE---Petitioner

Versus

DEPUTY DIRECTOR FOOD and another---Respondents

Civil Petition No. 153-L of 2001, decided on 24th February, 2003.

(On appeal from the judgment dated 14-11-2000 passed by the Punjab Service Tribunal, Lahore, in Appeal No.719 of 1999).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975-------

----R.4---Constitution of Pakistan (1973), Arts. 13 & 212(3)---Pecuniary loss caused by civil servant---Dismissal from service and recovery of loss---Principle of double jeopardy---Applicability---Civil servant was held responsible for shortfall in wheat from Government godown-After departmental inquiry, civil servant was dismissed from service and recovery of cost of wheat was also imposed on him---Order passed by authorities was maintained by Service Tribunal---Plea raised by the civil servant was that double penalty of dismissal from service and recovery of amount for loss of wheat was in violation of R.4 of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---Validity---Purpose of order of recovery was to recompose the loss caused to the Government---Depending upon facts and circumstances of a particular case, order of dismissal from service could not absolve a 'civil servant of his liability to make good the pecuniary loss caused to the Government or other organization by or under which he was employed---Principle of double jeopardy was not attracted to the facts and circumstances of the present case---Supreme court declined to take any exception to the findings of fact recorded by departmental authorities and Service Tribunal in the matter after taking into consideration the plea of the civil servant---No substantial question of law of public importance was involved so as to warrant interference by Supreme Court---Leave to appeal was refused.

Deputy Director, Food v. Akhtar Ali 1997 SCMR 343 distinguished.

Law of Master and Servant, 7th Edn. p.67 ref.

Mian Mahmood Hussain, Advocate Supreme Court and Sh Salah-ud-Din Advocate-on-Record for Petitioner.

Nemo for Respondents

Date of hearing: 24th February, 2003.

2005 S C M R 1101

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

KHAIR MUHAMMAD ---Petitioner

Versus

THE STATE and others---Respondents

Crl. Petition No. 185-L of 2002, decided on 23rd April, 2003

(On appeal from the judgment dated 4-2-2002 passed by the Lahore High Court, Lahore in Crl. Appeal No. 82 of 1998 and Cri. Rev. No.56 of 1998/BWP).

Penal Code (XLV of 1860)----

----Ss. 302(b) & 337-F(v)---Constitution of Pakistan (1973), Art. 185(3)---Enhancement of sentence---Occurrence was not the result of any planned or premeditated assault on the victim party but was the result of a sudden flare up on the spot leading to a free fight in which three persons of the complainant side including the deceased had received injuries and in which one accused had' also received injuries on his person---Conclusion reached by the Courts below were neither arbitrary nor ill-founded---No reason justifying enhancement of the sentences recorded against the accused was available in the case---Leave to appeal was refused to complainant in circumstances.

Malik Saeed Hassan, Senior Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 23rd April, 2003.

2005 S C M R 1103

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

QUTAB DIN and another---Petitioners

Versus

MUHAMMAD ASHRAF and others --- Respondents

Civil Petition for Leave to Appeal No. 1988/L of 2002, decided on 26th February, 2003.

(On appeal from the judgment dated 30-4-2002 of the Lahore High Court, Lahore, passed in Civil Revision No. 1190 of 1992).

Specific Relief Act (I of 1877)---

---S. 42---Constitution of Pakistan (1973), Art. 185(3)---Declaration of title---Judgments at variance ---Revisional jurisdiction of High Court--­Appraisal of evidence---Dispute was with regard to ownership of one room situated in the property purchased by plaintiff---Plaintiff claimed that the disputed room was part of his house, whereas the defendants denied the same---Trial Court decreed the suit in favour of plaintiff but Appellate Court allowed the appeal and dismissed the suit--High Court in exercise of revisional jurisdiction appraised the evidence as the judgments of both the Courts below were at variance---Revision was allowed by the High Court on the ground that the disputed room all along belonged to and remained an integral part of the house purchased by the plaintiff---In view of the High Court reasoning advanced by Trial Court were more plausible than the one adopted by the Appellate Court---Validity---Defendants failed to point out any illegality or legal infirmity in judgment passed by High Court warranting interference by Supreme Court---Leave to appeal was refused.

Abdul Wahid Chaudhry, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-record for Petitioners.

Nemo for Respondents.

Date of hearing: 26th February, 2003.

2005 S C M R 1106

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

FARZAND ALI ---Petitioner

Versus

SUPERINTENDENT OF POLICE, OKARA and others---Respondents

Civil Petition No.367-L of 2002, decided on 24th February, 2003.

(On appeal from the judgment dated 13-12-2001 passed by the Punjab Service Tribunal, Lahore, in Appeal No.742 of 2001).

Punjab Police (Efficiency and Discipline) Rules, 1975---

----R. 6---Constitution of Pakistan (1973), Art.212(3)---Compulsory retirement---Concurrent findings of fact by the forums below---Civil servant arrested one cattle lifter and locked him up in a room surreptitiously without any reason---Later on without taking Station House Officer in confidence released the criminal---After departmental proceedings, penalty of compulsory retirement was imposed on the civil servant---Service Tribunal maintained the penalty imposed by the authorities---Validity---Supreme Court declined to take any exception to concurrent findings of fact recorded by all departmental authorities and by Service Tribunal after taking plea of civil servant into consideration--­Leave to appeal was refused.

Ch. Muhammad Afzal Wahla, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioner.

Miss Yasmin Sehgal; Assistant Advocate-General, Punjab for Respondents.

Date of hearing: 24th February, 2003.

2005 S C M R 1108

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

Ch. MUHAMMAD YOUSAF---Petitioner

Versus

UNITED BANK LIMITED---Respondent

C.P.L.A. No.910-L of 2000, decided on 4th March, 2003.

(On appeal from the order dated 22-2-2000 passed in F.A.O. No. 39 of 2000 of the Lahore High. Court, Lahore).

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

----S.21---Constitution of Pakistan (1973), Art. 185(3)---Appeal--­Limitation---During execution proceedings, appellant filed objection before Executing Court which was dismissed on 10.9.1999---Application for obtaining certified copy of the order was filed on 8.2.2000, i.e. after the expiry of prescribed period for filing appeal under S:21 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997---Appeal was time barred and the appellant failed to point out any sufficient cause for condonation of delay---High Court dismissed the time barred appeal on the ground that nobody should be allowed to get benefit of his own mis-deed/negligence---Validity---Appellant failed to show any illegality or infirmity in the judgment calling interference by Supreme Court---Leave to appeal was refused.

Sh. Azhar Salam, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 4th March, 2003.

2005 S C M R 1110

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Hamid Ali Mirza and Sardar Muhammad Raza Khan, JJ

MIRZA KHAN and another---Petitioners

Versus

THE STATE---Respondent

Jail Petition No.88 of 2002; decided on 4th March, 2003.

(On appeal from the judgment dated 28-3-2002 in Cr.A. No.254-J of 2000, Cr.Rev. No.756 of 2000 passed by Lahore High Court, Lahore).

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

----Ss. 302(b)/109/34---Constitution of Pakistan (1973), Art.185(3)--­Incident had occurred in day time wherein five persons were killed with fire-arms in the house of the deceased ---F.I.R. was promptly lodged by the wife of one accused in whose presence the entire occurrence had taken place---Ocular testimony of all the three witnesses who had no animus against the accused was confidence inspiring and unimpeachable which was fully corroborated by medical evidence, evidence of motive and long abscondence of accused---Courts below had legally and properly scrutinized and assessed the evidence without misreading or non-reading and the conclusion arrived at by them did not warrant any interference---Leave to appeal was declined to accused in circumstances.

Mst. Rasheeda v. Khan Bahadur and another 1992 SCMR 1036; Imtiaz Ahmad v. The State 2001 SCMR 1334; Woolmingtin's case 1935 AC 462; Talib Hussain v. State 1995 SCMR 1776 ref.

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

----Ss. 302(b)/109/34---Appreciation of evidence---Motive---Proof of motive is not a legal requirement in the presence of other convincing unimpeachable ocular version.

Imtiaz Ahmad v. The State 2001 SCMR 1334; Woolmingtin's case 1935 AC 462; Talib Hussain v. State 1995 SCMR 1776 ref.

Sardar Muhammad Siddique Khan, Advocate Supreme Court for Petitioners.

Nemo for respondent.

Date of hearing: 4th March, 2003.

2005 S C M R 1120

[Supreme Court of Pakistan]

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

Sh. BASHIR AHMED ---Petitioner

Versus

MUDDASSAR HAYAT and others---Respondents

Civil Petition No.545-L of 2000, decided on 24th March, 2003.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 1-11-1999 passed in I. C. A. No. 442 of 1999).

Constitution of Pakistan (1973)---

----Art. 185(3)---Limitation Act (IX of 1908), S.5---Petition for leave to appeal ---Condonation of delay---Petition was barred by 59 days and explanation given in the application seeking enlargement of time was that on 29.1.2000, the petitioner came to know about the dismissal of his Intra Court Appeal when he had come- to High Court in connection with some other work and inquired from the office about the fate of his Appeal---Effect---No explanation was forthcoming as to why after having filed the Intra Court Appeal, the petitioner did not inquire from his counsel about its fate as in the ordinary course, a client always asks his counsel about the result of his case fixed before High-Court ---Supreme Court declined to condone the delay---Leave to appeal was refused.

Nawab Saeedullah Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 24th March, 2003.

2005 S C M R 1121

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

MUHAMMAD HUSSAIN and others---Petitioners

Versus

Mst. HANAF ILAHI and others---Respondents

Civil Petition for, Leave to Appeal No.3793/L of 2002, decided on 6th March, 2003.

(On appeal from the judgment dated 19-9-2002 of the Lahore High Court, Lahore passed in Writ Petition No.9910 of 2000).

Civil Procedure Code (V of 1988)---

----O.III, R. 1 & O. XXIII, R. 1---Constitution of Pakistan (1973), Art. 185(3)---Withdrawal of suit---Authority of counsel---Suit withdrawn by the counsel was resisted by the plaintiff who disowned, the statement of "her counsel---Application and revision filed by the plaintiff were dismissed by Trial Court and Appellate Court respectively---High Court in exercise of Constitutional jurisdiction was of the view that no such instructions were ever imparted by the plaintiff to her counsel nor the instructions were reflected from the power of attorney executed by her, thus orders passed by two Courts below were set aside and the case was remanded to Trial Court---Validity---High, Court after advancing valid reasons had exercised the discretion properly and-no exception could be taken to the same---Leave to appeal was refused.

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court with Muhammad Ozair Chughtai, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 6th March, 2003.

2005 S C M R 1123

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

INAYAT---Petitioner

Versus

ALTAF ALI and others---Respondents

Civil Petition No. 1258-L of 2000, decided on 28th April, 2003.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 7-3-2000 passed in R.S.A. No.409 of 1980).

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

----Ss. 15 & 34---Land Reforms Regulation, 1972 (M.L.R.115); Para. 25---Constitution of Pakistan (1973), Art.185(3)---Pre-emption suit---Plaintiff as collateral of vendor claimed superior right of pre­emption ---Defendant raised plea of being tenant of land prior to its sale and suit being time-barred---Mutation of sale was entered on 28-3-1974 and attested on 21-10-1974---Trial Court decreed suit, which was upheld by both Appellate Courts---Validity---None of defendant's witnesses had deposed about his being in possession of suit-land at the time of its sale as tenant---Plaintiff had substantiated his superior right by producing pedigree table---Delivery of possession of land to vendee under sale either at the time of entry of mutation or before its attestation had not been proved---No date of change of possession had been mentioned in mutation---Sale in such case would be deemed to have taken place on date of attestation of mutation, from which limitation would start running---No illegality or infirmity was found in impugned judgment--­Supreme Court dismissed petition and refused leave to appeal.

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

----S. 30---Pre-emption suit---Sale through mutation---Starting point of limitation---Date of change of possession, of land under sale not mentioned in mutation---Effect---Sale in such case would be deemed to have taken place on date of attestation of mutation, from which date limitation, would start running.

Ch. Aamir Rehman, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 28th April, 2003.

2005 S C M R 1125

[Supreme Court of Pakistan]

Present: Javed Iqbal, Tanvir Ahmed Khan and Faqir Muhammad Khokhar, JJ

FAIZ MUHAMMAD and others---Petitioners

Versus

ZAFAR AHMAD and others---Respondents

Civil Petition No. 1512-L of 2002, decided on 3rd February, 2003.

(On appeal from the judgment/order dated 21-1-2002 of the Lahore High Court, Lahore, passed in C.R. No.889 of 1991).

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

----S. 15---Punjab Pre-emption Act (IX of 1991), Ss.34(2) & 35(1)---Pre­emption suit---Suit decreed on 6-12-1982 was remanded by Appellate Court for a fresh decision---Suit in post-remand proceedings was dismissed on 19-1-1987 by trial Court, but was decreed by Appellate Court on 17-2-1991---High Court dismissed revision petition filed by defendant---Validity---Rule laid down in Said Kamal's case PLD 1986 SC 360 would have no bearing on such decree, which was in existence on 6-12-1982---Decree once passed in favour of pre-emptor would fall within such rule, even if set aside by Appellate Court prior to 31-7-1987---Present suit was pending for re-decision before Trial Court, wherein decree could competently be passed in accordance with provisions of Punjab Pre-emption Act (I of 1913) as if same had not been repealed---Impugned judgment being in consonance with law laid down by Supreme Court did not warrant interference---Supreme Court dismissed petition.

Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360; Sardar Ali v. Muhammad Ali PLD 1988 SC 287; Nazir Begum v. Fazal Dad 1999 SCMR 210; Rozi Khan v. Karim Shah 1992 SCMR 445; Muhammad Shafi v. Muhammad Hussain 2001 SCMR 827; Bahader Khan v. Muhammad Yousaf 1992 SCMR 2117 and Ghulam Rasool v. Faiz Bakhsh 1992 SCMR 1328 ref.

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

----Art. 185(3)---Supreme Court Rules, 1980, O.XIII, R.1---Petition for leave to appeal---Delay of 24 days---No plausible justification was shown for condoning such delay---Supreme Court dismissed petition as being barred by time.

Mian Ghulam Rasool, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Petitioners.

Nemo for Respondents.

Date of hearing: 3rd February, 2003.

2005 S C M R 1128

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Falak Sher and Karamat Nazir Bhandari, JJ

Mst. SADDAN BIBI---Petitioner

Versus

MUHAMMAD AMIR and others---Respondents

Cr.P.L.A. No.282-L of 2002, decided on 11th June, 2003.

(On appeal from the judgment dated 4-3-2002 passed by the Lahore High Court, Lahore in Crl. Appeal No. 102 of 1996).

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

----Ss. 302 & 324---Constitution of Pakistan (1973), Art. 185(3)---Appeal against acquittal---Receipt of fire-arm injury by the prosecution witness was doubtful Presence of eye-witnesses on the spot at the relevant time was not convincing---Ocular testimony did not inspire confidence --­F.I.R. had been recorded at the spot after preliminary investigation--­Accused party was in possession of the land in dispute---All these findings by the High Court were not arbitrary and no exception could be taken to the acquittal of accused---Leave to appeal was declined to the complainant by Supreme Court.

Rab Nawaz Khan Niazi, Advocate Supreme Court for Petitioner (Complainant).

Nemo for Respondents.

Date of hearing; 11th June, 2003.

2005 S C M R 1130

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

MUHAMMAD NAEEM and others--- Petitioners

Versus

ASHRAF ALI and others---Respondents

Civil Petition No.4012-L of 2002, decided on 2nd January, 2003.

(On appeal from the judgment dated 13-11-2002 passed by, the Lahore High Court, Lahore, in I.C.A. No.826 of 2002).

Punjab Local Government Elections Rules, 2000-----

----Rr. 70, 81(1)(c) & 83---Constitution of Pakistan (1973), Art.212(3)---Election of Nazim and Naib Nazim---Election Tribunal declared election as a whole void, which judgment was upheld by High Court in Constitutional petition---Validity---Tribunal had found discrepant account of votes in respect of different polling stations--­Election Tribunal had found 100 votes in excess of ballot-papers issued at one polling station, which had been smuggled into ballot-box---Mere possibility of mass scale bogus voting at election would be sufficient to deseat returned candidate---Finding of Election Tribunal was based on election record itself and not merely on statement of election petitioner or affidavits---Such election could not be said to have been conducted honestly, justly, fairly and in accordance with law and in a transparent manner on account of commission of major illegal and corrupt practices during election---Election Tribunal had rightly taken the view that result of election of Union Council had been materially affected---Supreme Court dismissed petition.

Muhammad Ishaq v. The Election Tribunal/Senior Civil Judge and others 1984 Law Notes 418 ref.

Munir Ahmad Bhatti, Advocate Supreme Court and Muhammad Ozair Chughtai, Advocate-on-record for Petitioners.

Nemo for Respondents.

Date of hearing: 2nd January, 2003.

2005 S C M R 1133

[Supreme Court of Pakistan]

Present: Falak Sher and Karamat Nazir Bhandari, JJ

Professor ZIA-UR-REHMAN KHAN and others---Petitioners

Versus

CHAIRMAN, WAPDA, LAHORE and others---Respondents

Civil Petition No.54-L of 2002, decided on 7th January, 2003.

(On appeal from the judgment dated 4-10-2002 passed by Lahore High Court, Lahore in W.P. No. 18266 of 2002).

Electricity Act (IX of 1910)------

---S. 42---Specific Relief Act (I of 1877), Ss.42 & 55---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for declaration with prohibitory injunction---Disconnection of power supply upon non­ adherence to notice issued by Authority---Interim mandatory relief for restoration of energy, prayer for---Trial Court granted such relief subject to doing needful in accordance with policy decision of authority for independent transformer---Revision and Constitutional petition filed against condition attached to such order were dismissed---Such injunctive order having not bestowed any relief to plaintiff was recalled a his request by Supreme Court with direction to Trial Court to proceed with suit in accordance with law.

Petitioners in person.

Nemo for Respondents.

Date of hearing: 7th January, 2003.

2005 S C M R 1135

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

KHAN and others---Petitioners

Versus

PROVINCE OF PUNJAB through District Collector, Okara and others---Respondents

Civil Petition No.667-L of 2002, decided on 7th January, 2003.

(On appeal from the judgment dated 11-12-2001 passed by the Lahore High Court, Lahore, in C.R. No.2563 of 2001).

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

----S. 68---Constitution of Pakistan (19731, Art.185(3)---Sanctioning of new internal watercourse by Divisional Canal Officer after hearing parties and holding enquiry- -Appellate Authority upheld such order--­Civil suit challenging such orders was dismissed throughout---Contention of plaintiff was that Warabandi sanctioned three years earlier had attained finality, thus, any change or modification therein could be made only by a decree of Civil Court and not by Canal Authorities in view of S.68(6) of Canal and Drainage Act, 1873---Validity---Plaintiff had not raised any objection before Civil Court or Appellate Court that Canal Authorities had no powers to pass such orders---High Court was justified in refusing plaintiff to allow a new ground to be raised for the first time at revisional stage-Canal Authorities had passed such orders after hearing plaintiff and others---Civil suit and appeal had been decided on merits on basis of evidence led by parties---No miscarriage of justice had been caused in such case either by Canal Authorities or Courts---Supreme Court dismissed petition and refused leave to appeal.

Bashir Ahmad v. Muhammad Khan through Legal Heirs and 4 others 1995 SCMR 891 rel.

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

----S. 115---New ground raised at revisional stage for the first time---Validity---High Court would not allow such ground to be raised.

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

----S. 68---Change or modification of earlier Warabandi---Power of Divisional Canal Officer---Scope---Except for period of crop sown or growing, Divisional Canal Officer could re-open and modify earlier arrangements as many time as differences arose, subject to fulfillment of conditions laid down in S.68 of Canal and Drainage Act 1873.

Muhammad Sultan v. Lab Din 1976 SCMR 260 fol.

Muhammad Saleem Shahnazi, Advocate Supreme Court and Sheikh Salah-ud-Din, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing; 7th January, 2003.

2005 S C M R 1138

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

WASEEM GONDAL---Petitioner

Versus

NAEEM SADIQ and others---Respondents

Civil Petition for Leave to Appeal No.2103/L of 2001, decided on 2nd January, 2003.

(On appeal from the judgment dated 21-5-2001 of the Lahore High Court, Lahore, passed in Writ Petition No.8456 of 2001).

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

----S. 516-A---Penal Code (XLV of 1860), Ss.452/380/448/420/468/471/ 148/149---Constitution of Pakistan (1973), Art. 185(3)-Superdari of amount recovered during investigation---Petitioner secured amount on Superdari subject to its production before Court ---Revisional Court set aside order of Superdari, against which Constitutional petition filed by petitioner's father was dismissed---Validity---Petitioner was living abroad and in spite of notice had never attended the Court-Petitioner had not honoured condition mentioned in the order of Superdari in spite of directions of the Revisional Court and High Curt- Supreme Court dismissed petition and refused leave to appeal.

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

Munir Ahmed Bhatti, Advocate Supreme Court with Mahmoodul Islam, Advocate-on-Record for Respondent No. 1.

Kausar Ali, A.S.-I. Police Post Model Town Kutchery, Lahore for Respondent No.3.

Date of hearing: 2nd January, 2003.

2005 S C M R 1139

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

MUHAMMAD BOOTA---Petitioner

Versus

ELECTION TRIBUNAL and others---Respondents

Civil Petition No.2404-L of 2001, decided on 15th January, 2003.

(On appeal from the judgment dated 4-7-2001 passed by the Lahore High Court, Lahore, in Writ Petition No. 11987 of 2001).

Punjab Local Government Elections Rules, 2000-----

----Rr. 80((c), 82 & 83(a)---Punjab Local Government Elections Ordinance (V of 2000), S.2(10)-Constitution of Pakistan (1973), Art: 185(3)---Election for "peasant' seat---Election Tribunal for lacking qualification as peasant declared election of respondent as void and declared petitioner in his place as returned candidate---High Court in Constitutional petition set aside order of Tribunal declaring petitioner as returned candidate with direction for holding of fresh election--­Validity--Nothing on record was available to show that lack of qualification of respondent was notorious in nature and voters were conscious or made aware of the same---No objection had been taken before Returning Officer at the time of scrutiny of nomination papers that respondent was not a peasant as defined by S.2(10) of Punjab Local Government Elections Ordinance, 2000---Votes polled in favour of respondent could not be said to have been cast in favour of petitioner in presence of more than two contesting candidates---Votes cast in favour of respondent, thus, could not be treated as thrown away to disenfranchise electorate- No. exception could be taken to the impugned order--­Supreme Court dismissed petition and refused leave to appeal as, same would deprive electors from exercising their right of franchise.

Syed Saeed Hassan v. Pyar Ali and 7 others PLD 1976 SC 6 rel.

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

Nemo. for respondents.

Date of hearing: 15th January, 2003.

2005 S C M R 1142

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

SECRETARY, LABOUR DEPARTMENT, PUNJAB, LAHORE and another---Petitioners

Versus

Raja MUHAMMAD PASHA JANJUA and others---Respondents

Civil Petition No. 195-L of 2003, decided on 20th March, 2003.

(For leave to appeal from the judgment dated 22-10-2002 passed by the Punjab Service Tribunal, Lahore, in Appeal No.403 of 1995).

Punjab Civil Servants Act (VIII of 1974)---

----S. 7---Seniority---Civil servant duly appointed on regular basis much earlier than others could not be relegated to a junior position.

Aziz Ahmed Chughtai, Advocate Supreme Court and Rao Muhammad Khan, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 20th March, 2003.

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2005 S C M R 1147

[Supreme Court of Pakistan]

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

AMEER --- Petitioner

Versus

SHAHADAT---Respondent

Civil Petition No.4041-L of 2001, decided on 2nd April, 2003.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 12-10-2001 passed in C. R. No. 1451/D of 1993).

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

----S. 12---Civil Procedure Code (V of 1908), O.VIII, Rr.2 & 9---Suit for specific performance of agreement to sell---Defendant totally denied the execution of agreement---Marginal witness of agreement examined by defendant during trial deposed that same was in fact a Pattanama intended to be executed in favour of plaintiff---Validity---Such plea could not be raised in evidence for not having been raised in written statement---Such agreement stood proved even through evidence of such witness of defendant.

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

---S. 12---Civil Procedure Code (V of 1908), O. VII, R.3---Suit for specific performance of agreement to sell---Uncertainty in description of land as given in agreement--Effect---Suit could not be dismissed on such score---Such uncertainty could not be made basis for holding that execution of agreement had not been proved.

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

----S. 12---Civil Procedure Code (V of 108), O.VII, R.3 & O.VIII, Rr.2, 9---Suit for specific performance of agreement to sell---Uncertainty in description of land as given in the agreement---Non-raising of such plea in written statement to avoid agreement to sell---Effect---Such plea could not be taken into consideration by Court as evidence against plaintiff.

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

----S. 12---Civil Procedure Code (V of 1908), O.VII, R.14--­Constitution of Pakistan (1973), Art. 185(3)---Suit for specific performance of agreement to sell---Non-production of agreement along with plaint---Effect---Agreement was admitted in evidence without any objection as to its production, and admissibility---Suit decreed by Trial Court was dismissed by Appellate Court, but same was again decreed by High Court in revision---Validity---Defendant had not raised such objection at proper time, so that plaintiff had an opportunity to, meet the same and apply to Court for permission to produce agreement at later stage---Such agreement had been admitted in evidence without any objection---Appellate Court could not take up such ground on its own, when same had already been abandoned by defendant in whom right was vested to raise objection---High Court had rightly set aside judgment of Appellate Court being based on non-reading and misreading of evidence on record---Supreme Court dismissed petition and refused leave to appeal.

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

----S. 12---Civil Procedure Code (V of 1908), O.VII, R.14-Suit for specific performance of agreement to sell---Non-production of agreement along with the plaint---Production of such agreement in evidence by intervener while appearing as witness, through whom agreement was arrived at and earnest money was paid---Validity---No exception could legally be taken to same.

Ehsanullah Lilla, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 2nd April, 2003.

2005 S C M R 1151

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

Mst. ROSHAN BIBI---Petitioner

Versus

MACHAL DIN and others---Respondents

Civil Petition for Leave to Appeal No. 917/1, of 2000, decided on 4th March, 2003.

(On appeal from the order, dated 24-2-2000 of the Lahore High Court, Lahore, passed in F.A.O. No. 197 of 1999).

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

----S. 96 & O.XLI, R.5---Specific Relief Act (I of 1877), S.42--­Constitution of Pakistan (1973), Art.185(3)---Appeal against decree passed in suit for declaration---First Appellate Court ordered maintenance of status quo till decision of appeal---High Court in appeal against such interim order found respondent entitled to receive share in crops from Rabi, 2000 onwards through Assistant Collector ---Validity--­High Court had passed impugned order as an interim measure in order to safeguard interest of parties---Impugned order did not suffer from any illegality or legal infirmity warranting interference---Supreme Court dismissed petition and refused leave to appeal.

Ghulam Nabi Bhatti, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 4th March, 2003.

2005 S C M R 1152

[Supreme Court of Pakistan]

Present: Javed Iqbal and Falak Sher, JJ

ABDUL SATTAR and others---Petitioners

Versus

TALLAT MAHMOOD SAFDAR and others---Respondents

Civil Petitions Nos.127, 4178, 4179 and 4180-L of 2002, decided on 28th March, 2003.

(On appeal from the judgment dated 20-10-2002 passed by the Punjab Service Tribunal, in Appeals Nos.1706 to 1708 of 2002).

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

----R. 7---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan (1973), Art.212(3)---Appointment as Graduate English Teachers on temporary basis to be governed by Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---Civil servants served in such capacity for four years---Authority thereafter found civil servants not eligible for grant of S.S.T. Grade against 50% in service quota reserved for regular employees on the ground that their appointments were contractual, school specific and non-transferable---Service Tribunal accepted appeal of civil servants by reversing such findings as to their eligibility---Validity---Civil servants were not contractual employees---Appointment letters had explicitly categorized same as temporary regulated under Rules, 1974 without being school specific---Spelt out restriction in terms of time span was only to avoid rapid transfers on extraneous consideration---Civil servants to all intents and purposes, were eligible for consideration of their candidature for awarding of S.S.T. Grade---Supreme Court dismissed petition and refused leave to appeal.

Ch. Manzoor Hussain Basra, Advocate Supreme Court, Mahmud-ul-Islam, Advocate-on-Record for Petitioners (in C.P. No.127-L of 2002).

Ehsan-ul-Haq Chaudhry, Advocate Supreme Court and Irshad Ahmed Qureshi, Advocate Supreme Court and M.A. Qureshi, Advocate­-on-Record for Respondents (in all cases).

Hasan Nawaz Tarar for Special Secretary, Schools.

Special Secretary, Schools and Hasan Nawaz Tarar for Petitioners (in C.Ps. Nos.4178 to 4180).

Date of hearing: 28th March, 2003.

2005 S C M R 1156

[Supreme Court of Pakistan]

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

Mst. IKRAM BIBI---Petitioner

Versus

PROVINCE OF PUNJAB and others---Respondents

Civil Petitions Nos.218 and 219-L of 2003, decided on 4th April, 2003.

(For leave to appeal from the judgment dated 20-11-2002 of the Lahore High Court, passed in Civil Revisions Nos.105 and 106 of 2000).

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

----Ss. 12 & 42---Civil Procedure Code (V of 1908), S.47 & O.XXI, Rr.10 & 32---Constitution of Pakistan (1973), Art.185(3)---Suit for declaration---Transfer of plaintiff's plot by Department to defendant in pursuance of decree for specific performance of contract---Plaintiff filed suit for declaration alleging such act of Department to be illegal and ineffective on his rights as such decree having not been executed through Court and execution petition having become barred by time, Department on its own could not transfer the plot to defendant (decree-holder)----Dismissal of suit by Trial Court and Appellate Court was upheld by High Court in revision---Validity---Question raised in the suit necessarily related to execution, satisfaction and discharge of decree of specific performance of contract---No separate suit would be maintainable in relation to such question by virtue of S.47, C.P.C.---Dismissal of suit was perfectly in accordance with law---Supreme Court dismissed petition and refused leave to appeal.

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

----S. 47 & O.XXI, R.32---Specific Relief Act (I of 1877), S.12---Constitution of Pakistan (1973), Art.185(3)---Objection to decree passed in suit for specific performance of agreement to sell---Non-payment of remaining amount payable under decree---Contention of judgment-debtor was that due to non-payment of decretal amount, decree-holder was not entitled to get ownership rights in land---Courts below concurrently dismissed the objection petition---Validity---Objection petition filed by judgment-debtor, prima facie, was maintainable---Supreme Court issued notice to decree-holder.

Sh. Naveed Shaharyar, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 4th April, 2003.

2005 S C M R 1159

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C. J., Javed Iqbal and Abdul Hameed Dogar, JJ

Mst. HAFEEZ BIBI---Petitioner

versus

THE STATE---Respondent

Criminal Review Petition No.43 of 2003 in Criminal Appeal No.117 of 2002, decided on 2nd May, 2005.

(On review from the judgment dated 25-9-2003 of this Court passed in Criminal Appeals Nos. 115, 116, 117, 118 of 2002 and J.P. No.228 of 2002).

Penal Code (XLV of 1860)---

----Ss. 392, 302, 394, 397, 337-I(b); 337-F(2) & 411---Anti-Terrorism Act (XXVII of 1997), S.6-A---Constitution of Pakistan (1973), Art.188---Supreme Court Rules, 1980, O.XXVI---Review of Supreme Court judgment---Contention of the petitioner was that the entire evidence brought on record was not examined in its true perspective inasmuch as the discrepancies appearing in the statements of eye-witnesses were not properly appreciated; that defence version needed to be re-examined and that there was enmity between the petitioner's father and the local police which escaped the notice of the Courts below---Validity---Conviction of the accused lady was maintained, but the death sentence awarded to her was altered to life imprisonment with benefit of S.382-B, Cr.P.C.---Irrefutable evidence was available on record to show that the petitioner, as a maidservant of the complainant, played a major role in the murder of two minor children of the complainant---Petitioner wanted to re-argue the matter on merits, which was not permissible at review stage---Present case being not that of misreading, non-reading or mis-appreciation of evidence brought on record, Supreme Court declined interference in circumstances.

Pirzada Noor Ali Shakoori, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 2nd May, 2005.

2005 S C M R 1162

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Abdul Hameed Dogar and Faqir Muhammad Khokhar, JJ

SHAHZAD alias SHADO and 3 others---Petitioners

versus

JUDGE ANTI-TERRORISM COURT, FAISALABAD and 3 others---Respondents.

Civil Petition No.1601 of 2005, decided on 19th April, 2005.

(On appeal from the order dated 7-4-2005 of the Lahore High Court, Lahore passed in W.P. No.5420 of 2005).

Penal Code (XLV of 1860)---

----Ss. 380, 411 & 506---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(4)---Anti-Terrorism Act (XXVII of 1997), S.7---Constitution of Pakistan (1973), Art. 185(3)---Gang rape---Compounding of offence---Scope---Contention of the convicts was that the victim, as well as complainant had forgiven them in. the name of Allah and had entered compromise with them and had compounded the offence as such they may be acquitted---Validity---All the offences under which the petitioners were convicted were non-compoundable offences--Only offences affecting human body mentioned in Ch. XVI, P.P.C. were made compoundable by substituting Ss. 299 to 338-H vide Criminal Law (Second Amendment) Ordinance, 1990 .and legal heirs of deceased and victim had been allowed to compound the offence with the permission of the concerned Court---Supreme Court dismissed petition finding no justification to interfere in the order of High Court rejecting the petition for compounding of offences---Principles.

Admittedly, in the present case, the conviction and sentence of all the four petitioners had been maintained up to Supreme Court. Even mercy petition had been rejected by the President of Pakistan. All the offences under which the petitioners had been convicted were non-compoundable offences. The offence in the present case was registered on 7-11-1999 on which date, offence under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was included in the Schedule of the offences falling within the ambit of the Anti-Terrorism Act, 1997 thus was rightly tried by Anti-Terrorism Court and sentenced to death under the above mentioned provision of law and section 7 of the Anti-Terrorism Act. Offence under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and section 7 of the Anti-Terrorism Act were offences against society, it was because of that object that the legislature had made these offences non-compoundable. The offence under S.10(4) of the Ordinance called as "Gang Rape" being a heinous offence was knowingly included in the Schedule of the Act. It being an offence against society creates terror and fear of insecurity in the society and public at large, disturbing normal tempo of life and tranquillity of society. Culminative fall of the occurrence is to be seen which, if examined in the light of fact of the present case, the provision of section 7 of the Act were fully attracted.

Only offences affecting human body mentioned in Chapter XVI of Pakistan Penal Code were made compoundable by substituting sections 299 to 338-H vide Criminal Law (Second Amendment) Ordinance, 1990 and legal heirs of deceased and victim had been allowed to compound the offence with the permission of the concerned Court.

Maulana Nawab-ul-Hassan and 7 others v. The State 2003 SCMR 658 distinguished.

G.N. Gohar, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 19th April, 2005.

2005 S C M R 1166

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Hamid Ali Mirza and Nasir-ul-Mulk, JJ

COLLECTOR OF SALES TAX AND CENTRAL EXCISE (ENFORCEMENT) and another---Petitioners

Versus

Messrs MEGA TECH (PVT.) LTD---Respondent

C.P.L.A. No.243-K of 2005, decided on 7th April, 2005.

(On appeal from order of High Court of Sindh, Karachi dated 2-3-2005 passed in C.P. No.D-1152 of 2004).

(a) Sales Tax Act (VII of 1990)---

----S. 38---Scope of section 38, Sales Tax Act, 1990---Section 38 empowers an officer authorised by the Central Board of Revenue to have free access to business or manufacturing premises, stocks, business records and documents etc. at any time and the registered person, his agent or any person specified in S.38(1) of the Act shall be bound to answer any question or furnish such information or explanation as may be asked by the authorised officer.

(b) Sales Tax Act (VII of 1990)---

----Ss. 40, 40-A & 38---Search without warrant---Scope---By passing the statutory provisions contained in S.40, Sales Tax Act, 1990 and straightaway assuming powers under S.40-A of the Act---Validity---Section 40-A, Sales Tax Act, 1990, in the absence of any strong belief to such effect, did not confer unlimited and unbridled powers on the authorised officer to conduct search or to impound any kind of documents without any reasonable cause and obtaining any search warrant from the Magistrate---Anonymous complaint against the company alleging evasion of tax was not a "credible information"---"Reasonable belief" of an officer must have direct nexus and material bearing on the strong circumstances for formation of such opinion---Requirements of law and procedure to be followed by the department with regard to search without warrant elucidated.

An officer, duly authorized in this behalf can have free access to the business premises of a registered person. The officer, who inspected the premises, was duly authorized to inspect the goods, stocks etc., as contemplated by law. Nevertheless, from the language employed in sections 40 and 40-A of the Sales Tax Act, 1990, the requirement of law appears to be that where an officer of sales tax has reason to believe that any document or things, which, in his opinion, may be relevant to any proceedings under the Sales Tax Act, are concealed or kept in any place and there is a danger of removal of such documents or records, he may, after obtaining a warrant from the Magistrate, enter that place and cause a search to be made at any time. The mandate of law as enunciated in subsection (2) of S.40 seems to be that search authorized under the above provision of law shall be carried strictly in accordance with relevant provisions of the Code of Criminal Procedure, 1898. Such provisions are contained in sections 96 to 105 of the Code and need not be dilated upon as admittedly the petitioners did not invoke these important provisions of law while seizing the records of the Company. Department, however, attempted to canvass the Supreme Court that upon being asked by authorized officer and, after serving notice on General Manager (Finance) of the Company with a request to provide all the sales tax records, he refused to provide the same on the premise that no. record was available with them and when requested to allow access to the premises, he did not allow the same, therefore, Deputy Collector Sales Tax, in exercise of the powers of search, prepared a statement under section 40-A and directed his staff to search the premises for following reasons:

(i) Non-availability of Magistrate;

(ii) Possibility that records will be removed till the availability of Magistrate.

(iii) Denial to allow search and also failure to provide sales tax record.

Statement prepared by this officer within the contemplation of section 40-A commences with the expression "whereas on the basis of credible information" that the Company was involved in the evasion of sales tax, he along with the staff of sales tax, duly authorized by Collector of Sales Tax under section 38 of the Act, visited the premises. Department had received an anonymous complaint against the Company. Authorization from the Collector of Sales Tax was obtained on 23-9-2004, on which date the entire exercise was undertaken in the purported exercise of powers conferred under section 40-A of the Act. In the face of admitted position that there was no definite information much less credible report against the Company alleging evasion of sales tax, it is hard to accept the statement of the Department that the authorized officer in fact acted on receipt of a credible information within the meaning of the term. On the other hand, there appears to be force in the reasons recorded by the High Court for declaring the impugned action without jurisdiction because the same was undertaken after the lapse of two days, which period was adequate enough to obtain a search warrant from a Magistrate if the Department believed that complaint otherwise was true and genuine. High Court appears to be justified in doubting the bona fides of the Department in bypassing the statutory provisions contained in section 40 of the Act and straightaway assuming extraordinary powers under section 40-A. The authorized officer had full powers and authority to inspect the premises of the Company under section 38 of the Act with a view to satisfy himself that proper records under the provisions of the Act, rules and regulations were maintained, nevertheless, in law, he is expected, to act fairly, justly and reasonably. It is difficult to believe that on being called upon to provide necessary records, General Manager (Finance)'of the Company would point blank refuse to lay the same on the so-called premise that records were not maintained. One would be justified in drawing this inference from the letters placed on record by the Department themselves relating to the audit for year 2002-2003 and the positive and prompt response made by Senior Manager (Accounts) of the Company. If the Company had fairly allowed the auditors of the Department to audit their monthly returns for, the year 2002-2003 in 2004, Court would be legally justified in holding that reasons recorded in the statement prepared by the authorized officer do not hold the ground. Likewise, undue haste and anxiety with which authorized officer acted and impounded a large number of files, statements, computers, diskettes and CDs of the Company, prima facie, tend to show lack bona fides and reasonable belief on the part of the departmental officers. At any rate, it is not apparent from the statement prepared by the authorized officer that it was his genuine belief that there was reasonable danger of removal of records, which may be relevant to any proceedings under the Act. In the absence of any strong belief to such effect, it is difficult to agree with the submission that section 40-A confers unlimited and unbridled powers on the authorized officer to conduct search or to impound any kind of documents without any reasonable cause and without obtaining any search warrant from the Magistrate.

Reasonable belief of an officer must have direct nexus and material bearing on the strong circumstances for formation of such opinion. Indeed the legislature has used the expression `reasonable belief' and not a mere suspicion in the mind of an authority with a view to authorise the search of premises without obtaining a search warrant from a Magistrate. Sections 40 & 40-A of the Act appear to be neither overlapping nor in conflict with each other. While section 40 caters for search where a sales tax officer has reason to believe that any documents or things, which may be useful or relevant to any proceedings under the Act at any place are apprehended to be removed, he may enter the place and cause a search after obtaining search warrant from the Magistrate, section 40-A was enacted to meet an emergent situation where a sales tax officer has reason to believe that documents or things useful for or relevant to any proceedings under the Act, kept at any place are apprehended to be removed, he may proceed to make a search without obtaining any warrant. It would, however, appear that every word used by the Legislature must be given its true meaning and the provisions construed together in a harmonious manner. It would not be legal and proper to apply one provision of law in isolation from the other provision as no surplusages or redundancy can be attributed to the legislative organ of the State.

High Court, after a threadbare and in-depth examination and analysis of the record have recorded a finding of fact that the only course available to the Department was, as contemplated under section 40 of the Act, and thus, bypassing of such course and direct invocation of powers under section 40-A in the garb of access to the office premises of the respondent in terms of section 38 of the Act was not warranted by law. On careful consideration of the record and analyzing the submissions of the parties, Supreme Court agreed with the view taken by the High Court as, apparently, action taken by the Department smacked of lack of bona tides and acting on personal whims.

S.M. Yousof v. Collector of Customs PLD 1968 Kar. 599; Collector of Customs v. S.M. Yousaf 1968 SCMR 603; Collector of Customs v. Muhammad Mehfooz PLD 1991 SC 630; Federation of Pakistan v. Master Enterprises (Pvt.) Ltd. 2003 PTD 1034; Ihsan Yousaf Textile Mills (Pvt.) Ltd. v. Federation of Pakistan 2003 PTD 2037; Megna Textile Mills v. Collector of Customs 2004 PTD 1339; Food Consults (Pvt.) Ltd. v. Collector (C.E. & S.T.) 2004 PTD 1731 and N.P. Water Proof Textile Mills (Pvt.) Ltd. v. Federation of Pakistan 2004 PTD 2952 ref.

(c) Interpretation of Statutes---

----Every word used by the Legislature must be given its true meaning and the provisions construed together in a harmonious manner---Not legal or proper to apply one provision of law in isolation from the other provision as no surplusages or redundancy can be attributed to the legislative organ of the State.

Raja Muhammad Irshad, Deputy Attorney General and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioners.

Dr. Farogh Naseem, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondent.

Date of hearing: 7th April, 2005.

2005 S C M R 1175

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

Agha WAZIR ABBAS and others---Petitioners

versus

THE STATE and others---Respondents

Criminal Petitions Nos. 242 & 56-K to 59-K of 2003, decided on 21st April, 2005.

(On appeal from the judgment dated 29-5-2003 of the High Court of Sindh, Karachi passed in Criminal Accountability Appeals Nos.52, 53, 54, 56 and 57 of 2002).

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

----Ss. 9, 10 & 32---Constitution of Pakistan (1973), Art.185---Appeal against acquittal---Findings of acquittal can only be upset if the same are found perverse, arbitrary, foolish or based on misreading or non-appraisal of evidence---Where the prosecution has not been able to show that the judgment of acquittal suffers from anyone of such infirmities, interference is declined.

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

----Arts. 43 & 46---Criminal Procedure Code (V of 1898), Ss.364, 161 & 162---National Accountability Ordinance (XVIII of 1999), Ss. 9 & 10---Admission---Confession---Letter said to have been written by absconding accused was not admissible in evidence at all---Principles and procedure.

Letter said to have been written by absconding accused is not admissible in evidence at all. It cannot either be considered as a confessional statement as contemplated in Article 43 of the Qanun-e-Shahadat nor it would amount to a statement referred in Article 46 of the Qanun-e-Shahadat, Article 43 of the Qanun-e-Shahadat provides that when more persons than one are being tried jointly for the same offence and a confession is made by one of such persons and if it is proved against its maker, the same can be used as circumstantial piece of evidence against other accused. The letter said to have been sent by absconding accused in any case would not be a confession in the terms of the order as he is still absconder and was also not tried with the other accused. Even on plain reading of Article 46 of the Qanun-e-Shahadat it is evident that it relates to the statement of a person who is dead or cannot be found. In the present case, absconding accused is alive and is available in India.

A specific procedure has been laid down under sections 164 and 364, Cr.P.C. for recording the confessional statement of an accused which admittedly lacks in this case. The said letter cannot even be equated with a statement under section 161 or 162, Cr.P.C. which even are to be reduced in writing by the Investigating Officer on the oral statement of accused which procedure too is missing in this case. The said letter is not admissible in evidence as it has been produced by a prosecution witness who was not competent to produce the same. The documents said to have been sent from India, as such, invoice and envelope might have been received by Fedex Office in Pakistan but no one from such office was examined to prove its delivery. Even address of the said prosecution witness has not been written over it. Moreover, a perusal of letter shows that it was attested by a Notary Public of Mumbai, India, whose signature was verified by Section Officer, Home Department, Government of Maharashta. Since it is not a judicial record of a foreign country, therefore, its genuineness and authenticity cannot be verified. Irrespective of above, it has neither been certified by any Officer of Embassy of Pakistan in India nor it has been routed through the Embassy of Pakistan, as such, it cannot be said to be a document worth admissibility in evidence at all.

Aitzaz Ahsan, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioners (in Cr. P. No.242 of 2003) and for Respondents (in Cr.P. No.56-K and 58-K of 2003).

Sahibzada Ahmed Raza Kasuri, Senior Advocate Supreme Court for Petitioners (in Cr. P. No.56-K to 59-K of 2003) and for the State (in Cr.P.No.242 of 2003).

Abdul Hafiz Pirzada, Senior Advocate Supreme Court for Respondent (in Cr.P.No.57-K of 2003).

Syed Kamal Azfar, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondent (in Cr.P.No.59-K of 2003).

Dates of hearing: 16th and 17th February, 2005.

2005 S C M R 1183

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ

KARACHI INTERNATIONAL CONTAINER TERMINAL LTD. through Financial Controller and Company Secretary---Petitioner

Versus

GOVERNMENT OF SINDH through Secretary, Excise and Taxation Sindh, Karachi and 2 others---Respondents

Civil Petition No.856-K of 2004, decided on 5th May, 2005.

(On appeal from the judgment of the High Court of Sindh, Karachi, dated 4-11-2004 passed in C.P. No.D-1042 of 2004).

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

----Ss. 14 & 16---Lessee of Karachi Port Trust qua Container Berth, for a period of twenty years---Liability of property tax---Contention of the lessee was that since no rent was being paid for utilization of the land, hence the question of levying and payment of property tax would not arise---Indenture of lease and Implementation Agreement showed that the lessee had agreed to pay the average annual rent to Karachi Port Trust---Indenture of Lease clearly stipulated that all taxes, rates and cesses including the Municipal Taxes already in existence or levied during the terms of the lease, shall be liable to be paid by the lessee---Effect---Interpretation of relevant clauses of Implementation Agreement and Indenture of Lease would reveal that the lessee was liable for all taxes enumerated therein irrespective of the fact whether it was levied by the Provincial Government, Federal Government or any other Autonomous Body---Held, being owner of the property till proved otherwise Karachi Port Trust was liable to make payment of property tax at first instance and in case of its failure, undoubtedly notice for recovery of property tax could be issued under S.14, West Pakistan Urban Immovable Property Tax Act, 1958 and further action for attachment could be taken pursuant to the provisions as enumerated in S.16 of the said Act against the lessee who was responsible to pay property tax in view of relevant clauses of Implementation Agreement and Indenture of lease executed between the lessee and Karachi Port Trust---Principles.

Pakistan v. Province of Punjab PLD 1975 SC 37 and Ashfaq-ur-Rehman Khan v. The Government of the Punjab and others PLD 1975 Lah. 23 ref.

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

----Ss. 14 & 16---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Lease of Karachi Port Trust qua Container Berth, for a period of twenty years---Dispute as to liability of property Tax---Controversial questions which could not be determined by the High Court while exercising its Constitutional jurisdiction under Art. 199 of the Constitution enlisted.

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, Aziz A. Sheikh, Advocate Supreme Court and Rana Waqar Ahmed, Advocate for Petitioner.

Raja Muhammad Irshad, Deputy Attorney-General (On Court Notice).

Muhammad Sarwar Khan, Additional Advocate-General, Sindh and Shamir Ali, A.E.T.O. for Respondents Nos. 1 and 2.

M. Nafees Siddiqui, Advocate Supreme Court for Respondent No.3.

Dates of hearing: 3rd and 4th January, 2005.

2005 S C M R 1194

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Rana Bhagwandas, JJ

MUHAMMAD ZAHOOR---Petitioner

Versus

REGISTRAR, LAHORE HIGH COURT, LAHORE and another---Respondents

C.P.L.A. No.1087-L of 2003, decided on 11th May, 2005.

(On appeal from judgment of Punjab Service Tribunal, dated 10-4-2003 passed in Appeal No.236 of 2003).

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

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Resignation by Naib Qasid of Court---Acceptance of resignation by Sessions Judge with immediate effect subject to deposit of one month pay by civil servant---Withdrawal of resignation after 12 days, prayer for---Non-mentioning of reason of withdrawal in departmental appeal and in appeal before Service Tribunal---Refusal of both forums to grant relief to civil servant for such omission treating his resignation to be voluntary---Validity---Civil servant had not drafted resignation himself---Civil servant in resignation had not asked for its immediate acceptance---Low paid employee servant as Naib Qasid would ordinarily never desire for acceptance of his resignation subject to such condition---In absence of such request, Sessions Judge should have postponed acceptance of resignation for some time as there was no necessity to show haste in its acceptance---Civil servant in departmental appeal alleged his resignation not to be voluntary, but he was forced to do so with threat that otherwise he would be sent to jail---No comparison could be drawn between powers of Sessions Judge qua a Naib Qasid---Departmental Appellate Authority had a legal and moral obligation to probe into such matter as same was a question of survival of a low paid employee---Civil servant had repeated such plea in appeal before Tribunal, which had not cared to analyse such aspect of case---Service record of civil servant was above board---Civil servant for first time had filed before Supreme Court an affidavit disclosing facts due to which Sessions Judge had compelled him to resign from service---Tendering of resignation by civil servant could not be inferred from such facts to be voluntary---Tribunal had erred in law in not granting relief to civil servant---Supreme Court accepted appeal while reinstating civil servant in service without back-benefits with observations that period during he remained out of job would be treated on duty against leave accrued, if any, or leave without pay for purposes of his length of service and future benefits.

Dr. Muhammad Munirul Haq v. Dr. Muhammad Latif Chaudhry 1992 SCMR 2135 and Abraham Reuben v. Karachi Municipality AIR 1929 Sindh 69 rel.

(b) Civil service---

----Resignation, whether voluntary or not---Test.

While determining, whether a person has resigned or has been compelled to resign, the correct test is to find out, whether the acts and conduct of the servant evince an intention to be no longer bound by the contract or whether the conduct of employer amounts to a basic refusal to continue the servant on the agreed terms of the. employment.

Abraham Reuben v. Karachi Municipality AIR 1929 Sindh 69 fol.

Muhammad Zaman Bhatti, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioner.

Nadeem Anwar, Junior Clerk, Lahore High Court Respondent No.1.

Abdul Sattar, English Clerk Office of the District and Sessions Judge, Gujranwala for Respondent No.2.

Date of hearing: 11th May, 2005.

2005 S C M R 1200

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Abdul Hameed Dogar and Faqir Muhammad Khokhar, JJ

Sheikh ANJUM IQBAL---Petitioner

Versus

SHER AFGAN---Respondent

Civil Review Petition No.142 of 2004, decided on 19th April, 2005.

(On appeal from the judgment dated 21-4-2004 of this Court passed in Civil Appeal No.157 of 1998)

Sindh Rented Premises Ordinance (XVII of 1979)--

----S. 15(2)(ii)(vii)---Constitution of Pakistan (1973), Art.188---Supreme Court Rules, 1980, O.XXVI, R.1---Civil Procedure Code (V of 1908), O.XLVII, R.1---Review of Supreme Court judgment---Default in payment of rent---Bona tide personal need of landlord---Dismissal of ejectment petition by Rent Controller and High Court---Supreme Court allowed petition preferred by landlord with direction to tenant to deliver possession of premises to landlord within one year subject to payment of rent in terms of agreement---Review of judgment of Supreme Court---Validity---Commission of such default by tenant had been established by irrefutable evidence---Landlord had clearly established his plea of personal bona fide need---Present case was not a case of misreading, non-reading or mis-appreciation of evidence---Impugned judgment was in consonance with material brought on record---Supreme Court dismissed review petition.

Fazal-e-Ghani, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record (absent) for Petitioner.

Fakhruddin G. Ibrahim Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent.

Date of hearing: 19th April, 2005.

2005 S C M R 1201

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J. and Abdul Hameed Dogar, J

AZMATULLAH through L.Rs.---Petitioners

Versus

Mst. HAMEEDA BIBI and others---Respondents

Civil Petition No.275 of 2003, decided on 25th March, 2005.

(On appeal from the judgment dated 29-11-2002 of the Lahore High Court, Lahore passed in Civil Revision No.547 of 1999).

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

----S. 13(3)---Constitution of Pakistan (1973), Art. 185(3)---Pre-emption suit---Plaintiff had claimed the right of pre-emption on the basis of Shafi Jar and Shafi Khalit---Plaint showed that on coming to know about the sale he immediately disclosed his intention to pre-empt the suit-land in the Majlis of village in presence of two witnesses---Plaintiff contended that the sale was kept secret and was disclosed to the plaintiff after about three months which fact was established and not rebutted---Factum of sending of notice of Talb-i-Ishhad on the next day of the knowledge after getting the same attested by two truthful witnesses also stood established on record---Witnesses had categorically stated that ,plaintiff had the superior right on the basis of contiguity, common boundary line, common right of passage and common right of irrigation---High Court had found that both the Talbs were made well in accordance with law---Defendants could not refer to any illegality, misreading or non-appraisal of evidence---Plaintiff could not be non-suited merely on the ground that other details of time and place of the Talbs and names of witnesses etc. had not specifically been mentioned in the plaint---Minor discrepancy of time would not come in the way of pre-emptor---Service of registered notice by pre-emptor containing the names of two truthful witnesses before whom Talb-i-Ishhad was allegedly made amounted to substantial compliance of the provisions of S. 13(3), Punjab Pre-emption Act, 1991 and pre-emptor could not be non suited on the ground that the notice served on the vendee containing Talb-i-Ishhad was not attested by the two truthful witnesses whose names were disclosed in the notice---Impugned judgment of High Court being based on valid and sound reasons, was entirely in consonance with the law---No misreading or non-reading of material evidence or. misconstruction of facts and law was pointed out---Petition for leave to appeal was dismissed by the Supreme Court.

Chaudhry Muhammad Saleem v. Fazal Ahmad and others 1997 SCMR 315; Allah Bakhsh and another v. Falak Sher 2004 SCMR 1580 and Abdul Malik v. Muhammad Latif 1999 SCMR 717 fol.

Akbar Ali Khan and others v. Mukamil Shah and others 2005 SCMR 431; Muhammad Ilyas v. Ghulam Muhammad and another 1999 SCMR 958; Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 and Chaudhry Muhammad Saleem v. Fazal Ahmad and 2 others 1997 SCMR 315 ref.

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

----Art. 189---Judgment rendered by the Full Bench of Supreme Court comprising five Judges would be binding upon the Bench comprising of three Judges of the Supreme Court.

Chaudhry Muhammad Saleem v. Fazal Ahmad and others 1997 SCMR 315 ref.

Arshad Ali Ch. Advocate Supreme Court for Petitioners.

Zaheer Ahmed Qadri, Advocate Supreme Court for Respondents.

Date of hearing: 25th March, 2005.

2005 S C M R 1206

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Saiyed Saeed Ashhad, JJ

MANZOOR HUSSAIN---Petitioner

versus

SECRETARY, GOVERNMENT OF PUNJAB and another---Respondents

Civil Review Petition No.169 of 2004, decided on 26th April, 2005.

(On review from the judgment, dated 17-6-2004 passed in C.P. No. 1549-L of 2003).

(a) Civil service---

----Appeal before Service Tribunal---Limitation---Limitation for a civil servant to go in appeal before Service Tribunal could not in any case be stretched beyond one hundred and twenty days.

2003 SCMR 826 ref.

Muhammad Siddique v. Mian Amir Khisro 1985 SCMR 1848 and Ghulam Ali Memon's case 2000 SCMR 1474 rel.

Constitution of Pakistan (1973)---

----Art. 212(3)---Question of limitation, though raised before Service Tribunal, but remained unattended---Effect---Supreme Court suo motu could entertain such question.

Mian Allah Nawaz, Advocate Supreme Court for Petitioner.

Dr. Mohy-ud-Din Qazi, Advocate Supreme Court for Respondents.

Date of hearing: 26th April, 2005.

2005 S C M R 1208

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ

SHERZADA---Appellant

Versus

Mian SHAMAS TABREZ and 2 others---Respondents

Civil Appeal No.1911 of 2000, decided on 27th April, 2005.

(On appeal from the judgment dated 3-11-2000 passed by Peshawar High Court, Peshawar,. in Civil Revision No.464 of 1995).

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

----S. 31 [as mended by North-West Frontier Province Pre-emption (Amendment) Act (X of 1992)]---North-West Frontier Province Pre-emption Act (XIV of 1950), S.30---Constitution of Pakistan (1973), Art.185(3)---Pre-emption suit in Provincially Administered Tribal Area---Limitation---Sale took place on 3-12-1992---Suit was filed on 8-4-1993---Trial Court dismissed suit as time-barred, which judgment was upheld by Appellate Court and in revision by High Court---Supreme Court granted leave to appeal to determine, whether limitation provided under North-West Frontier Province Pre-emption Act, 1950, North-West Frontier Province Pre-emption Act, 1987 or that provided under General Islamic Law would govern such case; and that what would be the effect of the. rule laid down in Government of N.-W.F.P. v. Malik Said Kamal Shah PLD 1986 SC 360 and Muhammad Ismail Qureshi v. Government of N.-W.F.P. 1992 PSC 5 over the facts of such case.

Government of N.-W.F.P. v. Malik Said Kamal Shah PLD 1986 SC 360 and Muhammad Ismail Qureshi v. Government of N.-W.F.P. and another 1992 PSC 75 ref.

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

----S. 31 [as mended by North-West Frontier Province Pre-emption (Amendment) Act (X of 1992)]---North-West Frontier Province Pre-emption Act (XIV of 1950), S.30---Pre-emption suits in Provincially Administered Tribal Area---Limitation---Concept of law of pre-emption in Islam was to exercise right of pre-emption without unnecessary delay---North-West Frontier Province Pre-emption Act, 1950 was no more operative after 31-8-1986---North-West Frontier Province Pre-emption Act, 1987 was extended to PATA w.e.f. 25-9-1994---Pre­emption suits in such area in the intervening period would be governed by General Muslim Law of Pre-emption for which period of limitation of 120 days would be reasonable---Suits filed beyond 120 days would be treated as barred by time---Principles.

Government of N.-W.F.P. v. Malik Said Kamal Shah PLD 1986 SC 360 and Muhammad Ismail Qureshi v. Government of N.-W.F.P. and another 1992 PSC 75 ref.

Abdul Samad Khan, Advocate Supreme Court for Appellant.

Respondents: Ex parte.

Date of hearing: 21st February, 2005.

2005 S C M R 1212

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

CHIEF SECRETARY, GOVERNMENT OF N.-W.F.P. and others---Appellants

Versus

Syed ZAFARMAND ALI---Respondent

Civil Appeal No.1685 of 2003, decided on 28th April, 2005.

(On appeal from the judgment, dated 27-12-2002 of the N.-W.F.P. Service Tribunal, Peshawar, passed in Appeal No.1315 of 1999).

(a) Civil service---

----Lien---Termination---Transfer of civil servant to other department on his own pay and scale---Non-induction of civil servant in borrowing department on permanent basis---Willingness shown by civil servant to be absorbed in borrowing department, but in absence of any order of appointment by transfer and settlement of terms and conditions of such appointment---Held: Lien of civil servant in his parent department could not be terminated.

Syed Sajjad Hussain v. Secretary, Establishment Division, Cabinet Secretariat, Islamabad and 2 others 1996 SCMR 284 and Mazhar Ali v. Federation of Pakistan through the Secretary Establishment Division, Cabinet Secretariat and 2 others 1992 SCMR 435 fol.

(b) Civil service---

----Lien---Termination---Lien of a permanent civil servant could not be terminated even with his consent, unless he had been confirmed against some other permanent post.

Syed Sajjad Hussain v. Secretary, Establishment Division, Cabinet Secretariat, Islamabad and 2 others 1996 SCMR 284 and Mazhar Ali v. Federation of Pakistan through the Secretary Establishment Division, Cabinet Secretariat and 2 others 1992 SCMR 435 fol.

Hafiz Aman, Advocate Supreme Court with Noorullah, D.S. Home Department for Petitioners.

Abdul Samad Khan, Advocate-on-Record for Respondent.

Date of hearing: 17th March, 2005.

2005 S C M R 1217

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ

MUHAMMAD ZUBAIR and others---Appellants

Versus

MUHAMMAD SHARIF---Respondent

Civil Appeal No.987 of 2000, decided on 18th April, 2005.

(On appeal from the judgment dated 17-8-1999 of the Lahore High Court, Lahore passed in Civil Revision No.451 of 1999).

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

----Ss. 2, 2-A [as added by West Pakistan Muslim Personal Law (Shariat) Application (Punjab Amendment) Ordinance (XIII of 1983)] & 3---Civil Procedure Code (V of 1908), S.11---West Pakistan Land Revenue Act (XVII of 1967), Ss.42 & 163---Succession---Supreme Court granted leave to appeal to consider questions, whether disputed mutation could be reviewed by Collector after 52 years, when question of absolute ownership of female limited owner had twice been determined in earlier rounds of litigation, which had attained finality; whether in such circumstances the Courts in final round of litigation were obliged to follow the law laid down in Abdul Ghafoor v. Muhammad Shafi PLD 1985 SC 407 and Mst. Farida and 2 others v. Rehmatullah and others PLD 1991 SC 213; and whether the petitioners for failing to establish ancestral nature of property had any right of succession therein under Sharia.

Abdul Ghafoor v. Muhammad Shafi PLD 1985 SC 407 and Mst. Farida and 2 others v. Rehmatullah and others PLD 1991 SC 213 ref.

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

----Ss. 2, 2-A [as added by West Pakistan Muslim Personal Law (Shariat) Application (Punjab Amendment) Ordinance (XIII of 1983)] & 3---Civil Procedure Code (V of 1908), S.11---West Pakistan, Land Revenue Act (XVII of 1967), S.42---Termination of limited interest in property of last male owner---Effect---Right to succession of deceased owner---Scope and proof---Inheritance mutation without proving relationship between claimants and deceased owner---Evidentiary value---Property of deceased would revert to his legal heirs and his succession. would be deemed to have opened on his death---Property of Muslim deceased would be deemed to have devolved on all those persons, who were his heirs according to Sharia on the date of his death and in case of death of any of them, his share would devolve on his heirs---Right of succession would not be defeated by law of limitation or principle of res judicata as no law or judgment could override law of Sharia being a superior law---Right of succession could not be claimed without first establishing through direct and legal evidence. that property involved limited interest and that claimants were legal heirs of last male owner---Inheritance mutation or subsequent Revenue Record prepared on its basis could not be considered as an evidence of existence of relationship between claimants and last male owner of property.

Mst. Ghulam Janat and others v. Ghulam Janat through Legal Heirs and others 2003 SCMR 362; Ismail' and another v. Ghulam Qadir and others 1990 SCMR 1667 and Muhammad Yousaf through Legal Heirs and 2 others v. Mst. Karam Khatoon through Legal Heirs and 2 others 2003 SCMR 1535 ref.

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

---Ss. 42 & 163---Mutation---Status of deceased female as a limited or full owner of property and relationship of claimants with last male owner already determined by Civil Court---Interference in such matter by Collector on basis of oral assertion of claimants---Scope---Collector in exercise of his limited jurisdiction under Revenue Law could not interfere in such matter and sit over judgment/decree of Civil Court and undo its effect---Principles illustrated.

(d) Islamic law---

---Succession under Sharia---Right of succession would not be defeated by law of limitation or principle of res judicata as no law or judgment could override law of Sharia being a superior law.

(e) Islamic Law---

----Inheritance, right of---Proof---Such right could not be created or extinguished merely on basis of oral assertion---Person asserting relationship with deceased owner must prove same through positive evidence---Question of relationship was purely a question of fact, which would necessarily be decided on the basis of evidence and burden to prove same would lie on the person claiming right of succession.

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

--Arts. 2(4) & 112---Fact not proved on record through evidence---Evidentiary value---No judicial , notice could be taken of such fact.

(g) Constitution of Pakistan (1973)---

----Art. 185(3)---Concurrent findings on question of fact by three Courts---Validity---Supreme Court would not interfere in such findings in absence of any jurisdictional error or legal defect or misreading or non-reading of evidence.

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

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

Date of hearing: 28th February, 2005.

2005 S C M R 1225

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi and Saiyed Saeed Ashhad, JJ

PAKISTAN TELECOMMUNICATION COMPANY LIMITED through Chairman and 3 others---Petitioners

Versus

Messrs MUHAMMAD SAEED WAZIR, former General-Manager, (T&R) PTCL and another---Respondents

Civil Petition No.1136 of 2003, decided on 6th May, 2005.

(On appeal from the judgment dated 9-4-2003 passed by Federal Service Tribunal, Islamabad in Appeal No.87-P (CS) of 2001).

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 3(1)(a)(b)(c)(d)(e) & 5---Government Servants (Efficiency and Discipline) Rules, 1973---Constitution of Pakistan (1973), Art. 212(3)---Dismissal from service---Contention of the petitioner was that civil servant having entered into a plea bargain with National Accountability Bureau, could be dismissed under S.3(1)(c)(iv) of the Removal from Service (Special Powers) Ordinance, 2000---Validity---Issuance of show-cause notice and holding of inquiry, in the given circumstances, was necessary under S.3, Removal from Service (Special Powers) Ordinance, 2000---When neither any show-cause notice was issued nor any inquiry was held, Service Tribunal had rightly set aside the impugned order of dismissal---Regardless of whether the proceedings were taken under Government Servants (Efficiency and Discipline) Rules, 1973 or under Removal from Service (Special Powers) Ordinance, 2000, a dismissal without notice and without inquiry could not be ordered in circumstances of the present case---Petition for leave to appeal was dismissed.

The insertion of sub-clause (c) (iv) in subsection (1) of section 3 of the Removal from Service (Special Powers) Ordinance, 2000 merely makes an addition to the grounds for action from (a) to (e) and does not authorize the competent authority to pass any order without enquiry. The closing paragraph of section 3 subsection (1) clearly lays down that if conditions given under sub-clauses (a) to (e) are available, the competent authority, after inquiry by the Inquiry Officer or the Inquiry Committee appointed under section 5, may dismiss or remove the civil servant from service or take any other action alluded to in the aforementioned para.

The issuance of show-cause notice and the holding of inquiry, in the given circumstances was necessary under section 3 of Removal from Service (Special Powers) Ordinance, 2000. In the present case, neither any show-cause notice was issued nor any inquiry was held and thus, Tribunal had rightly set aside the impugned order of dismissal. Regardless of whether the proceedings were taken under Government Servants (Efficiency & Discipline) Rules 1973 or under Removal from Service (Special Powers) Ordinance 2000, a dismissal without notice and without inquiry could not be ordered in the circumstances of the present case.

Hafiz S.A. Rehman, Advocate Supreme Court with M.A. Zaidi Advocate-on-Record for Petitioners.

Respondent No. 1 in person.

Date of hearing: 6th May, 2005.

2005 S C M R 1228

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

ABDUL HAKEEM---Appellant

Versus

Mst. JANNAT BIBI---Respondent

Civil Appeal No.1606 of 2001, decided on 16th March, 2005.

(On appeal from the judgment dated 5-10-1999 passed by the Lahore High Court, Lahore in Civil Revision No.35-D of 1997).

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

----S. 13---Transfer of Property Act (IV of 1882), S.3---Talbs performance of---Essentials---Notice of Talb-i-Ishhad---Proof---Not only making of Talbs would be necessary, but same must be made in accordance with the order in which they were placed---After performance of Talb-i-Muwathibat, making of Talb-i-Ishhad would not only be mandatory, but must be made within fourteen (14) days of Talb­-i-Muwathibat---Talb-i-lshhad would be constituted by sending a notice in writing attested by two truthful witnesses, whereby intention to exercise right of pre-emption would be conveyed through creation of evidence in writing---Notice of Talb-i-Ishhad must be attested by two truthful witnesses and must be served---Attestation of notice would be proved by production of evidence---Notice of Talb-i-Ishhad would not be considered to be proved or properly given under S.13(3) of Punjab Pre-emption Act, 1991, where same was neither signed by pre-emptor nor did contain any attesting witness, but was given through an Advocate, who was not produced in evidence.

Abdul Malik v. Muhammad Latif 1999 SCMR 717; Haji Lal Shah's case 2004 SCMR 409 and Muhammad Hussain's case 2004 SCMR 737 ref.

Zakria Sheikh, Advocate Supreme Court for Appellant.

Ch. Muhammad Akram, Advocate Supreme Court for Respondent.

Date of hearing: 16th March, 2005.

2005 S C M R 1231

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza, Muhammad Nawaz Abbasi and Falak Sher, JJ

MUHAMMAD SIDDIQUE---Appellant

Versus

MUHAMMAD SHARIF and others---Respondents

Civil Appeal No.487 of 2000, decided on 15th March, 2005.

(On appeal from the judgment dated 21-2-2000 of the Lahore High Court, Multan Bench passed in R.F.A. No.84 of 1993).

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

----O.XLI, R.27---Production of additional evidence in Appellate Court could be allowed only in exceptional circumstances---Circumstances explained.

The additional evidence can be allowed only in exceptional circumstances in a case in which the evidence required to be brought on record was essential for the just decision of the case and such evidence either was not available or was beyond the reach of the party concerned at the relevant time or if pertaining to the official record was not in his knowledge.

Ghulam Jillani and 3 others v. Ghulam Muhammad and 7 others 1991 SCMR 2001 ref.

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

----S. 13(3)---Notice of Talb-i-Ishhad, service of---Presumption---Such notice should be sent by registered post---In absence of service of notice by registered post, no presumption of its service on basis of oral assertion could be raised---Photo copy of such notice, even if produced in evidence, would not be an evidence of service of notice.

(c) Pre-emption---

----Right of---Right of pre-emption is a feeble right, thus, its existence and enforcement must be strictly proved.

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

----S. 13---Talbs, performance of---Fundamental requirement for enforcement of right of pre-emption---Pre-emptor must prove performance of Talbs through clear evidence---Without fulfilling requirement of Talb-i-Muwathibat and Talb-i-Ishhad in proper manner, right of pre-emption would be extinguished---Principles.

The pre-emptor must prove the performance of Talbs through clear evidence, which is the fundamental requirement for enforcement of right of pre-emption under the Punjab Pre-emption Act, 1991, and also under Muslim Law of Pre-emption. The statutory law is based on the concept of Muslim Law of Pre-emption, according to which without fulfilling the requirement of Talbs namely Talb-i-Muwathibat and Talb-i-Ishhad in proper manner, right of pre-emption is extinguished and Talb­i-Muwathibat must be made immediately on coming to know about the sale. Talb-i-Muwathibat is a first and immediate demand by the pre-emptor to make a proclamation and pronouncement of his intention to exercise right of pre-emption, and Talb-i-Ishhad is second demand, which must be established to have been made in the manner, it is required to be made under the law.

(e) Islamic Law---

----Pre-emption suit---Absence of statutory law of pre-emption---Effect--Such suit would be governed in accordance with Muslim Law of Pre-emption, according to which right of pre-emption could not be claimed without fulfilling the requirement of Talbs---Non-performance of Talb-i-Muwathibat or Talb-i-Ishhad would defeat right of pre-emption.

Haji Qadir Gul v. Moembar Khan and another 1998 SCMR 2102; Sardar Ali and others v. Additional Secretary Home and T.A. Department and others 1996 SCMR 1480 and Khairullah v. Sultan Muhammad and another 1997 SCMR 906 rel.

(f) Punjab pre-emption Act (IX of 1991)---

----S. 13---Pre-emption suit---Non mention in plaint of particular date and place of making Talb-i-Muwathibat or when pre-emptor acquired knowledge about transaction---Pre-emptor stated in plaint in general terms that he came to know about transaction in beginning of May, 1990---Evidence produced by pre-emptor did not show that Talb-i-Muwathibat and Talb-i-Ishhad were made either in terms of Muslim Law of pre-emption or in accordance with statutory provision---Held: Performance of Talbs must be proved through clear evidence---Pre­emptor had not established such essential requirement of law---Suit was dismissed in circumstances.

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

----S. 13---Provision of S. 13 of Punjab Pre-emption Act, 1991, not in conflict with concept of Muslim Law of Pre-emption.

Gulzarin Kiani, Advocate Supreme Court for Appellant.

Ch. Mushtaq Ahmad Khan, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents Nos.1 and 2.

Date of hearing: 15th March, 2005.

2005 S C M R 1237

[Supreme Court of Pakistan]

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

MOHIB TEXTILE MILLS LIMITED through Director/Shareholder/Representative, Former Management of the Company---Petitioner

Versus

NATIONAL BANK OF PAKISTAN, KARACHI and others---Respondents

Civil Appeal No.1540 of 2000 and C.P.L.A. No.124-L of 2001, decided on 25th April, 2005.

(On appeal from order dated 22-9-2000 of the Lahore High Court, Lahore, passed in C.M.No.769 of 2000 in C.O. No.100 of 1998 and Order dated 10-11-2000 passed in C.Ms. Nos.873-L of 2000 and 882-L of 2000 in C.O.No.100 of 1998).

Per Faqir Muhammad Khokhar, J; Sardar Muhammad Raza Khan, J. agreeing; Mian Muhammad Ajmal, J., Contra---[Majority view]---

(a) Companies Ordinance (XLVII of 1984)---

----Ss. 33(f) & 305---Winding up of company---Auction of assets of company by official liquidators---Confirmation of sale and transfer of bid right in favour of an other party---Objection petition by the company alleging that property was sold at a price entirely disproportionate to the actual value and bid could not be transferred without registration of sale in favour of original bidder---Validity---Sanctity to judicial sale of property is to be maintained as far as possible, however, the Courts have also a duty to ensure that such sales should be seen to have been made in the most fair, transparent, judicious manner and above any suspicion so that the interests of all the stake holders are properly safeguarded---Court cannot ascertain the genuineness or otherwise of the offer---When a bid was withdrawn and company Judge had made it clear that the said bid could not be considered alive, thereafter there were no valid reasons or exceptional circumstances for the revival and acceptance of the offer of same bidder with a nominal increase and to confirm the sale---Matter of withdrawal of bid by the bidder had become a past and closed transaction---Objection taken by the petitioners against the confirmation of sale in favour of the said bidder and its subsequent transfer of the bid rights in favour of another party was not attended to in their proper perspective---Such transfer could not be made without the registration of sale in favour of the said bidder---Auction-purchaser had sold his rights without payment of entire sale price and thus without becoming the owner---Proceedings of re-auction of the assets of the Company by the joint official liquidators suffered from the same defects and infirmities which was noticed by the High Court in respect of earlier auction and re-auction was ordered---Orders of confirmation of sale by the High Court were not sustainable at law in circumstances---Case was remitted to the High Court for a re-sale---Reasons.

Per Faqir Muhammad Khokhar, J.---

In the present case Chief Executive of the company was behind the bars on account of criminal proceedings initiated by the National Accountability Bureau. It appears that the other share-holders/Directors of the company had either gone into hide or had left the country. There was no one else who could safeguard their interests effectively in the matter of sale of assets of the Company through auction. In such a situation, the joint official liquidators were required to exercise due diligence and to take utmost care for ensuring fair and transparent sale of the mills. The joint official liquidators did not fix any reserve price keeping in view the value of the assets to be sold.

The Company Judge made it clear that a particular bid could not be considered to be alive. Thereafter, there were no valid reasons or exceptional circumstances for the revival and acceptance of the offer of the same bidder with a nominal increase of 10 million rupees and to confirm the sale. In the present case, the matter of withdrawal of bid by the bidder had become a past and closed transaction.

One bidder had made an offer of Rs.25,00 million for the purchase of total project of the company with a down payment of Rs.150 million. The said consortium was directed by the High Court to tender the earnest money in the Court on the next date of hearing. Thus reasonable time was not given to the said consortium to tender the earnest money.

The joint official liquidators did not carry out the order by the High Court in its letter and spirit for conducting the auction of the company. The available record would not' show that any independent valuer of high repute and integrity with necessary expertise in the relevant field was appointed to carry out the valuation of assets of the mills before putting the same to auction. The mere publication on one occasion in two English newspapers and one Urdu daily newspaper was not sufficient to ensure the widest possible participation of the prospective bidders. The project to be sold was not a small entity. Therefore, the advertisement was also to be placed in newspapers with an international circulation. The desirability of circulating the invitation through Stock Exchange was also to be considered. The publication in the newspapers of national circulation on at least two occasions with not less than seven days interval might have attracted more participants for the bidding.

Sanctity to judicial sale of property is to be maintained as far as possible. However, the Courts have also a duty to ensure that such sales should be seen to have been made in the most fair, transparent, judicious manner and above any suspicion so that the interest of all the stake-holders are properly safeguarded. Court cannot ascertain the genuineness or otherwise of the offer. But the fact remains that the bidder had offered a bid of Rs.2500 million for purchase of assets with a down payment of Rs.150 million. Even some other bidder had offered the bids for the purchase of three units separately which carne to be higher than that of the respondent. Another bidder had also offered a bid of Rs.2001 millions.

The official liquidator is vested with power under section 333(1)(f) of the Companies Ordinance, 1984 "to sell the movable and immovable property and things in action of the company by public auction or private contract, with power to transfer the whole whereof to any person or company or to sell the same in parcels" under the said section, the Court has been vested with complete discretion to sanction the sale or not. Such discretion must be exercised judiciously having regard to the interest of the company and its creditors.

Moreover, the objections taken by the petitioners against the confirmation of sale in favour of respondent and its subsequent transfer of the bid rights in favour of another party were not attended to in their proper perspective. The proceedings of re-auction of the assets of the company by the joint official liquidators suffered from the same defects and infirmities as were noticed by the High Court in respect of earlier auction of the company. Orders passed by the Company Judge of the High Court were not sustainable at law.

Supreme Court allowed the appeal, consequently, the impugned orders were set aside and the case was remitted to the High Court, for a re-sale of the assets of the , company in accordance with law, as expeditiously as possible. The Company Judge shall be at liberty to make such arrangements and to take such measures for the management and administration etc. of the mills during the interregnum as it may consider appropriate in the best interest of the company and the creditors.

Messrs Sarbaz Cement Ltd. v. Bankers Equity Ltd. and others 1996 SCMR 88; Hudaybia Textile Mill Ltd. and others v. Allied Bank of Pakistan Ltd. and others PLD 1987 SC 512; Messrs Ittehad Cargo Service v. Messrs Syed Tasneem Hussain Naqvi PLD 2001 SC 116; S. Sounderajan and others v. Kaka Mahomed Ismail Saheb of Messrs Roshan & Co. AIR 1940 Mad. 42; United Bank Limited v. Messrs A.Z. Hashmi (Pvt.) Ltd. 2000 CLC 1438 and Pakistan Industrial Credit and Investment Corporation Ltd. v. Shandin Limited 2001 CLC 1267 ref.

Per Sardar Muhammad Raza Khan, J.--

The main point that falls for determination is as to whether the impugned auction in favour of respondent and thereafter its transfer in favour of another party been made in a fair and transparent manner. Whether serious efforts had been made by the auctioneer or by the Court to fetch maximum price of the assets, keeping in view the larger interest of creditors as well as the company under liquidation.

Coming to the events related to auction proceedings, it was contended that according to the Joint Official Liquidators report the highest bid of rupees 3000 million of one bidder and rupees 2.001 billion of another bidder was ignored and that of rupees 1.01 billion was recommended. In the given conditions, the objections raised by the former management were accepted by the Court holding that the sale price was not acceptable and wider publicity needed to be given.

In the second auction vide report the bid offered by a. joint venture was accepted for a sum of rupees 1.071 billion and due to negotiations after the sale, the bid was increased to 1.08 billion i.e. 108 crores of rupees.

To this also the former management/ appellant raised serious objections that (i) wide publicity was not given (ii) no publication was made through APTMA, Stock Exchange, Gulf News Magazine and other commercials on Electronic Media (iii) the offer again was disproportionate to the actual value (iv) this report also suffered from exactly the same illegalities committed in earlier report disapproved by the Court (v) offer of highest bidder as 2001 million and rupees 1800 million was ignored illegally (vi) even NAB Authorities addressed a letter to the official liquidator informing that the value of assets was five billion and it should not be sold at throw-away price (vii) no reserve price was ever fixed before auction (viii) Court never made any assessment of value of assets before inviting bids (ix) interest of share-holders not at all considered (x) the amount of liabilities and the interest of all the creditors was not taken into consideration.

A huge concern like the one in dispute, before auction, was not sufficiently advertised and publicized. No reserve price was ever fixed by the Court meaning thereby that it did not even attempt to determine the approximate value of company by judicial application of mind. The Experts submitted their report which was confirmed by Chartered Accountants holding the approximate value of the company at Rs.3.2 billion. The Bank also assessed the value at Rs.4.00 billion. All these references should have guided the Court, as different pieces of evidence, to fix the value of the company at some approximate level and to have fixed the same as reserve price. It was not so done.

There was a nominal difference between the price obtained in the first auction and then in the second auction. Similar objections were available in the second auction on the basis of which the first auction was set aside by accepting such objections as valid. While going through the process of auction and ultimately while accepting the same, the main consideration before the Court was to abide by some procedure in routine and no primary consideration was about market value. The valuation by NAB Authorities might not be taken as an absolute evidence towards market value yet it was rupees five billion which could have persuaded the Court to think twice before accepting an offer of rupees 1.081 billion, totally disproportionate to other expected prices.

All the four bidders withdrew their bids. The withdrawal of earnest money was also admitted. At this stage when once all the bidders had withdrawn including the highest bidder of rupees 1.071 billion, there was no reason to allow the bidder to re-enter the arena, not by auction but by negotiations.

The fresh offer of the bidder of rupees 1.081 billion given after withdrawal, ought to have been made in presence of the other bidders, if best way of re-auction was not selected. The conditions of this last offer are such that it amounted altogether to new bid. Former management was not allowed sufficient time to fulfil terms of offer or highest bid while, on the other hand the bidder was given convenient terms by allowing 30 days for initial deposit of 25% while against the offer of former management they were. directed to deposit rupees 125 million in 2 to 7 days. Bidder was allowed five years to repay though under Order XXI, Rr.84 and 85, C.P.C. total auction price needs to be deposited within 15 days.

No time was allowed to one bidder for practically justifying her offer of rupees 250 crores. Official Liquidators excluded two bidders the plea that the earnest money was offered partly through cheque and partly through draft despite the fact that the genuineness of such payments could have been ascertained through the Bank. Payment by cheques and Bank drafts can be accepted with the only reservation that the auctioneer or the Court should verify the genuineness thereof from the Bank. No such effort was made in the present case.

The transfer of rights by the bidder in favour of another party could not be made without the registration of sale in favour of the said bidder. The auction purchaser had sold his rights without payment of entire sale price and thus without becoming the owner. The transferee was a young company incorporated on 20-10-2000 and financially not sound. The arguments qua further transfer in its favour are mostly of academic nature because once it is held that the bid in favour of the said auction-purchaser was not valid and proper, the transfer automatically goes therewith.

If the company is sold at the given price and the Court did not act in the best interest of all the persons interested in the property and the assets of the company under liquidation are not kept under consideration, then the purpose is not served and no breaches can be condoned.

The impugned orders were set aside and the case was remanded to the High Court with direction that the assets of the company be put to resale through auction. The Company Bench shall keep the market value in view and the same, in the given attending circumstances, shall be fixed as reserve price. It shall of course, be at liberty to make such arrangements and take such measures for management and administration etc. of the Mills during interregnum as it may consider appropriate for the best interest of the company and the creditors.

Sagar Mahila Vidyalaya's case AIR 1991 SC 1826; Messrs Ittehad Cargo Service's case PLD 2001 SC 116 and Mst. Asima Zafarul Hassan's case 1981 SCMR 108 distinguished.

Messrs Sarbaz Cement Ltd. v. Bankers Equity Ltd. and others 1996 SCMR 88; Hudaybia Textile Mill Ltd. and others v. Allied Bank of Pakistan Ltd. and others PLD 1987 SC 512; Messrs Ittehad Cargo Service v. Messrs Syed Tasneem Hussain Naqvi PLD 2001 SC 116; S. Sounderajan and others v. Kaka Mahomed Ismail Saheb of Messrs Roshan & Co. AIR 1940 Mad. 42; United Bank Limited v. Messrs A.Z. Hashmi (Pvt.) Ltd. 2000 CLC 1438; Pakistan Industrial Credit and Investment Corporation Ltd. v. Shandin Limited 2001 CLC 1267; Mubarak Ali Khan's case PLD 1982 SC 315; K. Saraswathy's case AIR 1989 SC 1553; Specialty Trader's case 1987 CLC 2109; Chemicals and Allied Products 1988 Company Cases 842 and Messrs H.P. Financial Corporation 1990 ISJ (Banking) 395 ref.

Per Sardar Muhammad Raza Khan, J. agreeing with Faqir Muhammad Khokhar, J.---

(b) Letters Patent (Lahore)---

----Cl. 26---Point of difference or for making reference to one or more Judges---Form---Clause 26, Letters Patent in terms does not provide for any form stating point of difference or for making reference to one or more Judges---Point or points of difference can well be found out by the Referee Judge or Judges upon perusing judgments of dissenting Judges and final decision of the case rests on opinion of all Judges hearing the case.

Mubarak Ali Khan's case PLD 1982 SC 315 ref.

Per Mian Muhammad Ajmal, J., Contra, [Minority view].

Syed Najmul Hassan Kazmi, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record for Petitioner (in both Cases).

Raja Muhammad Akram, Senior Advocate Supreme Court for Respondent No.1.

Malik Muhammad Hussain, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.2(i).

Syed Ali Zafar, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate-on-Record for Respondents Nos. 4 and 5.

Date of hearing: 19th April, 2004.

2005 S C M R 1263

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

MUHAMMAD ISHTIAQ and others---Petitioners

Versus

PUNJAB SERVICE TRIBUNAL, LAHORE and others---Respondents

C.P.L.As. Nos.1383, 1384, 1385, 1386, 1387, 1388, 1389, 1390, 1391, 1392, 1393 and 1394-L of 2002, decided on 10th March, 2003.

(On appeal from the order, dated 25-2-2002 passed by the Punjab Service Tribunal, Lahore in Appeals Nos.1487, 1488, 1489, 1490, 1491, 1492, 1493, 1494, 1495, 1496, 1497 and 1498 of 2001).

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

----S.4---Constitution of Pakistan (1973), Art.212(3)---Termination of service---Appointment against leave vacancies---Adjustment against regular vacancies---Petitioners were appointed against leave vacancies and order of their termination passed by the authorities was maintained by Service Tribunal---Validity---Service Tribunal had rightly found that the services of petitioners were liable to be terminated as soon as the officials who proceeded on leave reported back to duty but the petitioners were adjusted against regular vacancies---Service Tribunal had further rightly found that the posts were never advertised and neither sufficient number of applications were received nor interviews of the petitioners were taken by Recruitment Committee furthermore no merit list was prepared---Service Tribunal was also right in holding that the petitioners were adjusted against regular vacancies without observing procedure for recruitment and without merit and such adjustment orders being ab initio void could not be sustained---Supreme Court declined to take any exception to the judgment passed by Service Tribunal---Petitioners failed to disclose any question of law of public importance---Leave to appeal was refused:

Rafique Ahmad Bajwa, Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for Petitioners.

M. Saleem Shad, Advocate Supreme Court for Respondents.

Date of hearing: 10th March, 2002.

2005 S C M R 1265

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Sardar Muhammad Raza Khan, JJ

DEPUTY COLLECTOR OF CUSTOMS, RAILWAY STATION, LAHORE---Petitioner

Versus

Messrs ABDUL GHAFFAR ABDUL REHMAN and others---Respondents

Civil Petition No.364-L of 2002, decided on 6th July, 2004.

(On appeal from the judgment, dated 16-11-2001 passed by the Lahore High Court, Lahore, in Writ Petition No.18286 of 2001).

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

----S. 30(c)---Sales tax paid on imported goods---Inclusion of amount of sales tax towards income of importer---Validity---Such amount could not be deemed to be income of importer, thus, could not be subjected to payment of income-tax.

Messrs Ramna Pipe of General Mills (Pvt.) Limited v. The Federation of Pakistan 1994 PTD 848 approved.

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

----S. 30(c)---Constitution of Pakistan (1973), Arts.185(3) & 199---Imported goods---Collection of income-tax by Collector of Customs after making assessment on basis of Bill of Entry including customs duty and sales tax---High Court excluded customs duty and sales tax while assessing income of importer for income-tax purposes---Petition for leave to appeal by Collector of Customs against impugned order---Maintainability---Income Tax Department, though party in the Constitutional petition before High Court, had not filed petition for leave to appeal---Collector of Customs, though party in Constitutional petition, had neither contested matter nor appeared nor filed any comments before High Court---Customs Authorities were merely collectors of tax on behalf of Income Tax Department---Supreme Court dismissed petition and refused leave to appeal.

Messrs Ramna Pipe of General Mills (Pvt.) Limited v. The Federation of Pakistan 1994 PTD 848 approved.

Ahmer Bilal Soofi, Advocate Supreme Court with Mian Ata-ur-Rehman, Advocate-on-Record for Petitioner.

M. Shahzad Shoukat, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Respondents.

Date of hearing: 6th July, 2004.

2005 S C M R 1267

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

MUHAMMAD SHAFIQUE---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Civil Petition No.3458-L of 2001, decided on 26th February, 2003.

(On appeal from the judgment dated 1-10-2001 passed by the Punjab Service Tribunal, Lahore, in Appeal No.429 of 1998).

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

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Punjab Health, Department (Medical and Dental Teaching posts) Service Rules, 1979---Appointment as Assistant Professor (Biochemistry)---Qualification---Grievance of civil servant was that despite having qualification of M.Sc. (Hons) Chemistry with experience of Research and Specialization in Biochemistry, he was not appointed as Assistant Professor (Biochemistry)---Appeal before Service Tribunal was dismissed---Validity---By change in service rules made in year, 1988, non-medical personnel were no longer eligible for the post of Assistant Professor (Biochemistry) and were therefore, not considered for appointment---Civil servant although acquired his M.Phil (Biochemistry) in year, 1989 but he lacked the requisite basic qualification of M.B.,B.S.---Civil servant could not insist for appointment to a post for which he was no longer qualified---Judgment passed by Service Tribunal did not suffer from any legal infirmity so as to warrant interference by Supreme Court---No substantial question of law of public importance was involved in the case as envisaged by Art.212(3) of the Constitution---Leave to appeal was refused.

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

----S. 4--- Appeal--- Maintainability--- Pre-conditions--- Order of departmental authority is sine qua non for invoking appellate jurisdiction of Service Tribunal under S.4 of Service Tribunals Act, 1974.

S.K.M. Lodhi, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing; 26th February, 2003.

2005 S C M R 1270

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Falak Sher and M. Javed Buttar, JJ

MUHAMMAD IRFAN---Petitioner

Versus

Rana MUHAMMAD AFZAL and others---Respondents

Criminal Petition No.340-L of 2002, decided on 19th October, 2004.

(On appeal from the judgment dated 1-4-2002 of the Lahore High Court, Lahore passed in Criminal Appeal No.293 of 2000).

Penal Code (XLV of 1860)---

----S. 308(2)---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---No factual or legal infirmity, could be pointed out in the impugned acquittal of accused by the High Court---Killing of the deceased had gone un-witnessed---One witness of the extra-judicial confession allegedly made by accused had refused to support the prosecution case---Other witness of the said confession was a Police Officer and the confession made in his presence was not admissible---Conviction also could not be safely based on the extra-judicial confession alone---Contention that in view of the affidavit of the complainant-petitioner forgiving the accused the latter having sought pardon had impliedly confessed. his guilt, was fallacious---Leave to appeal was refused to complainant in circumstances.

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

Nemo for Respondent No.1.

Mian Abdul Qayyum Anjum, Advocate Supreme Court for the State/Respondent No.2.

Date of hearing: 19th October, 2004.

2005 S C M R 1271

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Faqir Muhammad Khokhar, JJ

BASHIR AHMAD and 2 others---Petitioners

Versus

ATTA MUHAMMAD KHAN and 20 others---Respondents

Civil Petition No.2201-L of 2002, decided on 8th July, 2002.

(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench, Bahawalpur, dated 24-4-2002 passed in Civil Revision No.76-D of 1987).

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

----S. 4---Succession---Sons of pre-deceased daughter (plaintiffs) claimed share in legacy left by her father---Proof---Relationship of pre-deceased daughter with her father was proved by plaintiffs through witnesses---Such relationship was admitted by one defendant in his statement before Court---Inheritance mutation attested in year 1967 indicated that father had died after promulgation of Muslim Family Laws Ordinance, 1961---Plaintiffs, in circumstances, were entitled to inherit share of their mother by virtue of S.4 of Ordinance, 1961.

Zahid Hussain Khan, Advocate Supreme Court for petitioners.

Nemo for Respondents.

Date of hearing: 8th July, 2002.

2005 S C M R 1273

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Sardar Muhammad Raza Khan, JJ

Mrs. ALIA KHALID and others---Petitioners

Versus

NAZIR AHMAD and others---Respondents

Civil Petition No.2517-L of 2001, decided on 13th June, 2003.

(On appeal from the order, dated 3-4-2001 of the Lahore High Court, Lahore passed in Civil Revision No.2081 of 1990).

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

----S. 19---Specific Relief Act (I of 1877), Ss.8 & 42---Constitution of Pakistan (1973), Art.185(3)---Declaration of title and possession---Colony land---Private partition prior to grant of proprietary rights---Effect---Ratification of private partition---After allotment of suit-land, the parties privately partitioned the same and remained in possession of their respective shares even after the conferment of proprietary rights by the Government---Plaintiff sought declaration and possession on the basis of private partition---Defendant admitted the partition but assailed the same on the ground that the partition had been made prior to conferment of proprietary rights and same was violative of provisions of S.19 of Colonization of Government Lands (Punjab) Act, 1912---Suit was decreed by Trial Court but was dismissed by Appellate Court---High Court in exercise of revisional jurisdiction restored the decision of Trial Court---Validity---On the principles of S.19 of Colonization of Government Lands (Punjab) Act, 1912, in particular and the civil and revenue law in general, no property could be alienated by a tenant or by a person not enjoying proprietary rights without the permission of the real owner which up to the last payment of instalment, remained with the Provincial Government, in case of colony land---When the parties had become absolute owners, they still continued to act upon the same partition---From the date of conferment of proprietary rights, the private partition had become valid, justified and ratified---As the parties had continued acting upon mutual agreement of private partition even subsequent to the conferment of proprietary rights, the partition/exchange had become valid---Partition in question having continuously been acted upon, since allotment of land, the settlement was not hit by the provisions of S.19 of the Colonization of Government Lands (Punjab) Act, 1912---Such partition might had been hit at some initial stage by the provisions of S.19 of the Colonization of Government Lands (Punjab) Act, 1912 but not when the ownership rights had been conferred---Conclusion having been rightly arrived by the High Court, Supreme Court visualized no justification to interfere---Leave to appeal refused.

Ch. Irshad Ullah Chattha, Advocate Supreme Court and Wilayat Umar, Advocate-on-Record (absent) for Petitioners.

Zahid Hussain Khan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Respondents.

Date of hearing: 13th June, 2003.

2005 S C M R 1278

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

Mst. PHAPHAN through L.Rs.---Petitioners

versus

MUHAMMAD BAKHSH and others---Respondents

Civil Petition No.977-L of 2000, decided on 10th March, 2003.

(On appeal from the judgment dated 20-1-2000 passed by the Lahore High Court, Multan Bench, Multan, in Civil Revision No.362-D of 1995).

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Suit for declaration and possession by the Pardahnashin lady---Plaintiff in year 1983 filed suit challenging mutations of transfer attested in years 1959 and 1967---Suit was decreed by Trial Court and Appellate Court, but was dismissed by the High Court in revision-Validity-Plaintiff's witness in cross-examination had admitted his knowledge of suit-land having been redeemed---Another plaintiff's witness had admitted that during consolidation proceedings in year 1964, she was represented through her husband, who put his thumb-impression on consolidation scheme---Suit property had been allocated to defendant in same consolidation proceedings, in which husband of plaintiff had represented her---Presumption of correctness attached to long standing entries in Revenue Record of rights had not been rebutted by satisfactory documentary or oral evidence---Plaintiff had remained in deep slumber for 24 years despite fact that physical possession of land had passed on to defendant---Plaintiff had been proved to be residing with her daughter under same roof in same village at the time she had filed suit for pre-emption against defendant in respect of suit-land---Nothing was available on record to show that plaintiff had ever received her share of produce from defendant in respect of suit property after 1959---High Court in presence of preponderance of evidence on record in favour of the defendant had rightly reversed judgments of Courts below suffering from misreading and non-reading of evidence---Supreme Court dismissed petition.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 ref.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court for Petitioners.

M. Anwar Bhore, Advocate Supreme Court for A.-G., A.H. Masood, Advocate Supreme Court for Respondent No.1.

Date of hearing: 28th February, 2003.

2005 S C M R 1281

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Actg. C.J. Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

KHAN MUHAMMAD and others---Petitioners

versus

GHULAM FARID through L.Rs. and others---Respondents

Civil Petition No.2558-L of 2002, decided on 26th January, 2005.

(On appeal from the judgment dated 14-3-2002 passed by Lahore High Court, Bahawalpur Bench, Bahawalpur in Civil Revision No.90/D of 1987).

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

----S. 2-A---Succession---Death of last male heir in year 1947---Death of daughter proved to have taken place after death of her father (last male heir)---Effect---Parties would not be governed by custom---Property of last male heir would be divided according to Injunctions of Islam---Principles illustrated.

Ch. Muhammad Anwar Bhinder, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Petitioners.

Mian Abbas Ahmad, Advocate Supreme Court and Muhammad Ozair Chughtai, Advocate-on-Record (absent) for Respondents.

Date of hearing: 26th January, 2005.

2005 S C M R 1283

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Tanvir Ahmed Khan, JJ

UMAR HAYAT---Petitioner

versus

TAJ DIN and others---Respondents

Civil Petitions Nos.1755-L and 1756-L of 1999, decided on 27th June, 2002.

(On appeal from the judgments of the Lahore High Court, Multan Bench, Multan dated 8-7-1999 passed in Civil Revisions Nos.296 and 297 of 1986, respectively).

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

----S. 2-A [as added by West Pakistan Muslim Personal Law (Shariat) Application Act (Amendment) Ordinance (XIII of 1983)---Specific Relief Act (I of 1877), S.8---Constitution of Pakistan (1973), Art.185(3)---Suit for possession by reversioner---Sale of land by limited owner in year 1953 was declared ineffective upon reversionary rights of plaintiff through decree dated 26-3-1954---Plaintiff after death of the limited owner filed on 2-5-1964 suit for possession on the basis of such decree---Suit was concurrently dismissed by Courts below as having abated after insertion of S.2-A in West Pakistan Muslim Personal Law (Shariat) Application Act, 1962---Validity---According to S.2-A(b)(c) of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, possession of agricultural land could not be sought on basis of decree affirming right of any reversionar under custom or usage and such decree would be void, in executable and of no legal effect---No exception could be taken to the impugned judgments---Supreme Court dismissed petition and refused leave to appeal.

Federation of Pakistan v. Muhammad Ishaque PLD 1983 SC 273 rel.

Malik Abdul Wahid, Advocate Supreme Court and S. Abul Aasim Jafri, Advocate-on-Record for Petitioner (in both C.Ps.).

Nemo for Respondents (in both C.Ps.).

Date of hearing: 27th June, 2002.

2005 S C M R 1286

[Supreme Court of Pakistan]

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

DEPUTY ADMINISTRATOR, E. T. P. B.---Petitioner

versus

BADAL and others---Respondents

Civil Petition No.2006-L of 2000, decided on 12th June, 2003.

(On appeal from the judgment dated 8-6-2000 of the Lahore High Court, Multan Bench passed in Civil Revision No.26 of 1981).

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

----S. 10---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan (1973), Art.185(3)---Transfer of evacuee property---Permanent Transfer Deed, cancellation of---Bona fide transfer---Disputed transfer was made much prior to year, 1968 and Permanent Transfer Deed was also in favour of plaintiffs---Settlement Authorities cancelled the Permanent Transfer Deed in year 1971, on the ground that the property allotted to plaintiffs was evacuee trust property and rent was demanded from plaintiffs-Cancellation of allotment was assailed before Civil Court and the suit was decreed in favour of plaintiffs---Judgment and decree passed by Trial Court was maintained by High Court in exercise of revisional jurisdiction---Validity---No question was raised at any stage on behalf of Settlement Authorities in any proceedings that the transfer was not bona fide---Authorities defended the suit on the basis of the order of Settlement Commissioner whereby Permanent Transfer Deed was cancelled---Demand of recovery of rent was raised on the basis of the order of cancellation---Such order of Settlement Commissioner was not valid---Permanent Transfer Deed could not be cancelled by Settlement Authorities after they had become functus officio and such transfers were validated by operation of S.10 of Evacuee Trust Properties (Management and Disposal) Act, 1975---Authorities, at no stage, raised the question that the property had not been utilized, bona fidely, by the Settlement Department---Leave to appeal was refused.

Mst. Mariam Bi and 2 others v. The Islamic Republic of Pakistan through Secretary, Ministry of Religious and Minority Affairs and 4 others PLD 1990 Kar. 427 ref.

Mian Qamar-uz-Zaman, Advocate Supreme Court for Petitioner.

Rana Abdur Rahim, Advocate Supreme Court for Respondents.

Date of hearing: 12th June, 2003.

2005 S C M R 1289

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

MULTAN DEVELOPMENT AUTHORITY---Petitioner

versus

ASHIQ MUHAMMAD KHAN and another---Respondents

Civil Petition for Leave to Appeal No.742/L of 2002, decided on 25th March, 2003.

(On appeal from the judgment dated 7-12-2001 of the Lahore High Court, Multan Bench, Multan, passed in Civil Revision No.68-D of 1997).

Punjab Acquisition of Land (Housing) Act (VIII of 1973)---

----S. 6(1)---Constitution of Pakistan (1973), Art.185(3)---Land acquisition---Public notice as well as personal notice to owners and interested persons---Non-service of such statutory notices---Effect---Leave to appeal was granted by Supreme Court to consider, inter alia, whether apart from public notice as envisaged under S.6(1) of Punjab Acquisition of Land (Housing) Act, 1973, was it also necessary to serve personal notice on all owners of land and claimants of interest in such land; whether non-service of personal service would vitiate acquisition proceedings and whether statutory notices contemplated in various provisions of the Act were intended for purpose of assessment of compensation only or were also meant to provide an opportunity to affected persons to object to acquisition of land sought to be acquired.

Anwar Kamal, Advocate Supreme Court with Faizur Rehman, Advocate-on-Record for Petitioner.

Amir Alam Khan, Advocate Supreme Court for Respondents.

Date of hearing: 25th March, 2003.

2005 S C M R 1291

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Mian Muhammad Ajmal, JJ

NATIONAL ACCOUNTABILITY BUREAU---Petitioner

Versus

KHALID MASOOD and another---Respondents

Crl. P.L.A. No.3-K and C.P.L.A. No.9-K of 2003, heard on 7th July, 2004.

(On appeal from order of High Court of Sindh, Karachi, dated 27-8-2002 passed in C.P. No.1171 of 2002 and Criminal Bail Application No.970 of 2002).

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

----Art. 199---National Accountability Ordinance (XVIII of 1999), S.9(b)---Constitutional jurisdiction of High Court under Art.199 of the Constitution---Scope---Bail, grant of-High Court can always grant bail in appropriate cases in exercise of its jurisdiction under Art.199 of the Constitution to any person accused of an offence under the National Accountability Ordinance, 1999, notwithstanding the bar contained in S.9(b) of the said Ordinance.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 ref.

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

----S. 497(5)---National Accountability Ordinance (XVIII of 1999), Ss.9/10---Constitution of Pakistan (1973), Art.185(3)---Bail, cancellation of---High Court by means of a well-reasoned and elaborate order had granted bail to accused taking into consideration all the essential aspects of the case in the exercise of jurisdiction at bail stage---Considerations for cancellation of bail were altogether different and distinct from considerations for grant of bail---No exceptional circumstances existed for extraordinary indulgence of Supreme Court to deprive the accused of their liberty which had not been misused by them after passing of the impugned order by High Court---No question of law of public importance was spelt out in the circumstances for cancellation of bail--Leave to appeal was refused accordingly.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 ref.

Akhlaq Ahmed Siddiqui for Petitioner (in both petitions).

Nemo for Respondents.

Date of hearing: 7th July, 2004.

2005 S C M R 1293

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

MAVRA ARSHAD---Petitioner

versus

Sheikh EHSAN GHANI---Respondent

Crl. Org. No.16-L of 2002 in C.P.L.A. No.965-L of 2002, decided on 25th February, 2003.

(Petition for taking action for violating commitment made by the respondent in C.P.L.A. No.965-L of 2002).

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

----S. 5, Sched. & S.13---Constitution of Pakistan (1973), Arts.185(3) & 204---Suit for past and future maintenance by minor daughter against her father and paternal-grandfather---Courts below concurrently decreed the suit---Supreme Court disposed of appeal by father and grandfather on their statements undertaking to pay Rs.1,00,000 to minor on or before 15-5-2002 and Rs.25,000 on 10th of each month towards satisfaction of arrears and future maintenance---Minor on non-payment of Rs.25,000 to her on 10-6-2002 filed contempt application seeking compliance of such undertaking by the judgment-debtors (father and grandfather)---Judgment-debtors appeared before Supreme Court, but did not pay any amount to the minor---Supreme Court directed Executing Court to proceed to execute decree and ensure recovery of arrears of maintenance from the judgment-debtors within six months.

Petitioner in person through her mother Mst. Shazia Naz.

Ch. Naseer Ahmad Bhutta, Advocate Supreme Court for Respondent.

Date of hearing: 25th February, 2003.

2005 S C M R 1295

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Falak Sher, JJ

Dr. IJAZ AHMAD---Petitioner

Versus

Mst. NASREEN AKHTAR and others---Respondents

Civil Petition No.1461-L of 2002, decided on 6th May, 2004.

(On appeal from the judgment dated 2-4-2002 of the Lahore High Court, Lahore passed in Civil Revision No.2002/D of 1996).

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Arts.84 & 145---Civil Procedure Code (V of 1908), S.115---Constitution of Pakistan (1973), Art.185(3)---Declaratory suit---Judgment at variance---Comparison of signatures---Power of High Court in exercise of revisional jurisdiction---Failure to confront signatures on disputed We-deed-Plaintiff claimed to be owner in possession of suit-land on the basis of registered sale-deed executed in her favour by the owners---Executant was co-owner as well as general attorney of the remaining owners---One of the marginal witnesses and scribe of the sale-deed supported the execution of sale-deed in favour of plaintiff---Judgment and decree passed by the Trial Court, whereby suit was dismissed, was set aside by Appellate Court and the suit was decreed---High Court in exercise of revisional jurisdiction maintained the judgment and decree passed by Appellate Court---Plea raised by the defendant was that the signatures on the disputed sale-deed were not confronted to the executant during evidence---Validity---High Court personally examined the signatures of executant on sale-deed and compared the same with the admitted signatures of the executant and found the same to be of the executant---As the executant had not denied his signatures on the sale-deed, therefore, there was no need to put the same to the executant by plaintiff in view of the provisions of Art.145 of Qanun-e-Shahadat Order, 1984---Defendant could not show any infirmity, legal or factual, in the judgment or the reasons which had led the High Court in reaching the conclusions---Judgment passed by High Court was not open to any exception---Leave to appeal was refused.

Jehangir A. Jhoja, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 6th May, 2004.

2005 S C M R 1297

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

MUHAMMAD HUSSAIN---Petitioner

Versus

WALI MUHAMMAD and others---Respondents

Civil Petition for Leave to Appeal No.2182/L of 1999, decided on 10th January, 2003.

(On appeal from the judgment dated 18-10-1999 of the Lahore High Court, Lahore, passed in Writ Petition No.3597 of 1984).

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

----Ss. 10 & 30---Constitution of Pakistan (1973), Art.185(3)---Lessee under temporary cultivation scheme---Conferment of proprietary rights upon such lessee (respondent) on promulgation of Notification dated 3-9-1979---Collector set aside such order on objection of petitioner---Additional Commissioner accepted appeal of respondent, but Board of Revenue accepted revision filed by petitioner---High Court in Constitutional petition set aside order of Board of Revenue---Validity---Respondent being lessee of disputed land had got better claim over proprietary rights as compared to the petitioner---Impugned judgment did not suffer from any illegality---Supreme Court dismissed petition and refused leave to appeal.

Ch. Muhammad Anwar Khan, Advocate Supreme Court for Petitioner.

Muhammad Ashraf Wahla, Advocate Supreme Court for Respondent No.1.

Javed Iqbal, Superintendent Litigation for Respondent No.3.

Muhammad Ashraf, Naib Tehsildar for Respondent No.4.

Date of hearing: 10th January, 2003.

2005 S C M R 1299

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJ

MALIR CANTT. BOARD---Petitioner

Versus

Syed TANVEER ALI---Respondent

Civil Petition No.607-K of 2002, decided on 14th May, 2003.

(On appeal from the order dated 29-3-2002 of High Court of Sindh at Karachi passed in C.P. No.D-319 of 1998).

Provincial Motor Vehicles Ordinance (XIX of 1965)---

----S. 56---Cantonments Act (II of 1924), S.3---Constitution of Pakistan (1973), Art.185(3)---Route permit, issuance of---Provincial Transport Authority-Jurisdiction-Security. of Cantonment area---Cantonment Board restrained respondent to ply his coaches in the Cantonment area despite having valid route permit issued by Provincial Transport Authority---Contention of Cantonment Board was that in view of security of Cantonment area, the respondent had to obtain separate licences for entry in Cantonment area---Such act of the Board was assailed by the respondent before High Court in Constitutional petition which was allowed--Validity---Respondent did not challenge the authority of Cantonment Board for taking necessary measures for safety purposes and such action could always be taken---On one hand, Cantonment Board had taken the plea of security and on the other hand the Board invited tenders for the same route on which the vehicles of the respondent were plying---Under no provision of law, the Cantonment Board was authorized to assume the duties of Provincial Transport Authority, which was the competent authority in transport affairs---Route permit of the respondent was validly issued and the Board had no authority to stop respondents' vehicles---Cantonment area was included within the territorial limits of Province in which it was situated---Nothing material had been brought to substantiate the plea that Cantonment Board was legally competent to undo the act of Provincial Transport Authority---Supreme Court declined to interfere with the judgment passed by High Court---Leave to appeal was refused.

Raja Qureshi Advocate Supreme Court and Suleman Habibullah, Advocate Supreme Court and Advocate-on-Record for Petitioner.

Ain-ud-Din, Advocate Supreme Court and Akhlaq Ahmed Siddiqui Advocate-on-Record for Respondent.

Date of hearing: 14th May, 2003.

2005 S C M R 1302

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

MUHAMMAD ALI---Petitioner

Versus

PROVINCE OF PUNJAB and others---Respondents

Civil Petition No.398-L of 2000, decided on 21st March, 2003.

(For leave to appeal from the judgment dated 9-12-1999 of the Lahore High Court, Multan Bench, passed in R.F.A. No.31 of 1991).

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

----Ss.30 & 36---Specific Relief Act (I of 1877), Ss.42 & 54---Civil Procedure Code (V of 1908), S.9, O.VII, R.11 & O.XXXIX, Rr.1, 2---Constitution of Pakistan (1973), Art.185(3)---Suit for declaration and permanent injunction---Rejection of plaint by Appellate Court while dealing with stay matter---Plaintiff as lessee under Temporary Cultivation Scheme filed such suit challenging order of Collector refusing to grant him proprietary rights of suit-land---Trial Court refused to grant stay order---Appellate Court in appeal against such order rejected plaint under O.VII, R.11, C.P.C., on the ground that jurisdiction of Civil Court was barred by S.36 of Colonization of Government Land (Punjab) Act, 1912---High Court dismissed appeal against order of rejection of plaint---Contention of plaintiff was that Appellate Court while dealing with stay matter could not reject plaint after three years of institution of suit---Validity---Plaintiff had not availed statutory remedies of appeal and revision before Commissioner and Board of Revenue respectively against order of Collector---Plaint did not disclose that order of Collector was illegal or beyond his powers or suffered from any jurisdictional defect so as to be amenable to jurisdiction of Civil Court---High Court had for valid reason not remanded case on question of rejection of plaint independently of stay matter in peculiar facts and circumstances of the case---Supreme Court dismissed petition.

Abdul Rab and others v. Wali Muhammad and others 1980 SCMR 139 and Bashir Ahmad and others v. Manzoor Ahmad and others 1987 SCMR 1620 rel.

Sh. Maqbool Ahmed, Advocate Supreme Court and Malik Rehmat Khan Awan, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 21st March, 2003.

2005 S C M R 1305

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Actg. C.J. Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

IRSHAD MUHAMMAD---Petitioner

Versus

MUHAMMAD BAKHSH alias KALI---Respondent

Criminal Petition No.533-L of 2003, decided on 25th January, 2005.

(On appeal from judgment dated 26-6-2003 of the Lahore High Court, Multan Bench, passed in Criminal Appeal No.219 of 1999, Criminal Revision No.137 of 1999 and Murder Reference No.372 of 1999).

Penal Code (XLV of 1860)---

----S. 302/34---Constitution. of Pakistan (1973), Art.185(3)---Appeal against acquittal---High Court, after taking into consideration and discussing the prosecution evidence, had formed an opinion in favour of accused without omitting anything---Acquittal of accused did not call for any interference in circumstances---Leave to appeal was declined to complainant by Supreme Court accordingly.

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

Ghulam Sabir, Advocate Supreme Court and Mehmoodul Islam, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 25th January, 2005.

2005 S C M R 1306

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

GHULAM MUHAMMAD and others---Petitioners

versus

MEMBER (COLONIES) and others---Respondents

C.P.L. As. Nos.3885-L, 3886-L, 3887-L, 3888-L, 3889-L, 3890-L, 3891-L and 4107-L of 2002, decided on 3rd March, 2003.

(On appeal from the consolidated judgment dated 5-9-2002 of the Lahore High Court, Lahore passed in W.Ps. Nos.3074, 3077, 1599, 1600, 1601, 1606, 1610 and 3078 of 1996).

Land Acquisition---

----Constitution of Pakistan (1973), Art. 185(3)---Factual controversy---Determination---Grievance of petitioners was that after acquisition of their land, they were not provided with alternate land---District Collector had annulled the entitlement of the petitioners on the ground that they did not qualify for the grant of alternate lands as they did not satisfy the criterion laid down for the purpose---Factual determination by District Collector was confirmed by Board of Revenue through its revisional orders finding that in most of the cases fraud had been committed by deceitfully forging the relevant documents changing the classification of the acquired land---Validity---Supreme Court declined to take any exception to the facts as found by District Collector which were confirmed by Board of Revenue---Leave to appeal was refused.

Malik Noor Muhammad Awan, Advocate Supreme Court with Walayat Umar, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 3rd March, 2002.

2005 S C M R 1308

[Supreme Court of Pakistan]

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

COLLECTOR, SALES TAX AND CENTRAL EXCISE (WEST), KARACHI---Petitioner

Versus

Messrs AMSONS TEXTILE MILLS, KARACHI---Respondent

Civil Petition No.493-K of 2002, decided on 24th July, 2002.

(On appeal from the judgment dated 14-3-2002 in Sales Tax Appeal No.137 of 2000 passed by the High Court of Sindh, Karachi).

Sales Tax Act (VII of 1990)---

----Ss. 7, 33, 34 & 36---Sales Tax (Processed Fabrics) Rules, 1995---Notification S.R.O.1185(I)/97, dated, 20-11-1997---Constitution of Pakistan (1973), Art.185 (3)---Sales tax/additional tax, recovery of---Show-cause notice---Trading Association and Government remained in negotiation and delayed the issuance of notification---Show-cause notice issued to the respondents was set aside by Sales Tax Appellate Tribunal on the ground that the Notification S.R.O.1185(I)/97, dated', 20-11-1997, was issued in furtherance of newly-amended law for compliance of the parties who were liable for payment of duties and taxes---Sales Tax Appellate Tribunal further found that the Authorities could not take a roundabout and inflict the taxpayer for that period which was consumed in negotiation---Order passed by Sales Tax Appellate Tribunal was maintained by High Court in exercise of appellate jurisdiction---Sales Tax Appellate Tribunal had given cogent and valid reasons in arriving at the conclusion and no other conclusion could have been drawn in view of the clear language of notification---Supreme Court declined to take any exception to the judgment passed by High Court---No legal or factual infirmity in the order having been pointed out and no substantial question of law of public importance being involved within the purview of Art.185 (3) of the Constitution, leave to appeal was refused.

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

M. Farid, Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Respondent.

Date of hearing: 24th July, 2002.

2005 S C M R 1312

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

NIAZ MUHAMMAD---Petitioner

Versus

KASHMIR KHAN and others---Respondents

C.P.L.A. No.1289-L of 2000, decided on 2nd April, 2003.

(On appeal from the order dated 3-4-2000 passed by the Lahore High Court, Multan Bench in Writ Petition No.6464 of 1996).

Specific Relief Act (I of 1877)---

----Ss. 12 & 42---Suit for specific performance of agreement to sell and suit for declaration by two different plaintiffs against same vendor respecting same land---Suit for specific performance of agreement to sell filed by party "A" on 10-2-1981 was decreed on 14-2-1981 on basis of conceding written statement filed by attorney of vendor---Party "B" claiming to be owner in possession of same land filed suit against vendor on 28-2-1980, which was ultimately decreed by Appellate Court on 24-1-1982 founding that complete sale had already taken place---Party "A" had not mentioned such fact in suit filed by him on 10-2-1981---Declaratory suit was, held, to be prior in time, which fact demonstrated that transaction of sale in favour of Party "B" had already taken place prior to appearance of party "A" on the scene.

Muhammad Aslam Chaudhry, Advocate-on-Record, for Petitioner.

Respondent No.1 in person.

Date of hearing: 2nd April, 2003.

2005 S C M R 1314

[Supreme Court of Pakistan]

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

HAMZA BOARD MILLS LIMITED and 7 others---Appellants

Versus

HABIB BANK LIMITED and another---Respondents

Civil Appeal No.511 of 1995, decided on 22nd October, 2001.

(On appeal from the judgment dated 3-5-1995 of Lahore High Court, passed in C.O. No.133 of 1994).

Companies Ordinance (XLVII of 1984)---

----Ss. 305 & 309---Winding up of company---Liability of bank, adjustment of---Restoring the pervious status of Company---Company was ordered to be wound up as the liabilities of Bank were not paid---Company had adjusted all its liabilities with the Bank and from the date when the winding up order was passed, the financial rights and obligations of the Company remained the same as were on that date---Plea raised by the Company was that the winding up order of the company was liable to be set aside and the Company was entitled to function as it was doing before---Validity---Nothing was on record to substantiate the plea raised by the Company and it was not clear whether other creditors of the Company would be affected or not by restoring the previous status of the Company---Order of winding up of the Company passed by Company Judge was set aside by Supreme Court and the matter was remanded to High Court for decision afresh on merits regarding restoring the previous status of the Company or otherwise--Appeal was disposed of accordingly.

Ashtar Ausaf Ali, Advocate Supreme Court for Appellants.

K.M.A. Samdani, Senior Advocate Supreme Court for Respondent No.1.

Date of hearing: 22nd October, 2001.

2005 S C M R 1315

[Supreme Court of Pakistan]

Present: Falak Sher and Karamat Nazir Bhandari, JJ

RAZA MUNIR and another---Petitioners

Versus

Mst. SARDAR BIBI and 3 others---Respondents

Civil Petition No.738-L of 2001, decided on 1st January, 2003.

(On appeal from the judgment dated 2-2-2001 of the Lahore High Court, Lahore passed in Civil Revision No.2784 of 1989).

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

----Ss. 203, 206, 207 & 208---Registration Act (XVI of 1908), S.18---Constitution of Pakistan (1973), Art.185(3)---Registered power of attorney, cancellation of---Supreme Court granted leave to appeal to consider question, whether authority of attorney could only be cancelled by registered deed as same was conferred by registered deed.

Mrs. Sarwat Siddique and others v. Muhammad Yousaf 1985 CLC 2831 ref.

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

----Ss. 186, 203, 206, 207 & 208---Registration Act (XVI of 1908), S.18---Cancellation of registered power of attorney by principal not by a registered deed, but by issuing notice to attorney and proclamation in newspaper---Sale of principal's property by attorney after cancellation of power of attorney in such manner---Validity---Purchaser had not denied factum of revocation in such manner---Proclamation in newspaper had put the public-at-large on guard, thus, purchaser in all fairness ought to have been more vigilant---Purchaser had neither pleaded nor record showed that attorney, after execution of sale-deed, had colluded with principal---Power of attorney, held, stood cancelled in such manner and that sale made thereafter was illegal and without authority.

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

----O. XIII, R.4---Qanun-e-Shahadat (10 of 1984), Arts.2(c) & 113---Document once admitted in evidence and brought on record---Effect---Contents of such document could be read and given effect to by Court even in absence of a plea by a party to such effect.

Ch. Muhammad Afzal Wahla, Advocate Supreme Court with M.A. Qureshi, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing; 1st January, 2003.

2005 S C M R 1318

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Actg. C.J. Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

GHULAM and another---Petitioners

versus

MURTAZA and another---Respondents

Criminal Petition No.721-L of 2001 and J.P. No.193 of 2001, decided on 25th January, 2005.

(On appeal from judgment, dated 20-9-2001 of the Lahore High Court, Lahore, passed in Criminal Appeal No.579 of 1999, Criminal Revision No.546 of 1999).

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Notice issued to acquitted accused---Evidence furnished against the acquitted accused by the prosecution had remained uncorroborated---High Court, therefore, was quite justified in acquitting the said accused for the sake of safe administration of justice and following the rule of caution after extending benefit of doubt to him---Petition was dismissed accordingly.

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Ocular account of occurrence was corroborated by medical evidence as well as by the recovery of incriminating articles---Motive as set up in the F.I.R. had been proved against the accused---Prosecution had successfully established the guilt of accused---Impugned judgment did not call for any interference---Jail petition was dismissed accordingly.

Asghar Ali Advocate Supreme Court for Petitioners (in Criminal Petition 721/L of 2001).

Muhammad Asghar Khan Rokhari, Advocate Supreme Court for Respondents (in Criminal Petition No.721 /L of 2001).

Raja Abdur Rehman, A.A.-G. Punjab the State (in Criminal Petition 721-L of 2001).

Date of hearing: 25th January, 2005.

2005 S C M R 1320

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

HABIB ULLAH---Petitioner

versus

LAND ACQUISITION COLLECTOR and others---Respondents

Civil Petition for Leave to Appeal No.753/L of 2000, decided on 3rd March, 2003.

(On appeal from the judgment dated 20-2-2000 of the Lahore High Court, Lahore, passed in I.C.A. No.971 of 2000).

Land Acquisition Act (I of 1894)---

---Ss. 17(3) & 18---Constitution of Pakistan (1973), Art. 185(3)---Award in respect of orchards---Determination of compensation, a question of fact---Land owners being dissatisfied with the award in respect of orchards, filed Constitutional petition and Intra Court Appeal, which were dismissed by High Court---Validity---Petitioners had statutory remedy of reference against the award, provided under S.18 of Land Acquisition Act, 1894---Determination of compensation for trees was a question of fact which could not be re-determined in exercise of Constitutional jurisdiction---Award having already been announced, the provision of S.17(3) of Land Acquisition Act, 1894, was not violated---Petitioners failed to point out any illegality or legal infirmity in the judgment warranting interference by Supreme Court---Leave to appeal was refused.

Dr. A. Basit, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 3rd March, 2003.

2005 S C M R 1322

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

S.M. AFZAL-UR-REHMAN---Petitioner

versus

FEDERATION OF PAKISTAN and others---Respondents

C.P.L.A. No.883-K of 20027 decided on 9th February, 2004.

(On appeal from judgment of the Federal Service Tribunal dated 7-6-2002 passed in Appeal No.107(K) (CS) of 2002).

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art. 212 (3)---Dismissal from service---Time-barred departmental representation---Civil servant was dismissed from service and his departmental representation was dismissed being barred by 185 days---Appeal before Service Tribunal was also dismissed---Plea raised by the civil servant was that letter of removal from service was received by his brother with whom the civil servant was not at good terms---Validity---If a person had been negligent and indolent in prosecuting his remedy before the proper forum, he was not entitled to indulgence of the Court, muchless enlargement of time by 185 days, more particularly, when his departmental representation was not entertained by the Department itself---By not exercising discretion in favour of civil servant, the Tribunal neither acted illegally nor unreasonably---No strong ground was made for interfering with the exercise of discretion by the Tribunal which was neither unfair nor illegal Or unreasonable---Once departmental appeal had been rejected as barred by time, service appeal would be incompetent, unless for sufficient reasons, Tribunal deemed it fit to condone the delay---Service Tribunal had decided otherwise to which Supreme Court declined to take any exception---No question of law of public importance was spelt out from the circumstances---Leave to appeal was refused.

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

Nemo for Respondents.

Date of hearing: 9th February, 2004.

2005 S C M R 1324

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

ABDUL REHMAN---Petitioner

Versus

Mst. HAMEEDAN BIBI and another---Respondents

C.P.L. As. Nos. 288 and 294-L of 2003, decided on 31st March, 2003.

(On appeal from the consolidated judgment, dated 8-11-2002 passed by the Lahore High Court, Lahore in Civil Revision No.1794 of 2000 and 1793 of 2000).

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Constitution of Pakistan (1973), Art. 185(3)---Declaration of title and recovery of possession---Concurrent findings of facts by the Courts below---Multiplicity of litigation, discouragement of---Plaintiff claimed to be the owner of the suit property and alleged that the defendant was her tenant---Trial Court admitted the ownership of plaintiff over suit property but dismissed the suit---Appellate Court partially allowed the appeal and decreed the suit to the extent of the ownership of the plaintiff while decree of possession was not granted---Appellate Court directed the plaintiff to approach Rent Controller for the recovery of possession---High Court in exercise of revisional jurisdiction maintained the findings of both the Courts below and also granted the decree for the possession of suit property to the plaintiff---Plea raised by the defendant was that the High Court should have left the matter of possession to be decided by Rent Controller---Validity---Matter had been in litigation for more than a decade and it was not just to compel the plaintiff to start a fresh round of litigation and thus encouraging multiplicity of litigation and misery of the parties was not in the best interest of justice especially when Supreme Court was under obligation to do complete justice---Concurrent findings of fact were not the result of any misreading of any evidence available on record---Leave to appeal was refused.

Province of Punjab and another v. Mufti Abdul Ghani PLD 1985 SC 1 rel.

Talat Farooq Sheikh, Advocate Supreme Court for Petitioner.

Tanvir Ahmad, Advocate-on-Record for Respondent No.4.

Date of hearing: 31st March, 2003.

2005 S C M R 1328

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Sardar Muhammad Raza Khan, JJ

MEHR TEXTIL MILLS LTD.---Appellant

versus

INVESTMENT CORPORATION OF PAKISTAN and others---Respondents

Civil Appeal No.650 of 1997 and Civil Petition No.1371 of 1998, decided on 2nd April, 2002.

(On appeal from the judgment/order dated 22-9-1998 and 5-5-1997 passed by Lahore High Court, Rawalpindi Bench and Lahore in Writ Petition No.1835 of 1998 and C.M. No.1186-1 of 1997, respectively).

Companies Ordinance (XLVII of 1984)---

----Ss. 305 & 309---Companies (Court) Rules, 1997, R.76---Winding up of company---Notice, service of---Change of address of registered office of company---Administration of justice---Grievance of appellants was that the notices for winding up of the Company were not served on the changed address of registered office of the Company---Contention of the respondents was that the appellants were duly served through publication in two daily newspapers besides issuing direct notices to the Company as per R.76 of Companies (Court) Rules, 1997---Validity---As pre changed address of the registered office of the Company, notices were required to be sent to it at the Company office by ordinary post and, thereafter, publication in newspapers of the area where the appellants run their business ordinarily---No such notice was served upon the appellants at the changed address---Decisions of the cases on merits were encouraged by the Courts instead of granting or refusing relief to litigants on technical points---Injustice had been caused to appellants by not affording them proper opportunity to defend proceedings of winding up against it---Judgment passed by Companies Judge was set aside and the matter was remanded to Company Judge for decision afresh---Supreme Court specified a date on which the parities would appear before the Company Judge without issuance of fresh notice to them---Appeal was allowed.

Ch. Afrasiab Khan, Advocate Supreme Court and Ch. Akhtar Ali Advocate-on-Record for Petitioner (in C.P. No.1371 of 1998).

Ashtar Ausaf Ali, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant (in C.A. No.650 of 1997).

Nemo for Respondents (in C.P. No.1371 of 1998).

M.A. Zaidi Advocate-on-Record and Hamid Farooq Durrani Advocate Supreme Court for Respondents (in C.A. No.650 of 1997).

Date of hearing: 2nd April, 2002.

2005 S C M R 1330

[Supreme Court of Pakistan]

Present: Javed Iqbal, Tanvir Ahmed Khan and Faqir Muhammad Khokhar, JJ

NIAZ MUHAMMAD---Petitioner

Versus

ABDUL RAZZAK and others---Respondents

Civil Petition for Leave to Appeal No.2873/L of 2001, decided on 4th February, 2003.

(On appeal from the judgment dated 6-6-2001 of the Lahore High Court, Bahawalpur Bench, Bahawalpur, passed in Civil Revision No.160-D of 1989/BWP).

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)---Declaration of title---Mutation of sale, assailing of---Concurrent findings of fact by the Courts below---Suit land was allotted under Grow More Food Scheme to the plaintiff who had sold the same to the defendant---Mutation of sale was entered in the name of defendant---Plaintiff took exception to the mutation on the ground that the sale was a result of fraud and misrepresentation---Witnesses produced by the plaintiff did not advance his case any further---Agreement in favour of defendant wherein he received Rs.5000 was executed by plaintiff himself---Plaintiff appointed a special attorney for the execution of sale deed and had himself submitted application before Collector for permission to sell the disputed property---Revenue Officer recorded the statement of plaintiff and accorded permission on the basis of which disputed mutation was sanctioned---Every thing in that regard was done either by the plaintiff himself or at his instance---All the three Courts below concurrently dismissed the suit filed by plaintiff---Validity---Trial Court and Appellate Court had thoroughly thrashed all the issues involved in the case and High Court had given its own reasons for upholding the same---Leave to appeal was refused.

Tassawar Hussain Qureshi, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

M. Iqbal Khichhi, Advocate Supreme Court with Mahmudul Islam, Advocate-on-Record for Respondents.

Date of hearing: 4th February, 2003.

2005 S C M R 1334

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Actg. C.J. Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

ABID HUSSAIN and another---Petitioners

versus

Mst. GHULAM SADIQAN and another---Respondents

Crl. M.A. No.219-L of 2004 in Criminal Petition No.672-L of 2004 and Criminal Petition No.689-L of 2004, decided on 27th January, 2005.

(On appeal from the order dated 7-9-2004 and 24-11-2004 in Criminal Miscellaneous No.915-H of 2004, passed by Lahore High Court, Lahore).

Penal Code (XLV of 1860)---

----S. 363---Constitution of Pakistan (1973), Art.185(3)---Father of the minors against whom case had been registered was not before the Court---Petitioners were also involved in the ease---Petitioners were at liberty to approach the Trial Court for their release on bail and if such application was moved, the same was directed to be disposed of independently without being influenced in any manner by the impugned order---Petitions were disposed of with the said observation.

Qazi Muhammad Latif, Advocate Supreme Court and A.H. Masood Advocate-on-Record for Petitioners (in both cases).

Nemo for respondents (in both cases).

Date of hearing: 27th January, 2005.

2005 S C M R 1335

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

MUHAMMAD IBRAHIM and others---Petitioners

Versus

MUHAMMAD ISMAIL and others---Respondents

C.P.L.A. No.1048-L of 2000, decided on 2nd April, 2003.

(On appeal from the judgment dated 27-3-2000 passed by the Lahore High Court, Multan Bench in Civil Revision No.999-D of 1995).

Co-sharer---

----Sale by co-sharer out of joint Khata, but not with specific Khasra numbers---Validity---Vendor had only conveyed his interest in joint Khata through sale-deed---Purchaser had, thus, become joint owner along with other Khatadars and he could not lay claim to specific numbers.

Syed Shamim Abbas Bokhari, Advocate Supreme Court with S. Abul Aasim Jafri, Advocate-on-Record for Petitioners.

Ch. Muzammil Khan, Advocate Supreme Court for Respondents.

Date of hearing; 2nd April, 2003.

2005 S C M R 1337

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Humid Ali Mirza and Falak Sher, JJ

DISTRICT EDUCATION OFFICER and others---Petitioners

Versus

Hafiz MUHAMMAD ISHAQ AHMAD NOORI and others---Respondents

Civil Petitions Nos.1499-L to 1514-L of 2004, decided on 15h July, 2004.

(On appeal against the judgment dated 29-1-2004 passed by the Punjab Service Tribunal, Lahore in Appeals Nos.242, 287, 587, 1014, 1015, 1016, 1326, 1327, 1397, 1476, 1492, 1501, 1502, 1545, 1938 and 2119 of 2003).

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

----S. 4---Constitution of Pakistan (1973), Art.212 (3)---Withdrawal of appointment letters---Failure to consider each case independently---Non­compliance of order passed by Supreme Court---Civil servants were appointed as school teachers but by issuing a general order, their appointments were cancelled on the ground of irregularities committed at the time of' their appointments---Supreme Court directed the authorities to consider each case independently and then to decide cases of the civil servants---Authorities passed stereotyped orders in post-remand proceedings, and maintained their earlier decision---Appeals filed by the civil servants were once again accepted by Service Tribunal and the cases were again remanded to the Authorities for decision afresh---Plea raised by the Authorities was that the cases were independently considered and Service Tribunal had no authority to remand the cases for conducting regular inquiry---Validity---In post-remand orders, except change of names and numbers etc. in all substance, the orders in all the cases were identical meaning thereby that the competent authority had failed to apply its mind independently on the facts of each case---Service Tribunal was right in directing the competent authority to consider the cases of civil servants by conducting a regular inquiry---Order passed by the Tribunal being just and proper and in accordance with the earlier order of Supreme Court, no interference was called for by Supreme Court--Leave to appeal was refused.

Miss Yasmin Sehgal, A.A.-G., Muhammad Riaz Lone, Advocate Supreme Court and Rao M. Yousaf Khan, Advocate-on-Record (absent) for Petitioners.

Irshad Ahmed Qureshi, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for respondents (in C.P. No.1499-L of 2004).

Hafiz Tariq Naseem, Advocate Supreme Court for Respondents (in C.P. No. 1500-L of 2004).

Date of hearing: 15th July, 2004.

2005 S C M R 1340

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

THE STATE through Collector of Customs---Petitioner

versus

MAEUDULELLE MANDLENKOSI JEROM @ AYUBA---Respondent

Civil Petitions for Leave to Appeal Nos.1263/L and 1264/L, decided on 31st March, 2003

(On appeal from the judgment dated 13-4-2000 of the Lahore High Court, Lahore, passed in Writ Petitions Nos.5291 of 5292 of 2000).

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

----Ss. 9-C & 71---Customs Act (IV of 1969), Ss.16/32/139/156(1)(8)(70)/157/178---Constitution of Pakistan (1973), Arts. 13, 185(3) & 199---Quashing of proceedings before Sessions Judge---Challan against accused in both cases were submitted before Special Judge Customs, who convicted and sentenced accused with direction to submit another challan under Control of Narcotic Substances Act, 1997 before Sessions Judge---High Court in Constitutional petition declared such direction for second trial before Sessions Judge to be violative of Art.13 of the Constitution---Validity---Accused after serving sentence awarded by Special Judge Customs had been released from Jail and being foreign national had left the country three years ago---Considering case of petitioner in such circumstances would be an exercise in futility---Supreme Court dismissed petition reserving right of petitioner to approach Supreme Court in appropriate proceeding involving similar question well within time.

K.M. Virk, Advocate Supreme Court with Mahmudul Islam, Advocate-on-Record for Petitioner.

Ch. Muhammad Afzal, Superintendent, Central Jail, Lahore for Respondents.

Date of hearing: 31st March, 2003.

2005 S C M R 1342

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Sardar Muhammad Raza Khan, JJ

MUHAMMAD AKRAM---Petitioner

versus

ABDUL WAHEED and 3 others---Respondents

Criminal Petition for Leave to Appeal No.699-L of 2003, decided on 6th July, 2004.

(On appeal from order dated 24-1-2003, passed by the Lahore High Court, Multan Bench, Multan, in Writ Petition No.363 of 2003).

Criminal Procedure Code (V of 1898)---

----Ss. 249-A & 345 (2)---Penal Code (XLV of 1860), Ss.324/452---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Compounding of offence---Procedure---Compromise during bail proceedings---During trial, accused filed application under S.249-A, Cr.P.C. on the ground that the complainant had executed compromise during pendency of pre-arrest bail to the accused--- Application was dismissed by the Trial Court for the reason that the complainant did not execute any compromise before the Trial Court---Order passed by the Trial Court was maintained by High Court---Validity---High Court had rightly held that under S.345 (2) Cr.P.C., offences mentioned in first two columns given in the section might, with the permission of the Court before whom any prosecution for such offence was pending, be compounded by the persons mentioned in the third column given thereunder---Compromise was effected during pendency of petition for bail before arrest, when prosecution of the offence was not pending before the Trial Court---Such compromise could not be made basis for acquittal of the accused as under S.345(2) Cr.P.C., it was the Trial Court which had to satisfy itself and grant permission to compound the offence being tried by it---Judgment passed by High Court was well-reasoned and was entirely in accordance with law, which did not call for any interference by Supreme Court---Leave to appeal was refused.

Hasnat Ahmad Khan, Advocate Supreme Court with Faiz-ur-Rehman, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 6th July, 2004.

2005 S C M R 1344

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

MUHAMMAD LATIF---Petitioner

versus

2005 S C M R 1347

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Faqir Muhammad Khokhar and Muhammad Javed Buttar, JJ

MUHAMMAD ZULQARNAIN---Petitioner

Versus

SHER MUHAMMAD and others---Respondents

Criminal Petition No.509-L of 2002, decided on 22nd December, 2004.

(On appeal against the judgment, dated 27-5-2002 passed by the Lahore High Court, Lahore in Criminal Revision No.466, Criminal Appeal No.918 and Criminal Appeal No.959 of 2000).

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

-------S. 302(b)—Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---Accused, according to F.I.R. were armed with .12 bore guns, but no recovery was effected from their possession---Delay in registration of F.I.R. was not explained---Medical evidence had been found contradictory to ocular testimony by the High Court---High Court while acquitting the accused had neither misread the prosecution evidence nor left any piece thereof out of consideration---Impugned judgment did not call for any interference---Leave to appeal was declined to the complainant by Supreme Court accordingly.

Abid Saqi, Advocate Supreme Court for Petitioner.

Muhammad Riaz Hussain Basra, Advocate Supreme Court and Muhammad Aslam Ch., Advocate-on-Record for Respondents.

Date of hearing: 22nd December, 2004.

2005 S C M R 1349

[Supreme Court of Pakistan]

Present: Javed Iqbal and Karamat Nazir Bhandari, JJ

RAZZAK AHMED MALIK---Petitioner

Versus

GOVERNMENT OF PUNJAB and another---Respondents

Civil Petition No.3178-L of 2001, decided on 6th June, 2003.

(On appeal from the judgment dated 24-7-2001 of the Punjab Service Tribunal Lahore, passed in Appeal No.406 of 2000).

(a) Civil service---------

----Promotion on current/acting charge basis---Validity---Promotion on

such basis cannot be equated to that of regular promotion---Promotion on acting charge basis can be made in exigency of service, but same should not be for an indefinite period and does not confer any right of regular promotion on concerned civil servant.

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

-----S. 4---Appeal or representation---Limitation---No appellant has unfettered choice to file a representation/appeal irrespective of time limit.

1998 SCMR 882 fol.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 6th June, 2003.

2005 S C M R 1352

[Supreme Court of Pakistan]

Present: Falak Sher and Karamat Nazir Bhandari, JJ

COLLECTOR OF CUSTOMS (APPRAISEMENT) CUSTOM HOUSE, LAHORE and others---Petitioners

Versus

Messrs M. RAMZAN SEWING MACHINES COMPANY and others---Respondents

Civil Petitions Nos.4255 to 4258-L of 2002, decided on 4th March, 2003.

(On appeal from the judgment dated 24-10-2002 passed by the Lahore High Court, Lahore in C.As. Nos.319, 320, 321, 322 of 2001).

Sales Tax Act (VII of 1990)-------

------S. 13 & Sixth Sched. Item No.44---S.R.O. 582(I)/98, dated 12-6-1998, para.(a)---S.R.O. 987(I)/99, dated 30-8-1999, para.(a)---Exemption from sales tax on plant and machinery---S.R.O.582(I)/98, para.(a) and S.R.O.987(I)/99, para(a)---Distinction---S.R.O.582(I)/98, para.(a) did not make any distinction qua commercial and industrial importer envisaging three qualifying riders for availing exemption-goods should be a plant and machinery; operatable by power of any description; and to be used for manufacture of taxable goods by registered persons (who need not be importer thereof)---S.R.O.987(I)/99 in para.(a) substituted expression "the" by "that" restricting exemption to imported or locally purchased plant and machinery to be used by manufacture of taxable goods by that registered person.

A. Karim Malik, Senior Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Petitioners.

Ahmer Bilal Sufi, Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record for Respondents.

Date of hearing: 4th March, 2003.

2005 S C M R 1355

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Sardar Muhammad Raza Khan, JJ

Syed ZULFIQAR HUSSAIN SHAH---Petitioner

Versus

CHIEF ENGINEER IRRIGATION, FAISALABAD ZONE, FAISALABAD and another---Respondents

Civil Petition for Leave to Appeal No.627-L of 2003, decided on 5th July, 2004.

(On appeal from judgment, dated 16-12-2002, passed by the Punjab Service Tribunal, Lahore in Appeal No.1758 of 1997).

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

----S. 4---Constitution of Pakistan (1973), Art.212 (3)---Absence without leave---Loss of Government property---Recovery of such loss---Civil servant remained absent from his duty for a long time without obtaining leave as well as without handing over the charge---In absence of the civil servant, the store in his charge was checked and found deficient to the extent of Rs.4,18,703---Competent authority found the civil servant guilty of loss and imposed penalty of recovery of missing store articles---Departmental appeal as well as appeal before Service Tribunal were dismissed---Validity---Inquiry officer after holding inquiry rightly found the civil servant guilty to the effect that due to his negligence, Government exchequer suffered a loss of Rs.4,18,703---Charge against the civil servant was proved because the authority unlocked the store with the help of Magistrate, staff of police station concerned and departmental officials---List of available store was prepared in presence of the officials---Civil servant had intentionally caused loss to Government and he was rightly found guilty and was ordered to pay cost of missing items---Service Tribunal had dealt with each and every aspect of the case and there was no misreading or non-reading of the material or misconstruction of law of general public---No substantial question of law of general public importance as envisaged under Art.212 (3) of the Constitution was involved in the case---Leave to appeal was refused.

Hassan Ahmad Khan Kanwar, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 5th July, 2004.

2005 S C M R 1358

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

MUHAMMAD YAHYA---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.209-L of 2002, decided on 25th February, 2003.

(On appeal from the judgment dated 12-2-2002 of the Lahore High Court, Lahore, passed in Cr.A. No.1667 of 2000).

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

----S. 302---Constitution of Pakistan (1973), Art. 185(3)---Evidence on record had not been appreciated in its true perspective which had resulted in serious miscarriage of justice---No specific role was assigned to accused---Co-accused had been acquitted on the same evidence---Ocular testimony was contradictory---Medical evidence was in conflict with ocular account---Accused was found innocent by all the Investigating Officers in different investigations---Leave to appeal was granted to accused by Supreme Court for reappraisal of entire evidence in order to dilate upon and decide the aforesaid contentions.

Akhtar Masood Khan, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record (absent) for Petitioner.

A.H. Masood, Advocate Supreme Court for Respondent.

Date of hearing: 25th February, 2003.

2005 S C M R 1361

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Sardar Muhammad Raza Khan, JJ

TEHSIL MUNICIPAL ADMINISTRATION and another---Petitioners

Versus

CHAUDHRY & CO. through Farhat Mehmood Bhalli and others---Respondents

Civil Petition No.2170-L of 2004, decided on 5th July, 2004.

(On appeal from the judgment, dated 24-6-2004 passed by the Lahore High Court, Lahore in Writ Petition No.9460 of 2004).

(a) Punjab Local Government (Auction of Collection Rights) Rules, 2003-----

----R. 11---Constitution of Pakistan (1973), Art.185(3)---Cancellation of auction---Locus standi---Principle---Re-auction at the objection of unregistered person---Effect---Stranger to bid who also was unregistered, had no locus standi to make interference and should not have even been heard, muchless ordering fresh auction at his instance.

(b) Punjab Local Government (Auction of Collection Rights) Rules, 2003---

----R. 10 (as amended by Notification No.SOV(Ig)5-23/2003, dated 20-10-2003)---Cancellation of auction---Pre-condition---Amendment in R.10 of Punjab Local Government (Auction of Collection Rights) Rules, 2003, suggests that auction can be cancelled only if same failed to fetch a bid equal to or above the reserve price.

(c) Punjab Local Government (Auction of Collection Rights) Rules, 2003---

----Rr. 10 & 11---Constitution of Pakistan (1973), Art.185(3)---Auction of collection rights---Non-confirmation of auction of highest bidder---Increase of bid by non-registered person---Reserve price fixed for auction was Rs.3,70,40,786 whereas highest bid of respondent was Rs.4,87,00,000---Bid of the respondent was not confirmed by Union Council because an unregistered person offered Rs.5,12,00,000---Respondent being highest bidder assailed the act of Union Council in Constitutional petition which was accepted by High Court---Plea raised by the Council was that it was the prerogative of the Council to cancel the auction which prerogative had rightly been exercised and hence should not have been interfered with by High Court---Validity---Bid of respondent was almost Rs.1,17,00,000 higher than the reserve price which was quite substantial amount---Rejection of such bid and cancellation of auction, therefore, seemed to be mala fide as well as motivated---Council had to exercise its power within the given rules and regulations juxtaposed with the circumstances of the case---No reason was available under the rules to cancel the auction, the Council did so because of the intervention of the unregistered person and the mala fide crept in, the same was rightly set at naught by High Court---Supreme Court declined to interfere with the judgment passed by High Court---Leave to appeal was refused.

Rana Nasrullah Khan, Advocate Supreme Court with Haji Muhammad Rafi Siddique, Advocate-on-Record for Petitioners.

M. Ahsan Bhoon, Advocate Supreme Court with Ch. Muhammad Khan Mehtab, Advocate Supreme Court for Respondents.

Date of hearing: 5th July, 2004.

2005 S C M R 1364

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

ABDUL REHMAN and others---Petitioners

Versus

MAHAR BAKHSH and others---Respondents

Civil Petition for Leave to Appeal No.1761/L of 2000, decided on 11th April, 2003

(On appeal from the judgment dated 9-5-2000 of the Lahore High Court, Multan Bench, Multan, passed in R.S.A. No.40 of 1996).

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

----S. 13---Pre-emption suit---Talabs, performance of---Pre-emptor pleaded to have acquired knowledge of sale in September, 1991---Certified copy of sale-deed exhibited in evidence by pre-emptor was issued on 10-8-1991---Such fact would be sufficient to assume That pre-emptor was not only aware of sale, but was in possession of its certified copy on 10-8-1991---Pleadings and evidence of pre-emptor that he had acquired knowledge of sale somewhere in September, 1991 was, thus, false---Pre-emptor was non-suited on ground of not having made Talabs as required by S.13 of the Punjab Pre-emption Act, 1991.

Sardar Nazar Hussain Dogar, Advocate Supreme Court with Ch. Mehdi than Mehtab, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 11th April, 2003.

2005 S C M R 1366

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Hamid Ali Mirza and Falak Sher, JJ

GHULAM SARWAR---Petitioner

Versus

FIDA HUSSAIN and 2 others---Respondents

Criminal Petition No.260-L of 2002, decided on 14th July, 2004.

(On appeal from the judgment dated 14-3-2002 passed by the Lahore High Court, Multan Bench in Criminal Appeal No.598 of 2001).

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

----S. 302/34---Constitution of Pakistan (1973), Art.185(3)---Re­appraisal of evidence---Cause of death, failure to prove---Prosecution case---Inconsistent versions---Occurrence was unseen according to F.I.R and Trial Court convicted the accused persons to life imprisonment---High Court accepted the appeal and the accused were acquitted of the charge---Validity---Complainant had expressed his suspicion in F.I.R about involvement of accused persons in the commission of offence but when he appeared in Trial Court he had changed his version as if he had himself witnessed the incident---Same was the opinion of the other prosecution witnesses---High Court, after scanning the evidence carefully, came to the conclusion that the evidence produced by the prosecution was not trustworthy---High Court had also taken into consideration that no material evidence was available to establish the cause of death of the deceased---Acquittal of accused recorded by High Court warranted no interference---Leave to appeal was refused.

Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 and Sultan Ahmed v. Ghulam Raza and 2 others 1995 SCMR 664 fol.

Arif Chaudhry, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 14th July, 2004.

2005 S C M R 1368

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

Mst. BANDI---Petitioner

Versus

PROVINCE OF PUNJAB and others---Respondents

C.P. No.616-L of 2002, decided on 14th May, 2003.

(On appeal from the judgment dated 16-1-2002 passed by the Lahore High Court, Lahore in Civil Revision No.170 of 1995).

(a) Islamic Law---

----Gift---Gift through attorney---Essentials---Power of attorney in such case must specifically authorize attorney to make a gift of property in favour of specified person.

Mst. Shumal Begum's case 1994 SCMR 818 fol.

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

----S. 115---Constitution of Pakistan (1973), Art.185(3)---Concurrent findings of fact by two Courts below---High Court set aside such findings in exercise of its revisional jurisdiction---Validity---Impugned judgment was not shown to be not warranted by evidence and material available on record---Supreme Court dismissed petition and refused leave to appeal.

Syed Kaleem Ahmad Khurshid, Advocate Supreme Court and Muhammad Ramzan Chaudhry Advocate Supreme Court for Petitioner.

Mian Saeed-ur-Rehman Farrukh, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Respondents.

Date of hearing: 14th May, 2003.

2005 S C M R 1371

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Falak Sher, JJ

ZAFAR IQBAL HAMEED KHAN---Petitioner

Versus

ASHIQ HUSSAIN and 2 others---Respondents

Civil Petition No.2445-L of 2000, decided on 9th May, 2005.

(On appeal from the judgment of the Lahore High Court, Multan Bench dated 29-6-2000 passed in R.S.A. No.118 of 1986).

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

---Art. 185(2) & (3)---Petition for leave to appeal before Supreme Court---Maintainability---Principles---Petition for leave to appeal can be entertained by Supreme Court only in cases which fell outside the purview of Art.185(2) of the Constitution---Such petition is incompetent if judgment or order etc. sought to be impugned, is appealable---Maintainability of petition under Art.185(3) of the Constitution is conditional upon non-availability of a right of appeal under Art.185(2) of the Constitution.

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

----S. 13---West Pakistan Civil Courts Ordinance (II of 1962), S.18---Constitution of Pakistan (1973), Art.185(3)---Appeal to Supreme Court---Value of subject-matter of suit---Determining factor---Suit for pre-emption was decreed by trial Court in favour of pre-emptor and judgment was maintained by First Appellate Court---High Court in exercise of second appeal, set aside the concurrent judgments of both the Courts below---Pre-emptor filed petition for leave to appeal before Supreme Court---Objection was raised that the subject-matter of the suit was more than Rs.50,000, therefore, direct appeal under Art.185(2) of the Constitution was competent and not the petition for leave to appeal---Plea raised by pre-emptor was that under S.18 of West Pakistan Civil Courts Ordinance, 1962, factor determining availability or non-availability of right of appeal was dependent upon value of suit and in the present case value fixed in the suit was Rs.8,694---Validity---Appeals to Supreme Court from judgments etc. of High Court were not governed by S.18 of West Pakistan Civil Court Ordinance, 1962 but ,were regulated by Art.185(2) of the Constitution---Whatever was provided in S.18 of West Pakistan Civil Courts Ordinance, 1962, was irrelevant---Relevant provision to resolve the controversy was Art.185(2)(d) of the Constitution, which declared that value of the subject-matter of dispute was to be the determining factor as against the provisions of S.18 of West Pakistan Civil Courts Ordinance, 1962, which talked of the value of original suit to be guiding factor---Value of subject-matter of dispute being more than Rs.50,000, judgment of High Court could be questioned before Supreme Court only through an appeal under Art.185(2) of the Constitution and petition under Art.185(3) of the Constitution was not competent---Leave to appeal was refused.

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

----Arts. 185(2)(d) & 185(3)---Appeal to Supreme Court---Condonation of delay---Principles---Instead of filing direct appeal before Supreme Court, petition for leave to appeal was filed---Supreme Court found that there should have been a direct appeal under Art.185(2)(d) of the Constitution---Petitioner requested that petition for leave to appeal be converted into appeal and sought condonation of delay---Validity---Supreme Court noticed that laxity shown by it was encouraging negligence and carelessness instead of breeding caution and diligence---Supreme Court considered it neither appropriate nor desirable to continue to show such lenient tolerant treatment to one party at the cost of the other---Provisions of Art.185(2) of the Constitution were couched in simple words which did not admit of any ambiguity and confusion---Party filing petition under Art.185(3) of the Constitution when it had a right to file appeal under Art.185(2)(d) of the Constitution, was negligent---Law favoured only the diligent and not the negligent---Supreme Court declined to convert petition for leave to appeal into appeal and delay was not condoned.

Haji Muhammad Nawaz v. Hussain Shah 1990 SCMR 1621; Chairman N.-W.F.P. Forest Development Corporation and others v. Khurshid Anwar Khan and others 1992 SCMR 1202 and Inayatullah Khan v. Obaidullah Khan and others 1999 SCMR 2702 ref.

Ch. Imdad Ali Khan, Advocate Supreme Court and Tanveer Ahmad, Advocate-on-Record for Petitioner.

Mafoozul Haq Khan, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate-on-Record for Respondents.

Date of hearing: 9th May, 2005.

2005 S C M R 1376

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Falak Sher, JJ

SAFDAR JAMEEL and another---Petitioners

Versus

THE STATE---Respondent

Criminal Petition No.836-L of 2002 and Jail Petition No.109 of 2003, decided on 8th February, 2005.

(On appeal from the judgment dated 4-9-2002 passed by Lahore High Court, Lahore in Criminal Appeal No.1183 of 1999).

Penal Code (XLV of 1860)---

----S. 302(b)/34---Constitution of Pakistan (1973), Art.185(3)---Presence of eye-witnesses at the scene of occurrence was established who had no enmity with the accused and had no motive for their false implication---Ocular testimony was supported by medical report---Crime-empties secured from the spot had. matched with the respective weapons of offence recovered from the accused---Accused being already known to the complainant party and their names having been mentioned in the F.I.R., holding of identification parade was not necessary---Sending of crime-empties to the Forensic Science Laboratory after a lapse of six days had not adversely affected the prosecution case which was supported by ocular testimony as well as strong pieces of circumstantial evidence---No mitigating circumstance was available in favour of accused for awarding lesser punishment---Accused having no case on merits, delay of 215 days in filing the petitions was not condoned particularly when the grounds of condonation were , also weak and frivolous---Leave to appeal was consequently refused to accused on merits as well as on limitation---Petitions were dismissed accordingly.

Naeem-ul-Hassan Shirazi Advocate Supreme Court for Petitioners (in Criminal Petition No.836 of 2002).

M. Zaman Bhatti, Advocate Supreme Court for Petitioners (in Jail Petition No.109 of 2003).

Nemo for Respondent.

Date of hearing: 8th February, 2005.

2005 S C M R 1380

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Falak Sher, JJ

MEMBER, BOARD OF REVENUE/CHIEF SETTLEMENT COMMISSIONER, PUNJAB, LAHORE---Petitioners

Versus

KHUDA BAKHSH and others---Respondents

Civil Petitions Nos.2972-L to 2989-L of 2000, decided on 11th May, 2005.

(On appeal from the judgment dated 13-9-2000 of the Lahore High Court, Lahore passed in Writ Petitions Nos.100/R to 117/R of 1999).

Constitution of Pakistan (1973)---

----Arts. 185(3) & 199---Qanun-e-Shahadat (10 of 1984), Art.114---Constitutional petition before High Court---Laches---Administration of justice---Doctrine of estoppel---Applicability---Respondents were allotted land by Settlement Department but the allotment was cancelled after about 15/20 years after their settlement---Respondents being aggrieved of the act of Settlement Authorities invoked the Constitutional jurisdiction of High Court where Advocate-General gave an undertaking on behalf of the Authorities with regard to settlement of respondents---In compliance of the statement of Advocate-General, the Notified Officer allotted alternate lands to respondents---Five years after the allotment of alternate lands to the respondents, Board of Revenue filed Constitutional petitions before High Court assailing the order of Notified Officer whereby the alternate lands were allotted to the respondents---High Court in exercise of Constitutional jurisdiction dismissed the petitions and maintained the order of allotment made by Notified Officer---Validity---Held, it did not lie in the mouth of Board of Revenue/Chief Settlement Commissioner to say that the Notified Officer, who had passed the order pursuant to the entrustment of the matter to him by Board of Revenue/Chief Settlement Commissioner himself in pursuance of the commitment made by their representative before High Court, had acted illegally and without jurisdiction---Order passed by Notified Officer, besides being operating as an estoppel against Board of Revenue, was an order which had done justice to respondents---Superior Courts had always refused to interfere with an action which advanced the cause of justice and which undid a manifest wrong done to a helpless and suffering party---Authorities failed to offer any explanation about the inordinate delay of at least 5 years in approaching High Court---Board of Revenue/Chief Settlement Commissioner was estopped by his own words and conduct from questioning the order of Notified Officer which order had ensured justice to the suffering respondents---Conduct of Authorities in not restoring the original allotments of lands to respondents in pursuance of the order of High Court passed in earlier Constitutional petitions, was contemptuous which operated at least as a factor warranting sympathy and fairplay for respondents---Constitutional petitions filed by Authorities were hit by laches---Supreme Court declined to interfere in the order passed by High Court---Leave to appeal was refused.

Ahmed Awais, Advocate Supreme Court with Mehmood A. Qureshi, Advocate-on-Record for Petitioners.

Dilawar Mehmood, Advocate Supreme Court with Mehmood-ul-Islam, Advocate-on-Record for Respondents.

Dates of hearing: 10th and 11th May, 2005.

2005 S C M R 1385

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C. J., Syed Deedar Hussain Shah and Abdul Hameed Dogar, JJ

MARGHOOB AHMED---Petitioner

Versus

PRESIDENT, NATIONAL BANK OF PAKISTAN and 2 others---Respondents

Civil Petition No.910 of 2002, decided on 8th November, 2004.

(On appeal from the judgment, dated 3-8-2002 of the Federal Service Tribunal, Karachi, passed in Appeal No.1810(K) of 1998).

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

----Ss. 2-A, 4 & 6---National Bank of Pakistan Staff Service Rules, 1980, R.37(h)---Industrial Relations Ordinance (XXIII of 1969), S.25-A---Constitution of Pakistan (1973), Arts. 199 & 212(3)---Employee of National Bank of Pakistan---Dismissal from service---Misconduct, charge of---Filing of departmental appeal on 26-12-1987 against dismissal order dated 1-11-1987---Service of grievance notice upon employer after 503 days and filing of grievance 78 days thereafter---Acceptance of grievance petition by Labour Court, but its dismissal by Labour Tribunal---Disposal of Constitutional petition by High Court on 12-10-1998 for having abated due to insertion of S.2-A in Service Tribunals Act, 1973---Appeal before Service Tribunal filed on 4-11-1998 was dismissed as time-barred---Validity---Section 2-A inserted in Service Tribunals Act, 1973 w.e.f. 10-6-1997 had changed forum of appeal---Appeal required to be filed before Service Tribunal within 90 days as stipulated by S.6 of Act, 1973 had been filed with delay of 488 days and with further delay of 22 days after abatement order passed by High Court---Supreme Court refused leave to appeal.

Suleman Habibullah, Advocate Supreme Court for Petitioner.

Syed Haider Ali Pirzada, Advocate Supreme Court, and Abdul Qadir Khan, Advocate Supreme Court for Respondents.

Date of hearing: 8th November, 2004.

2005 S C M R 1388

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Saiyed Saeed Ashhad, JJ

MUNAWAR HUSSAIN and 2 others---Appellants

Versus

SULTAN AHMAD---Respondent

Civil Appeal No.118 of 2005, decided on 29th April, 2005.

(On appeal from the judgment dated 10-1-2005 passed by the Lahore High Court, Multan Bench, Multan in Regular Second Appeal No.25 of 1986).

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

----S. 5---West Pakistan Civil Courts Ordinance (II of 1962), S.18---Suits Valuation Act (VII of 1887), S.3---Pre-emption suit---Suit valuation---Pecuniary jurisdiction---Plaint showed that plaintiff himself, under S.3, Suits Valuation Act, 1887 had valued his suit for the purpose of jurisdiction at Rs.1,62,979---Such valuation was fixed at thirty times the Land Revenue assessed to the land in dispute, as specifically mentioned by the plaintiff---Plaintiff, while lodging the appeal before the District fudge changed such valuation to Rs.50,000 under the same principle in order only to give jurisdiction to the District Judge and most probably to avoid going to the High Court---Validity---Plaintiff was estopped ,from changing such valuation in order merely to give jurisdiction to the District Judge and the District Judge in turn ought to have consulted the plaint and not the memorandum of appeal, which S.18, West Pakistan Civil Courts Ordinance, 1962 demanded of him---Where the suit concerning land assessed to Land Revenue was involved, the, determining factor was the value of the original suit.

Noor Muhammad v. Mst. Kaneez Fatima PLD 1980 Lah. 471; Bashir v. Wazir Ali 1987 SCMR 978 and Qazi Shamus-ur-Rehman's case 2004 SCMR 1798 distinguished.

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

----S. 5---Suit Valuation Act (VII of 1887), S.3---West Pakistan Civil Courts Ordinance (II of 1962), S.18---Pre-emption suit---Valuation of suit---Determination---Valuation of a suit for pre-emption pertaining to agricultural land was to be fixed at thirty time the Land Revenue assessed to the land in dispute---Under S.18, West Pakistan Civil Courts Ordinance, 1962 pecuniary jurisdiction of the District Judge was always derived from the valuation in the plaint.

(c) Jurisdiction---

----When a Court suffers from want of inherent jurisdiction, no amount of consent or acquiescence in the proceedings can invest such Court with such jurisdiction---No question of waiver or estoppel is attracted in such circumstances.

Muhammad Hussain v. Muhammad Shafi 2004 SCMR 1947 ref.

(d) Jurisdiction-------

---Inherent or pecuniary jurisdiction cannot be conferred on a forum even with the consent or acquiescence of a party---Non-raising of any objection in the circumstances is totally immaterial.

Amir Alam Khan, Advocate Supreme Court with Abdul Ghani, Advocate Supreme Court for Appellants.

Mian Arshad Latif, Advocate Supreme Court for Respondent.

Date of hearing: 29th April, 2005.

2005 S C M R 1392

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ

PAKISTAN STEEL MILLS CORPORATION LTD., KARACHI and another---Petitioners

Versus

EHTESHAMUDDIN QURESHI---Respondent

Civil Petition No.905-K of 2003, decided on 28th April, 2005.

(On appeal from the judgment/order of High Court of Sindh, dated 29-10-2003 passed in H.C.A. 159 of 2000).

(a) Fatal Accidents Act (XIII of 1855)---

----S. 1---Death by rash and negligent driving---Proof---Statement of eye-witness of accident holding bus diver responsible for accident was not challenged in cross-examination--Bus driver while carelessly taking turn on left side without giving indication ran down deceased, who was traveling on motorcycle on his side---Evidence on record clearly .established careless and negligence of bus driver---Suit was decreed in circumstances.

(b) Tort---

---Damages---Driving heavy vehicles on busy roads---Drivers on such roads must take extra care---Carelessness at high speed or low speed would constitute an act of negligence holding driver responsible for damages---Principles.

The general rule is that driver of heavy vehicle on busy roads must take extra care and must not act in a manner which may be dangerous to the life of others. The slightest carelessness of a driver of a heavy vehicle may badly disturb the traffic on the road and bring the serious consequence of a fatal accident. The high speed or fast driving is not only rash and negligent driving rather carelessness even at low speed may also constitute an act of negligence to hold the driver responsible for the damages.

Akhlaq Ahmed Siddique, Advocate-on-Record/Advocate Supreme Court for Petitioners.

Nemo for Respondent.

Date of hearing: 28th April, 2005.

2005 S C M R 1395

[Supreme Court of Pakistan]

Present. Sardar Muhammad Raza Khan and Muhammad Nawaz Abbasi, JJ

MUHAMMAD TARIQ---Petitioner

Versus

ZULFIQAR ALI and others---Respondents

Civil Petition No.299-L of 2005, decided on 19th May, 2005.

(On appeal from the judgment dated 10-2-2005 passed by Lahore High Court, Lahore in E.F.A. No.47 of 2005).

Civil Procedure Code (V of 1908)---

----O. XXXVII---Suit for recovery of money was decreed and the property in dispute was held liable to be attached and sold in execution proceedings---During execution proceedings when the property happened to be sold, petitioner came up with an objection petition that the property belonging to him could not be sold in satisfaction of the decree because it was purchased by him from the judgment-debtor on the basis of a sale-deed duly registered---Executing Court and the High Court did not agree to the objection and dismissed the application of objector---Decree-holder contended that the disputed property being the subject-matter of the civil suit could never be transferred during the pendency of civil suit and that if at all transferred, it was hit by the principle of lis pendens and thus, being considered to be the property of decree-holder, it could well be attached and sold for the satisfaction of decree---Validity---Held, both the Courts had not appreciated the matter in its true legal perspective---No doubt the defendant in the suit had sold this property to the petitioner/objector who happened to be his brother-in-law, during the pendency of the suit, yet it could neither be declared as the suit property nor the subject-matter of the suit---Fact remained that the subject-matter of the suit was only the money involved---Property could only become the subject-matter, had the same been attached before judgment in accordance with the provision of the C.P.C.---Property, in circumstances, could never be dubbed as the subject-matter of the suit nor could be sold in the satisfaction of decree---Principle of lis pendens applied to a lis which was the subject-matter of the suit and in that too, the transaction was never considered void but the validity of the same was deferred till the conclusion of the trial and was always subject to what the Court finally determined thereabout---Supreme Court converted the petition into appeal and set aside the impugned judgment of the High Court---Property in dispute was declared not to be the subject-matter of the suit---Decree-holder could go for any other property of the judgment-debtor and could also invoke all or any of the coercive measures against the judgment-debtor as provided by O. XXI, C.P.C.

Muhammad Shahzad Shaukat, Advocate Supreme Court for Petitioner.

Saeed-uz-Zaffar, Advocate Supreme Court for Respondent.

Date of hearing: 19th May, 2005.

2005 S C M R 1398

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Hamid Ali Mirza and Saiyed Saeed Ashhad, JJ

RUKHSANA BEGUM---Appellant

Versus

TNT EXPRESS WORLDWIDE PAKISTAN (PVT.) LTD.---Respondent

Civil Appeals Nos.2426 to 2428 of 2001, decided on 20th April, 2005.

(On appeal from the judgment, dated 12-1-2001 of the High Court of Sindh, Karachi passed in R.F.As. Nos.250 to 252 of 1998).

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

----S. 15(2)(ii)---Income Tax Ordinance (XXXI of 1979), S.50(7-B)---Default in payment of rent---Deduction of withholding tax from rent as per demand raised by Income Tax Authorities warning tenant-Company of penal consequences on its failure---Payment of rent by tenant after deducting amount of tax and depositing same in Government treasury in relevant account---Tenant-Company was fully justified to make such deductions.

Messrs Meridian Corporation (Pvt.) Ltd. v. Mrs. Yasmeen Riaz 1999 SCMR 832 distinguished.

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

----S. 15(2)(ii)---Income Tax Ordinance (XXXI of 1979), S.50(7-B)-Default in payment of rent---Deduction of withholding tax from rent by tenant--Refusal of landlord to receive balance amount of rent---Deposit in Court on 19-1-1993 balance amount of rent for months of October, November, December, 1992---Plea of tenant was that rent for October, 1992 was once again remitted through letter dated 3-1-1993, which was refused by landlord---Validity---Rent as per lease agreement was payable in advance before 10th of each month---After extending benefit of fifteen days as prescribed in S.15(2)(ii) of Sindh Rented Premises Ordinance, 1979, monthly rent would be payable in advance by 25th of each month---Tenant had deposited rent for disputed period for the first time on 19-1-1993 without showing any legal justification---Nothing was on record to show that tenant had been prevented by superior force in not depositing rent for such period soon after refusal of rent for October, 1992---Period prescribed for payment of rent could not be extended at the whims of tenant, particularly when tenant had admitted in such letter that cheques on account of rent for months of November, December, 1992 were not prepared due to refusal of landlord to receive rent for October, 1992---Tenant had committed wilful default in payment of rent---Ejectment petition was accepted in circumstances.

Syed Haider Ali Pirzada, Advocate Supreme Court and Abdul Qadir Khan, Advocate Supreme Court for Appellants.

Abdul Sattar Pingar, Advocate Supreme Court and M.S. Ghaury, Advocate-on-Record for Respondent.

Date of hearing: 20th April, 2005.

2005 S C M R 1402

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Muhammad Nawaz Abbasi, JJ

ARIF DIN---Petitioner

Versus

AMIL KHAN and another---Respondents

Criminal Petition No.14-P of 2005, decided on 25th May, 2005.

(On appeal from the judgment dated 14-1-2005 passed by the Peshawar High Court, Peshawar in Criminal Miscellaneous No.1421 of 2004).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/34 & 324/34---Bail, refusal of---Cross-versions---Tentative assessment is permissible at bail stage and mere existence of cross-case cannot be a ground for grant of bail---Bail to all the parties cannot be granted simply because of the existence of cross-version and without making tentative assessment of given circumstances---Courts cannot be made bound to consider every cross-case a case of further inquiry and thus grant bail to all the persons involved---Principles.

A tentative assessment is permissible at bail stage and mere existence of cross-case cannot be a ground for grant of bail. Bail to all the persons cannot be granted simply because of the existence of cross-version and without making tentative assessment of the given circumstances.

If the Courts are made bound to consider every cross-case a case of further inquiry and thus to grant bail to all the persons involved, it would lead to various anomalous and complicate situations. Every accused in murder cases would come forward with a frivolous cross-version in order to make it a case of further inquiry and to get released on bail. It is to check these frivolous situations that even in cross-cases the Courts are permitted to make tentative assessment. At times it is quite difficult to presume that a cross-case is false but at times the frivolity is apparent on the face of record. The only safeguard against frivolous and false cross-cases is to make a tentative assessment without any conclusive finding on the subject.

Nasir Muhammad Wassan's case 1992 SCMR 501 fol.

Shoaib Mehmood Butt's case 1996 SCMR 1845; Maqbool Muhammad's case 2005 SCMR 635 and Fazal Muhammad's case 1976 SCMR 391 ref.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Petitioner.

Muhammad Aslam Uns, Advocate Supreme Court with Arshad Ali Chaudhry, Advocate-on-Record for Respondent No.1.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court for the Complainant.

M. Bilal, Senior Advocate Supreme Court for the State.

Date of hearing; 25th May, 2005.

2005 S C M R 1405

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Tassasduq Hussain Jillani, JJ

PEHLWAN and others---Appellants

Versus

Haji MUHAMMAD MURAD and others---Respondents

Civil Appeal No.804 of 2000, decided on 2nd May, 2005.

(On appeal from order dated 10-5-2000 of the High Court of Balochistan, Quetta, passed in C.M.A. No.587 of 2000 in Civil Revision No.300 of 1999).

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

-------O. XXIII, R.1 & S.115---Specific Relief Act (I of 1877), S.42---Suit for declaration and partition of property---Plaintiff had described the suit property with its boundaries---Khewat, Khatoni and Khasra numbers of the fields had not been mentioned in the body and prayer clause of the plaint---High Court in circumstances, was justified in allowing them to withdraw the civil suit and to file a fresh one in order to avoid multiplicity of proceedings in respect of the same cause of action and the same property----Permission to withdraw a civil suit for the purpose or filing a fresh one can be granted by the Appellate and Revisional Court at any stage of proceedings.

Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue Punjab and others PLD 2003 SC 979; Qamar Zaman and others v. Musammir Shah 2000 SCMR 1730 and Ismail v. Fida Ali PLD 1965 SC 634 ref.

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

----O. XXIII, R.1---Withdrawal of suit---Scope---Withdrawal of suit with permission to institute another one is not restricted only to the cases of formal defect---Scope of O.XXIIT, R.1., C.P.C. is wide enough to empower a Court to grant such permission on some other sufficient grounds.

Haji Muhammad Boota and others v. Member (Revenue), Board of Revenue Punjab and others PLD 2003 SC 979; Qamar Zaman and others v. Musammir Shah 2000 SCMR 1730 and Ismail v. Fida Ali PLD 1965 SC 634 ref.

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

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

Date of hearing: 2nd May, 2005.

2005 S C M R 1408

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Saiyed Saeed Ashhad, JJ

SINAULLAH and others---Appellants

Versus

MUHAMMAD RAFIQUE and others---Respondents

Civil Appeal No.1077 of 2002, decided on 24th May, 2005.

(On appeal from the judgment, dated 23-5-2002 of the Lahore High Court, Lahore passed in Civil Revision No.2805 of 1996).

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

----S. 196---Specific Relief Act (I of 1877), S.12---Specific performance of agreement to sell land---Ratification of an act---Scope---Ratification as required by S.196, Contract Act, 1872 could be made by the person on whose behalf an act has been done by the agent without having authority to perform such act---Necessity required that the person ratifying the act should be in full and complete knowledge of the case and it was the duty of the person claiming ratification of the act done by him on behalf of the principal to establish beyond any doubt that the person who was to ratify the act had been fully explained the facts and circumstances of the case, the consequences thereof as well as of the ratification or refusal to ratify---No material on record was available, in the present case, to establish that such act was performed---Various powers-of-attorney executed by the female co-sharers were not produced in evidence in the Trial Court on account of which it was impossible to find out whether there was any mention of the agreement to sell and whether the female co-sharers had expressly stated therein that they would be bound by the said agreement to sell---Female co-sharers, in circumstances, were under no compulsion to execute sale-deed pertaining to the land and the agreement to sell could not have been specifically enforced against them.

Muhammad, Yaqoob v. The Settlement Authority and others 1973 SCMR 484; Surendra Nath Roy v. Kedar Nath Bose and others AIR 1936 Cal. 87; Abdul Hamid v. Abbas Bhai Abdul Hussain Sodawaterwala PLD 1962 SC 1; Ashfaque Ahmad Sheikh v. The State PLD 1972 SC 39; Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344; Zaheer Ahmad and another v. Abdul Aziz and others 1983 SCMR 559; Muhammad Yaqub v. Muhammad Nasrullah Khan and others PLD 1986 SC 497; Mst. Amina Bibi v. Mudassar Aziz PLD 2003 SC 430; Mst. Batul and others v. Mst. Razia Fazal and others 2005 SCMR 544; Momtazul Karim and others v. Abu Hussain and another 1970 SCMR 816; Muhammad Ashraf v. Ali Zaman and others 1992 SCMR 1442; Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189; Muhammad Bashir and others v. Iftikhar Ali and others PLD 2004 SC 465; Mrs. Anwara Chowdhury v. M. Majid and others PLD 1964 SC 807; Razia Sultana Llano and 4 others v. Muhammad Sharif and 9others 1993 SCMR 804; Haji Abdul Rehman and 3 others v. Noor Ahmad and 3 others PLD 1974 BJ 25; Abdul Khaliq v. Anis Ahmad and others 1988 MLD 2904; Wali v. Manak Ali PLD 1965 SC 651; Abdul Aziz Sahib v. M. Abdul Samad Sahib and another AIR 1937 Mad. 596 and Muhammad Sharif v. Mst. Fajji alias Phaji Begum through Legal Heirs and another 1998 SCMR 2485 ref.

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

----Ss. 14, 15, 16 & 17---Partial specific performance can be ordered only in the cases strictly falling within the provisions of Ss. 14, 15 & 16, Specific Relief Act, 1877---Partial specific performance of a contract can be ordered by a Court in view of the provisions of S.17, Specific Relief Act, 1877---Only those contracts can be specifically enforced which are capable of division, and then the part which can be specifically performed can be ordered to be enforced---If, however, an agreement or contract is such which is an indivisible agreement/contract consisting of one single transaction not permitting splitting up of the transaction, then such a case would not be covered by Ss.14, 15 and 16 of the Specific Relief Act, 1877 and the agreement or contract could not be ordered to be partially specifically performed---Principles.

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

-----S. 17-Partial specific performance of an agreement to sell land---Where there was only one contract between the vendees and vendors and if the shares of the vendees were specified, as long as contract was one, S.17, Specific Relief Act, 1877 would bar splitting up of the transaction.

Mrs. Anwara Chowdhury v. M. Majid PLD 1964 SC 807 distinguished.

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

----Ss. 12, 13, 14, 15 & 16---Specific performance of agreement to sell land---Grant of relief of specific performance is a discretionary relief and in granting such relief, the Court has to act equitably in such a manner that no prejudice, loss or injury is caused to any other person-Partial­performance of the agreement, even if legally possible, would be refused on the ground that the same would occasion prejudice, damage, loss and would be disadvantageous to the other person.

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

----Art. 185--Appeal to Supreme Court---Concurrent findings of two Courts below could be interfered with, if found to be based on gross misreading, non-reading or misconception of evidence available on record.

Alamdar Hussain v. Nazir Hussain 2004 SCMR 595 ref.

Ch. Hameed-ud-Din, Senior Advocate Supreme Court for Appellants.

Gulzarin Kiani, Advocate Supreme Court and Ejaz Muhammad Khan Advocate-on-Record for Respondents Nos. 1 and 2.

Other Respondents: Ex parte.

Date of hearing: 14th April, 2005.

2005 S C M R 1422

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Javed Iqbal, JJ

AMIR HAMZA---Appellant

Versus

GOVERNMENT OF BALOCHISTAN and others---Respondents

Civil Appeal No.1579 of 2004, decided on 21st April, 2005.

(On appeal from the judgment/order dated 25-3-2004 passed by Balochistan Service Tribunal, Quetta in S.A. No.31 of 1999).

Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979-----

----R. 14---Recruitment by Government Departments---Provincial, Regional or District quotas---Procedure---Provincial Government, under R.14, Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979, has been authorized to make recruitments on Provincial, Regional or District quotas---Government, in pursuance of R.14, has framed policies from time to time, the contents whereof indicate that rotation-wise quota for each Division has been fixed---Such policy having Statutory backing has attained the legal Status and is required to be adhered to in letter and spirit by all the departments of Government including the Board of Revenue, being one of the departments under Rules of Business (1976)---Every department owes a duty to mention in the advertisement about the bifurcation of the posts according to rotation-wise quota of the relevant Division---Non-adherence to such policy can render the appointments so made by the department, illegal in nature.

Faizullah Khan v. Government of Pakistan PLD 1975 SC 291 fol.

S.A.M. Quadri, Advocate-on-Record/Advocate Supreme Court for Appedant.

Salahuddin Mengal, Advocate-General (Balochistan) for Respondents Nos.1 to 3).

Jamal Khan Mandokhel, Advocate Supreme Court and M.W.N. Kohli, Advocate-on-Record for Respondents Nos.4 to 7.

H. Shakeel Hadi, Advocate Supreme Court and Anwar Khan Durrani, Advocate-on-Record (absent) for Respondent No.8.

Respondent No.9: Ex parte.

Masood Ahmed, Secretary, S&GAD, Marjan Khan, Senior Member, Board of Revenue, Zahid Kasi, Secretary (Admn.), Board of Revenue, Nasrullah Khan, Assistant Secretary, Board of Revenue and Hamidullah, Assistant, Board of Revenue on Court notice.

Date of hearing: 21st April, 2005.

2005 S C M R 1428

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Tassaduq Hussain Jillani, JJ

ABDUL QADOOS and others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, RAWALPINDI and others---Respondents

Civil Petition No.658 of 2002, decided on 4th January, 2005.

(On appeal from the order dated 16-4-2002 passed by Lahore High Court, Lahore in Civil Revision No.1517-D of 1980).

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

----Ss. 12(2) & 115---Limitation Act (IX of 1908), Ss.5, 14 & Art.181---Application for setting aside judgment passed by High Court in revision petition---Delay of more than 14 years, condonation of---Non-filing of application under Ss.5 & 14 of Limitation Act, 1908 offering grounds for condonation of delay---Dismissal of application under S.12(2), C.P.C. for being hopelessly time-barred---Plea of petitioner was that a separate paragraph in revision petition accompanied with his affidavit found mention that he had been pursuing matter before appropriate forums in a bona fide manner, thus, there was no delay in filing revision petition and the delay, if any found by High Court be condoned---Validity---Such paragraph would hardly qualify as an application seeking condonation of delay---No details had been mentioned in such paragraph justifying condonation of each day of delay of more than 14 years---No fraud, collusion or misrepresentation justifying acceptance of application under S.12(2), C.P.C. had been shown---Impugned judgment was unexceptional---Supreme Court dismissed petition and refused leave to appeal.

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners.

Nemo for Respondents Nos.1, 2 and 6.

Ajmal Kamal Mirza, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondents Nos.3 to 5 and 7 to 12.

Date of hearing: 4th January, 2005.

2005 S C M R 1431

[Supreme Court of Pakistan]

Present: Falak Sher and Tassaduq Hussain Jillani, JJ

MUHAMMAD YAQOOB---Petitioner

Versus

THE STATE---Respondents

Criminal Petition No.237-L of 2004, decided on 17th May, 2005.

(On appeal from the judgment, dated 19-2-2004 passed by the Lahore High Court, Lahore in Criminal Appeal No.597 of 1997 and M.R. No.232 of 1997).

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

----S. 302---Qanun-e-Shahadat (10 of 1984), Art.129(e)---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Entry in report of Forensic Science Expert---Presumption---F.I.R. was lodged without any delay and eye-witnesses had narrated the graphic details of the occurrence which were corroborated by other prosecution witness---Death penalty awarded by Trial Court was maintained by High Court---Accused raised the plea that the constable who took the parcels of crime empties, denied having received any such parcel---Validity---Report of Forensic Science Expert showed that in the first column of the report there was an endorsement of receipt of crime-empties by the constable who had denied receipt of any such parcel---Presumption of truth was attached to such entries unless the presumption was rebutted, thus, such entries made in the report could not be disbelieved---Accused neither led any evidence nor challenged the entries during the trial---In the face of such documentary evidence, the prosecution witness denying receipt of any such parcel had made a dishonest concession by withholding the fact that he had delivered the parcel to the office of Forensic Science Expert---Report of Forensic Science Expert corroborated that the empty recovered from the spot was fired from the gun recovered at the instance of the accused---Finding of conviction upheld by High Court was unexceptionable and no interference was warranted---No question of law of public importance had been raised---Leave to appeal was refused.

M.A. Zafar, Advocate Supreme Court and M. Aslam Chaudhry, Advocate-on-Record for Petitioner.

Nemo for respondent.

Date of hearing: 17th May, 2005.

2005 S C M R 1435

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Falak Sher, JJ

PROVINCE OF PUNJAB----Petitioner

Versus

Sh. M. RIAZ SHAHID---Respondent

Civil Petition No.2555-L of 2000, decided on 27th December, 2004.

(On appeal from the judgment of Lahore High Court, Lahore dated 27-9-2000 passed in F.A.O. No.337 of 1999).

Civil Procedure Code (V of 1908)---

----S. 96---Constitution of Pakistan (1973), Art.185(3)---Appeal before High Court---Barred by limitation---Right of Government Departments---Scope---Suit filed by contractor was decided on the basis of arbitration between the parties and award given by Arbitrator was made rule of the Court---Department being aggrieved of the award, filed appeal before High Court after more than 1-1/2 years of making the award rule of the Court---Appeal filed by Department was dismissed by High Court being barred by limitation---Validity---Inordinate delay in filing appeal before High Court was only a result of gross negligence on the part of Department which sat over the matter for more than 16 months before approaching the Solicitor for the filing of appeal---Supreme Court declined condonation of such negligence on the part of Government functionaries and observed that it was not the first time when such misconduct was committed on the part of Government functionaries in the matter of, protecting public interest; at times the concerned functionaries were in collusion with private parties, had permitted the proceedings to go undefended and then file appeals and revisions etc. in the higher fora only to use the same to cover their illegal and dishonest designs---Supreme Court directed the Government to take stock of such-like conduct on the part of Government functionaries which caused huge losses to public funds and property---Supreme Court refused to take any exception to the judgment passed by High Court---Leave to appeal was refused.

Central Board of Revenue v. Messrs Raja Enterprises and others 1998 SCMR 307 fol.

Raja Abdul Rehman, A.A.-G., Punjab, Rao Muhammad Yusuf Khan, Advocate-on-Record with M. Abid Khan, S.D.O., Lahore Sub-Division, Irrigation and Power Department for Petitioner.

Nemo for Respondent.

Date of hearing: 27th December, 2004.

2005 S C M R 1438

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and M. Javed Buttar, JJ

JAMSHAID ALI---Petitioner

Versus

GHULAM DIN through L.Rs. and others---Respondents

Civil Petition No.268-L of 2001, decided on 21st June, 2005.

(On appeal from the judgment dated 11-8-2000 of the Lahore High Court, Lahore passed in Civil Revision No.1819 of 2000).

Land Reforms Regulation, 1972 [MLR 115]-----

----Para. 25(3)(d)---Constitution of Pakistan (1973), Art.185(3)---Pre­emption, right of---Trial Court having already passed a decree before 31-7-1986, right of parties would remain unaffected by the declaration of Para. 25(3)(d) of Land Reforms Regulation, 1972 to be repugnant to the Injunctions of Islam by the Supreme Court with effect from 31-7-1986---First right of pre-emption, thus, would be available to a tenant to defend a suit for pre-emption instituted against him.

Government of N.-W.F.P. through Secretary, Law v. Said Kamal Shah PLD 1986 SC 360; Lal Din v. Bashir Ahmad 1991 SCMR 228; Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287; Muhammad Khan and others v. Muzaffar PLD 1983 SC 181 and Piara Khan v. Bashir Ahmad 1991 SCMR 2107 ref.

M.A. Aziz, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioner.

Malik Allah Yar, Advocate Supreme Court and Muhammad Arshad Ch. Advocate-on-Record (absent) for Respondents Nos.1, 3 and 4.

Date of hearing: 21st June, 2005.

2005 S C M R 1440

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

Syed BAQAT BUKHARI and others---Appellants

Versus

ELLAHI BAKHSH and others---Respondents

Civil Appeal No.1856 of 2001, decided on 27th June, 2005.

(From the judgment dated 23-5-2001 of the Lahore High Court, Rawalpindi Bench passed in R.S.A. No.113 of 1983).

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

----S. 21-A---Superior right of pre-emption---Improvement in the status had to be of the vendee-defendant himself and not in the status of his heirs who were neither the vendees nor defendants in the original suit---Improvement in the status of a vendee, after the institution of suit, would not defeat the right of pre-emtpor/plaintiff except improvement made through inheritance of succession which also had to be in the status of vendee-defendant and not that of his heirs---Any improvement made in the status of the vendee, particularly after the judgment of Trial Court, was of no consequences---Principles.

It is the date of final judgment of the trial Court in the suit of pre-emption on merits, whether in favour of the plaintiff or the defendant, that improvement of status of the vendee through succession, if made before the said date, could defeat the suit and not otherwise.

No doubt it is possible for a vendee to improve his status effectively up to the time of the adjudication of the suit against him and get the same dismissed if on account of that improvement, he becomes either equal to or superior in status to that of the pre-emptor. But it is not possible to extend the date by which a vendee can improve his status beyond the date of the adjudication of the suit by the Court of first instance and he cannot, therefore, by improving his position during the pendency of an appeal defeat the pre-emptor when the decision of the first Court in the pre-emption suit against which the appeal was preferred was given on the merits whether rightly in the pre-emptor's favour or erroneously against him.

A vendee can defeat the right of the pre-emptor by improving his status at any time before the passing of the decree in the pre-emption suit by the Trial Court, as the rights of parties are adjudicated upon by the Trial Court alone and the function of the Court of appeal is only to see what was the decree which the Court of first instance should have passed.

Fazal Hussain v. Karam through L.Rs. 2002 SCMR 648 fol.

Zahur Din and another v. Jalal Din and others AIR (31) 1944 Lah. 319; Thakur Madho Singh and another v. Lt. James R.R. Skinner and another AIR 1941 Lah. 433 and Muhammad Akram and 3 others v. Muhammad Rashid and 2 others PLD 1994 SC 848 ref.

M. Ibrahim Satt, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Appellants.

Gul Zareen Kiyani, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Respondents.

Date of hearing: 27th June, 2005.

2005 S C M R 1444

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and M. Javed Buttar, JJ

SULTAN ALI alias SULTAN through L.Rs. and others---Petitioners

Versus

RASHEED AHMAD and 45 others---Respondents

Civil Petition No.1515-L of 2003, decided on 17th June, 2005.

(On appeal from the judgment dated 7-4-2003 of the Lahore High Court, Lahore passed in R.S.A. No.6 of 1993).

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

----O. XLI, Rr.27 & 23---Application for production of additional evidence---Decision of such application before final judgment---Trial Court decreed the suit in favour of plaintiff---During pendency of appeal before Appellate Court, defendant filed application for producing additional evidence---Appellate Court, instead of deciding the application separately dismissed the whole appeal---High Court while deciding second appeal, remanded the matter to Appellate Court for deciding the appeal afresh on the ground that before deciding the appeal finally, Appellate Court should have decided the application---Validity---View expressed by High Court was incorrect---Court, in every case, was not supposed to decide the application for permission to adduce additional evidence prior to the decision of the main appeal through separate orders and could give a composite judgment---No legal justification existed for the remand of appeal to Appellate Court as the Court had given reasons for dismissing the application for permission to produce additional evidence---High Court could have decided the appeal before it on merits and was competent to look into the reasons given by Appellate Court in dismissing the application for additional evidence---Petition for leave to appeal was converted into appeal and matter was remanded to High Court for decision of second appeal afresh---Appeal was allowed.

Muhammad Umar v. Muhammad Qasim and another 1991 SCMR 1232 ref:

Hasnat Ahmad Khan, Advocate Supreme Court and Faizaur Rehman, Advocate-on-Record for Petitioners.

Ch. Muhammad Abdullah, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Respondent No. 1.

Date of hearing; 17th June, 2005.

2005 S C M R 1447

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Muhammad Nawaz Abbasi, JJ

MUHAMMAD IQBAL and 5 others---Petitioners

Versus

ALLAH BACHAYA and 18 others---Respondents

Civil Petition No.2523-L of 2004, decided on 26th May, 2005.

(On appeal from the judgment of Lahore High Court, Multan Bench, dated 24-6-2004 passed in Civil Revision No.883-D of 2003).

Islamic Law---

----Inheritance---Limitation---Bar of limitation is not applicable to right of inheritance which does not extinguish such right by afflux of time---Right of inheritance of a female, recognized in Shariah, cannot be denied on the basis of oral assertion of surrender of such right by a female in favour of male member of family and in any case, there is no concept of estoppel to deprive a person from his right in the inheritance in Islam---Party, in the present case, had not been successful in showing that the female had surrendered her right in the property in favour of her brothers in a lawful manner or the suit involving right of inheritance could be dismissed on the ground of estoppel or limitation---Judgment of the High Court was neither in conflict with Law of Inheritance in Islam nor was .the result of misreading or non-reading of evidence brought on record by the parties---Supreme Court dismissed the petition for leave to appeal accordingly.

Ch. Muhammad Ashraf, Advocate Supreme Court for Petitioners.

Muhammad Naeem Sh. Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondent No. 1.

Nemo for other Respondents.

Date of hearing: 26th May, 2005.

2005 S C M R 1450

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Muhammad Nawaz Abbasi, JJ

IBRAHIM SHAMSI and 2 others---Petitioners

Versus

BASHIR AHMED MEMON and another---Respondents

Civil Petition No.319-K of 2005, decided on 28th June, 2005.

(On appeal from the order, dated 18-4-2005 and 4-4-2005 passed by the Sindh High Court, Karachi in Judicial Miscellaneous No.37 of 2003).

(a) Companies Ordinance (XLVII of 1984)----------

-------S. 10-Appeal against Court orders---Interpretation of S.10, Companies Ordinance, 1984---Orders falling within the ambit of S.10(1), Companies Ordinance, 1984 are appealable before the Supreme Court while all other orders under S.10(2) of the said Ordinance are challengeable through an Intra-Court Appeal---Section 10(1) of the Ordinance includes the winding up order as well as any order or decision in proceedings where the Company has already been ordered to be wound up---Any order passed or decision made by Company Judge after the winding up of the Company, shall be appealable before the Supreme Court in the manner and under the conditions described in S.10(1) itself---Order passed after winding up proceedings, petition before Supreme Court, is maintainable---Principles.

A close perusal of section 10, Companies Ordinance, 1984, would indicate, under subsection (1) thereof, that whether the Company ordered to be wound up has a paid-up capital of not less than one million rupees, or whether it is less than one million rupees, the resort shall have to be made to the Supreme Court with the only difference that in the former case it would be a direct appeal and in the later case it would be a petition for leave to appeal. The order of winding up is included in subsection (1) of the section. Any other order that does not fall within the ambit of subsection (1), would be considered under subsection (2) thereof and appeal against such order would lie in the same manner in which and subject to the same conditions under which appeals lie from any order or decision of the Court. This refers to all orders passed in exercise of original civil jurisdiction of a High Court which under section 15 of Code of Civil Procedure (Amendment) Ordinance 1980, would be appealable before a Division Bench of a High Court. To simplify, the orders falling within the ambit of section 10(1) of the Ordinance are appealable before the Supreme Court while all other orders under section 10(2) of the Ordinance are challengeable through an Intra-Court Appeal.

A casual reading of section 10(1) of the Companies Ordinance, 1984 gives an impression that it pertains to the order of winding up alone which is appealable before the Supreme Court. Had it been the intention of Legislature, it could have conveniently used singular term of winding up, to the effect that, any judgment whereby the Company is ordered to be wound up, shall be appealable before the Supreme Court in the manner and under the conditions already described. Contrary to the use of single term, the use of multiples like "order", "decision" or "judgment" certainly covers a wider ambit and points to a scenario where different types of orders, not necessarily of winding up, might be challenged in appeal.

Another important characteristic of this subsection is the use of word "where the Company ordered to be wound up". These terms visualize the passage of any "order" or "decision" passed or made at a time when the Company has already been wound up. Had the Legislature an intention to make a mere reference to an order or decision passed or made during the pendency of a winding up proceedings, it could have used the words "where the Company is sought to be wound up" instead of the words "where the Company is ordered to be wound up". So it includes any order passed after the winding up order. The wisdom is apparent because after the winding up order, the Legislature did not seem to have intended to prolong the matters by allowing an intermediary remedy of Intra-Court Appeal.

Section 10(1) includes the winding up order as well as any order or decision in proceedings where the Company has already been ordered to be wound up. Any order passed or decision made by Company Judge after the winding up of company, shall be appealable before the Supreme Court in the manner and under the conditions described in the subsection itself. As the impugned order is passed after winding up proceedings, the petition before Supreme Court, is maintainable.

Appeal under section 10, is competent only where an order or decision' has been made in proceedings when the Company has already been ordered to be wound up. The terms to be appreciated are, any "proceedings" when the Company has "already been ordered to be wound up". It gives a clear indication that once a company has already been ordered to be wound up, any order passed or decision made in proceedings thereafter can be challenged before the Supreme Court under section 10(1) of Ordinance, 1984.

Once a winding up order has been passed, all orders passed in proceedings thereafter shall fall under section 10(1) of the Ordinance and be appealable before the Supreme Court.

S. Muhammad Din and Sons' case 1992 SCMR 1795 and Muhammad Farooq's case PLD 1999 Kar. 246 ref.

Mehboob Industries v. P.I.C.I.C. 1988 CLC 866; Brother Steel Mills Limited v. Mian Ilyas Meraj PLD 1996 SC 543 and Diamond Industries' case PLD 2003 SC 124 distinguished.

(b) Companies Ordinance (XLVII of 1984)---

----S. 10---Winding up of company---Direction of Court to Official Assignee to sell the Company's assets---Petition for leave to appeal to Supreme Court---Record showed that by the time Second Reference was prepared and made by the Official Assignee, the highest bid till such time was of the petitioners and it was on or up to 21-3-2005 which came up before the Court on 4-4-2005 when the expectation of still higher bid was expressed---Court made order to make a fresh ,Reference, to be heard along with Second Reference on 11-4-2005---Before the said date of hearing, the objections were filed and early hearing was sought---Instead of shortening the period of hearing from 11-4-2005, the Court ordered the hearing of all the pending References, applications and objections, for 3-5-2005---As against its own fixation, Court suddenly, on 18-4-2005, an intervening date, took up the hearing of Third Reference, passed the impugned order altogether ignoring Second Reference, which, through the said order, was again left at the mercy of Official Assignee despite the fact that same was already submitted by the latter for approval or otherwise, by the Court---Said order was definitely passed at the back of the bidders declared highest in the Second Reference---Such order violating the basic principles of natural justice held, was not sustainable in law---Petition for leave to appeal before the Supreme Court was converted into appeal by the Supreme Court, appeal was accepted and order dated 18-4-2005 was set aside and the case was remanded to the Company Judge with directions to decide Second Reference and Third' Reference along with all the objections and applications of the parties, after hearing all the parties concerned keeping in view, the larger interest, in accordance with law of the Company under liquidation as well as the creditors---Company Judge was further directed to decide the matter within 15 days from the-receipt of present order of the Supreme Court.

Muhammad Ibrahim Satti, Advocate Supreme Court with Ch. Muhammad Akram, Advocate-on-Record and Moulvi Syed Iqbal Haider for Petitioners.

Nemo for Respondent No.1.

Syed Sami Ahmed, Advocate Supreme Court with Suleman Habib Khan, Advocate-on-Record for Respondent No.2.

Date of hearing: 25th May, 2005.

2005 S C M R 1458

[Supreme Court of Pakistan]

Before Muhammad Nawaz Abbasi and M. Javed Buttar, JJ

MUHAMMAD RIAZ and another---Petitioners

Versus

GHULAM NABI and another---Respondents

Civil Petition No.24-L of 2005, decided on 21st April, 2005.

(On appeal from the judgment dated 10-12-2004 passed by Lahore High Court, Lahore, in Civil Revision No.233 of 2004).

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

----S. 13---Talbs---Talb-i-lshhad, performance of---Proof---Requirements---Talbs must be performed within the statutory period provided in law and performance must also be proved through the evidence---Pre-emptor, in the present case, placed reliance on a copy of the notice of Talb-i-Ishhad along with the two postal receipts, claimed performance of Talb-i-Ishhad without proving through the evidence that these postal receipts produced in Court factually pertained to the dispatch of notice of Talb-i-Ishhad---Evidence produced by the pre-emptor regarding the performance, of Talb-i-Ishhad, in view of his own admission of giving notice of Talb-i-Ishhad on the day of filing of suit, would be of no significance and presumption would be that either no notice was sent or it was sent on the day of filing the suit which was beyond the prescribed period and the requirement of Talb-i-Ishhad was not fulfilled in accordance with law.

Ch. Muhammad Anwar Bhinder, Advocate Supreme Court for Petitioners.

S.M. Tayyab, Senior Advocate Supreme Court for Respondents.

Date of hearing: 21st April, 2005.

2005 S C M R 1461

[Shariat Appellate Jurisdiction]

Present: Qazi Muhammad Farooq, Chairman, Hamid Ali Mirza, Abdul Hameed Dogar, Dr. Allama Khalid Mahmood and Dr. Rashid Ahmad Jullundhari, Members

ZIA ULLAH alias JAJJ-Petitioner

Versus

THE STATE---Respondent

Jail Petition No.11(S) of 1999, decided on 14th April, 2003.

(On appeal from the judgment dated 3-5-1999, passed by the Federal Shariat Court, in Jail Cr. A. No.158/L of 1997 and Cr.M.R. No.5/L of 1998).

Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)---

--S. 17---Criminal Procedure Code (V of 1898), Ss.103 & 154---Qanun-e-Shahadat (10 of 1984), Art.22---Leave to appeal was granted by Supreme Court to consider the contentions of the accused that the FIR was recorded after preliminary investigation and allegation with regard to Haraabah was inserted therein by means of interpolation---Further contention was that the eye-witnesses were not natural and probable witnesses and their statements were also fraught with improvements, discrepancies and contradictions---Accused further contended that the recovery of crime pistol from him was doubtful as it was not made in presence of any independent witness---Accused also contended that the test identification parade was defective because delay in holding the same had not been explained satisfactorily, and role attributed to the accused was not stated by the witnesses---Identification thus, had no evidentiary value as held by Supreme Court in case titled Mehmood Ahmad vs. The State, reported as 1995 SCMR 127 and separate identification parades for each accused ought to have been held or omission to follow such requirement explained in view of the observations made by Supreme Court in case titled Lal Pasand vs. The State reported as PLD 1981 SC 142---Accused also contended that he was awarded sentence of death whereas his co-accused persons were acquitted on the same evidence.

Mehmood Ahmad v. The State 1995 SCMR 127 and Lal Pasand v. The State PLD 1981 SC 142 ref.

M. Zaman Bhatti, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 14th April, 2003.

2005 S C M R 1462

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

JAVAID IQBAL, A.S.-I POLICE STATION IQBAL TOWN, LAHORE----Appellant

Versus

SENIOR SUPERINTENDENT OF POLICE, LAHORE and 2 others---Respondents

Civil Petition for Leave to Appeal No.1721-L of 1999, decided on 15th July, 2004.

(On appeal from judgment dated 12-8-1999, passed by the Punjab Service Tribunal, Lahore in Appeal No.1652 of 1998).

Police Rules, 1934---

----R.13.18---Constitution of Pakistan (1973), Art.212 (3)---Ad hoc promotion---Reversion to lower rank---Civil servant was promoted as Sub-Inspector on ad hoc basis-,Authorities reverted him to Assistant Sub-Inspector, on the charge of involvement in criminal case---Appeal before Service Tribunal was dismissed---Plea raised by the civil servant was that once he was promoted, he could not be reverted without any show-cause notice or inquiry---Validity---Service Tribunal held that the civil servant was found involved in a criminal case which stigma was still attached with him as he had been censured in that case and the civil servant had not preferred any appeal against that order---Promotion of civil servant was made on ad hoc basis and he was neither brought on promotion E-list nor confirmed as Sub-Inspector, therefore, provision of R.13.18 of Police Rules, 1938 was not applicable in the case---Judgment of Service Tribunal was based upon law laid down by Supreme Court and there was no misreading or non-reading of material available---No substantial question of law of general public importance as envisaged under Art.212 (3) of the Constitution was involved in the case---Leave to appeal was refused.

Hafiz Tariq Nasim Advocate Supreme Court with Muhammad Aslam Ch. Advocate-on-Record for Petitioner.

Amanur Rehman, Additional Advocate-General Rao Muhammad Yusuf Khan, Advocate-on-Record and Imtiaz Ali, Inspector (Legal) for Respondents.

Date of hearing: 15th July, 2004.

2005 S C M R 1465

[Supreme Court of Pakistan]

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

Sh. MEHDI HASSAN---Appellant

Versus

PROVINCE OF PUNJAB and others---Respondents

Civil Appeal No.169 of 1998, decided on 29th May, 2003.

(On appeal from the order, dated 15-1-1997 of the Lahore High Court, Rawalpindi Bench passed in W.P. No.87 of 1997).

(a) Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----S. 10---Leave to appeal was granted by Supreme Court to consider; whether the proceedings 'regarding auction of plot in favour of petitioner had been finally decided either by calling upon the petitioner to pay the balance amount of consideration and on his failure to do so, the auction of the same in his favour was cancelled by the Competent Authority in accordance with law on the happening of which the property could become available for further disposal and if no order for the cancellation of the auction of the plot in favour of the petitioner had been passed, the same was a case of pending proceedings which were to be disposed of by the Notified Officer in accordance with the Evacuee Laws as they stood before their repeal.

(b) Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----S. 10---Transfer of property before repeal of Evacuee Laws---Auction in favour of appellant---Proof---Appellant asserted that he purchased the disputed property in auction and it was not available for transfer to any other person by the Settlement authorities---Record relating to the auction of the property was not available-Except endorsement regarding auction of the property and deposit of a portion of sale price made by Deputy Settlement Commissioner, there was no proof of the auction and part payment of sale price by the appellant---Even the compensation book was not traceable---No evidence was available about the existence of the documents on the basis of which the appellant asserted his claim---Effect---Mere endorsement of Deputy Settlement Commissioner on the reply of the appellant to the notice would not be sufficient to establish his claim---In absence of any such evidence, Supreme Court declined to accept that the endorsement made by the Deputy Settlement Commissioner was based on original record and it represented the correct position---Appellant failed to bring on record any evidence in proof of a valid sale for issue of transfer order---Property had been transferred before the repeal of Evacuee Laws and was not available for transfer---Appeal was dismissed.

Muhammad Munir Paracha, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.

Ch. Mushtaq Masood, Senior Advocate Supreme Court for Respondents Nos.1 and 2.

Gul Zarin Kiyani, Advocate Supreme Court for Respondents. Nos.3 and 4.

Date of hearing: 29th May, 2003.

2005 S C M R 1469

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

STATE OF THE ISLAMIC REPUBLIC OF PAKISTAN---Petitioner

Versus

ZULFIQAR AHMED---Respondent

C.P.L.A. No.382-K of 2000, decided on 9th February, 2004.

(On appeal from order of High Court of Sindh, Karachi, dated 14-6-2000 passed in C.P. No.D-301 of 1999).

Exit from Pakistan (Control) Ordinance (XLVI of 1981)-----

----S. 2---Constitution of Pakistan (1973), Art.185(3)---Exit Control List---Delay in deciding the matter---Name of respondent was included in Exit Control List because of his involvement in criminal case---High Court in exercise of Constitutional jurisdiction allowed the petition on the ground that proceedings in the criminal case had already been quashed by High Court---Validity---High Court had rightly observed that matter involved related to liberty of citizens and had to be swiftly disposed of rather than to keep same pending for indefinite period--Supreme Court noted it with serious concern that the Government agencies did not bother even to communicate relevant material to Deputy Attorney-General who represented them before the High Court---In absence of any adequate material and strong reason justifying action by the Authorities, Supreme Court found no ground to interfere with the exercise of discretion by High Court which was neither unfair nor unreasonable nor against the settled principles of law---Leave to appeal was refused.

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

Nemo for Respondent.

Date of hearing: 9th February, 2004.

2005 S C M R 1471

[Supreme Court of Pakistan]

Present: Munir A. Shaikh and Faqir Muhammad Khokhar, JJ

COOPERATIVE MODEL TOWN SOCIETY---Petitioner

Versus

Mst. ASGHARI SAFDAR and others---Respondents

Civil Review Petition No.34-L of 2003 in Civil Petition No.59-L of 2002, decided on 4th April, 2003.

(On review from the judgment of this Court dated 9-12-2002 passed in C.P. No.59-L of 2002).

Civil Procedure Code (V of 1908)---

----O. XLI, R. 1---Supreme Court Rules, 1980, O.XXVI, R.4---Constitution of Pakistan (1973), Art. 188---Review of judgment---Memo. of appeal---Non-filing of certified copy of decree---Contention of the petitioner was that judgment passed by Supreme Court in case titled Baseer Ahmad Siddiqui v. Shama Afroz reported as 1988 SCMR 892, referred by the petitioner had not been noticed in judgment under review---Supreme Court, after considering both the judgments, held that the judgment under review and the judgment reported in the case referred by the petitioner should be construed in the context of their respective peculiar circumstances---Petition was dismissed.

Baseer Ahmad Siddiqui vs. Shama Afroz 1988 SCMR 892 ref.

Saeed-ur-Rehman Farrukh, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 4th April, 2003.

2005 S C M R 1472

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry Khalil-ur-Rehman Ramday and Falak Sher, JJ

FAISAL MEHMOOD---Petitioner

Versus

THE STATE---Respondent

Criminal Petitions Nos.984-L of 2002 and 27-L of 2003, decided on 11th February, 2004

(On appeal from the judgment/order dated 13-11-2002 passed by Lahore High Court, Lahore in Criminal Appeal No.657 of 2000 and Criminal Revision No.363 of 2000).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art.185 (3)---Qatl-e-Amd---Proof---Maintaining conviction and sentence awarded by Trial Court---Leave to appeal was granted by Supreme Court to consider; whether Trial Court and High Court were justified in holding that the convict was entitled for lesser punishment of life imprisonment; and whether prosecution had succeeded in establishing its case to prove the guilt on the basis of trustworthy confidence inspiring evidence.

Sardar M. Latif Khan Khosa, Advocate Supreme Court and Faizur Rahman Advocate-on-Record for Petitioner (in Criminal Petition No.984-L of 2002).

Seerat Hussain Naqvi, Advocate Supreme Court and Mehdi Khan Mehtab, Advocate-on-Record for Petitioner (in Criminal .Petition No.27-L of 2003).

Nemo for the State.

Date of hearing: 11th February, 2004.

2005 S C M R 1475

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

SHER MUHAMMAD through L.Rs, and others---Petitioners

Versus

MUHAMMAD RAFIQ through L.Rs. and another ---Respondents

Civil Petition for Leave to Appeal No.121/L of 2000, decided on 7th April, 2003

(On appeal from the judgment dated 12-11-1999 of the Lahore High Court, Lahore, passed in Civil Revision No.7-D of 1986).

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 was upheld by High Court in revision---Validity---Question of fact that defendant was bona fide purchaser of suit-land for consideration had been determined by two Courts below and upheld by High Court---Impugned judgment did not suffer from any illegality or legal infirmity warranting interference---Supreme Court dismissed petition and refused leave to appeal.

Dr. A. Basit, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.

Aftab Iqbal Chaudhry, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Respondents.

Date of hearing: 7th April, 2003.

2005 S C M R 1476

[Supreme Court of Pakistan]

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

SADAT ALI BAIG and others-Appellants

Versus

BUX ILLAHI---Respondent

Civil Appeal No.1764 of 1997, decided on 9th December, 2002.

(On appeal from the judgment dated 28-5-1997 of the High Court of Sindh, Karachi, passed in F.R.A. No.51 of 1994).

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

----S. 15(2)(iii)(c)---Constitution of Pakistan (1973), Art.185 (3)---Leave to appeal was granted by Supreme Court to consider; whether High Court had not adverted to the evidence on record and had simply made reference to the decided cases on the question of law when there existed sufficient material to show that there was a wall in-between shop and open space of store room which wall was demolished by tenant and consequently there was infringement of terms and conditions of tenancy agreement but the High Court erred in law and fact by not adverting to the evidence and consequently came to wrong conclusion.

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

----S. 15(2)(iii)(c)---Ejectment of tenant---Change in original structural plan of premises---Violating tenancy agreement---Ejectment application was accepted by Rent Controller and eviction order was passed on the ground that the tenant had demolished a wall in-between the shop and the store---High Court in exercise of appellate jurisdiction set aside the eviction order passed by Rent Controller-Validity-By demolishing the wall, tenant had contravened terms and conditions of admitted tenancy agreement which was violative of S.15(2)(iii)(c) of Sindh Rented Premises Ordinance, 1979---Finding of Rent Controller on the issue was based on proper appreciation of evidence on record---Such evidence from the side of landlord could not be rebutted by the tenant---Finding of Rent Controller on the issue could not have been interfered with by High Court by only citing the case-law which in fact did not apply to the facts and circumstances of the case---Case of tenant was total denial of existing wall which existed in-between the shop and store---Removal of the wall on the part of tenant amounted to change in the original structural plan of shop premises which plan was approved by the Development Authority---Reversal of such finding by High Court was not based on proper appreciation of evidence on record and law---Judgment passed by High Court was set aside and eviction order passed by Rent Controller was restored---Appeal was accepted.

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

Respondent in person.

Date of hearing: 9th December, 2002.

2005 S C M R 1481

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

LIAQAT ALI and 13 others---Petitioners

Versus

MEHDI HASSAN and another---Respondents

Criminal Petition No.304-L of 2003, decided on 17th June, 2004.

(On appeal from the order, dated 29-4-2003 of the Lahore High Court, Lahore, passed in Criminal Miscellaneous No.97/T of 2003).

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

------S. 526---Transfer of case---Apprehension of danger to life---Influence of accused---Private complaint of appellants had been pending trial for last about 14 years but only four prosecution witnesses had been examined---Despite many opportunities given to the complainant, he had not produced his remaining witnesses---Accused and his brother were Members of National Assembly while son of the accused was a Provincial Minister---Family of the accused was highly influential and had large number of political supporters in the area---Effect---Apprehension of the appellants was not given proper consideration by High Court---Petition for leave to appeal was converted into appeal and the complaint was transferred from place to place `L' for trial--Appeal was allowed.

M. Saleem Sahgal, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record (absent) for Petitioners.

Nemo for Respondent No.1.

Raja Abdul Rehman, Assistant Advocate-General with Mian Abdul Qayyum Anjum, Advocate Supreme Court and Zafar Ali Shah, S.H.O. P.S. Saddar for the State.

Date of hearing: 17th June, 2004.

2005 S C M R 1483

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Falak Sher, JJ

MIRZA and others---Petitioners

Versus

ABBAS and others---Respondents

Civil Petition No.2091-L of 2003, decided on 7th July, 2004.

(On appeal from the judgment dated 1-7-2003 in Civil Revision No.1240 of 1999 passed by the Lahore High Court, Lahore).

Islamic Law---

----Inheritance---Contention of the petitioners was that widow was not entitled to the extent of share granted by the High Court and first Appellate Court and she was entitled to only 1/6th share in the, land---Validity---No custom had been proved by the petitioners to support the contention---No legal or factual infirmity with the impugned judgment by the High Court concurring with the first Appellate Court was noticed---Misreading or non-reading of evidence on record was not found---No substantial question of law had been raised requiring consideration---Petition for leave to appeal was dismissed---Constitution of Pakistan (1973), Art.185(3).

Naeem-ul-Hassan Sherazi, Advocate Supreme Court for Petitioners.

Naveed Shahryar, Advocate Supreme Court for Respondents.

Date of hearing: 7th July, 2004.

2005 S C M R 1484

[Supreme Court of Pakistan]

Present: Javed Iqbal and Falak Sher, JJ

PROVINCE OF PUNJAB through Collector, Sargodha and others---Petitioners

Versus

AFTAB & BROTHERS and others ---Respondents

Civil Petition No.2158-L of 2001, decided on 27th March, 2003.

(On appeal from the judgment/order dated 8-5-2001 passed by the Lahore High Court, Lahore, in C.R. No.892 of 1990).

Constitution of Pakistan (1973)---

----Arts. 184 & 185---Powers of Supreme Court---Scope---Supreme Court had fullest power to do complete justice without fettering itself with any self-imposed restrictions, which are no longer necessary in the context of changed circumstances in which Court does now function.

Muhammad Riaz v. Surriya Jabeen 1985 SCMR 2066 ref.

Miss Yasmin Sehgal, Assistant Advocate-General, Punjab and Rao Muhammad Yusuf Khan, Advocate-on-Record for Petitioners.

Ch. M. Tufail, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Respondents.

Date of hearing; 27th March, 2003.

2005 S C M R 1487

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Javed Iqbal and Falak Sher, JJ

IKRAM HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.13-L of 2003, decided on 20th July, 2004.

(On appeal from the judgment dated 21-10-2002 passed by Lahore High Court, Multan Bench, Multan in Criminal Appeal No.136 of 2001).

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

----Ss. 9(c) & 29(d)---Constitution of Pakistan (1973), Art.185 (3)---Re­appraisal of evidence---Presumption---Failure to discharge the burden of proof of recovery against accused---Recovery of one kilogram and forty grams of Charas--Accused was employee at octroi post and narcotics was recovered from him at the post---Trial Court convicted accused but sentence of fourteen years of imprisonment awarded by Trial Court was reduced to seven years by High Court---Plea raised by the accused was that he recovered the narcotics from a person who managed to escape and he prepared a report regarding octroi evasion---Validity---Presumption under S.29(d) of Control of Narcotic Substances Act, 1997, would be that the person who was found in possession of narcotics had committed an offence unless otherwise proved---Accused failed to discharge the burden to show that he was not in possession of the narcotics and he Simply relied upon the report prepared by him---Accused was rightly found guilty for the commission of offence and judgment being unexceptionable admitted no interference by Supreme Court---Leave to appeal was refused.

Ch. Asghar Khadim, Advocate Supreme Court and Walayat Umar, advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 20th July, 2004.

2005 S C M R 1490

[Supreme Court of Pakistan]

Present: Javed Iqbal, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

MUHAMMAD FEROZ---Petitioner

Versus

DEPUTY DISTRICT OFFICER (EDUCATION) and others---Respondents

Civil Petition No.2808-L of 2002, decided on 7th March, 2003.

(On appeal from the judgment dated 25-6-2002 of the Punjab Service Tribunal, Lahore, passed in Appeal No.413 of 2002).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----R. 6(3)---General Clauses Act (X of 1897), S.21---Constitution of Pakistan (1973), Art.212(3) --Removal from service---Principle of locus poenitentiae---Applicability---Civil servant was Matric by qualification and was appointed as PTC teacher---Academic qualification was enhanced for appointment as PTC teacher from Matric with PTC to that of FA / FSc with PTC prior to the advertisement in newspaper for the post---Inadvertent omission regarding qualification appearing in the advertisement made in the newspaper was rectified by means of another advertisement published in newspapers making it abundantly clear that the prescribed qualification for PTC teacher would be FA and not Matric---Civil servant was appointed as such but he was removed from service after departmental proceedings under R.6(3) of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975--- Appeal against the removal was dismissed by Service Tribunal---Plea raised by the civil servant was that after having appointed, the service of the civil servant could not have been terminated on the principle of locus poenitentiae---Validity---Principle of locus poenitentiae could only be pressed into service to protect the legal rights based on lawful orders---Principle of locus poenitentiae was available to the Government or relevant authorities which were competent to make order and had power to undo it but such order could not be withdrawn or rescinded once it had taken legal effect and had created certain rights in favour of any individual---Civil servant could not be held guilty for misconduct because the wrong publication at first instance was made by the department itself---Civil servant was not guilty of misconduct and the petition was converted into appeal and penalty of removal from service imposed pursuant to the disciplinary action under R.6(3) of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, was converted to that of termination simpliciter from service due to lack of qualification---Appeal was disposed of accordingly.

Director-General v. Muhammad Abdul Latif 2003 SCMR 410; Pakistan v. Muhammad Himayatullah PLD 1969 SC 407; Chief Secretary v. Sher Muhammad Makhdoom PLD 1991 SC 973; Aman-ul-Haq v. P.P.S.C. PLD 1989 Lah. 196; Government of Sindh v. Niaz Ahmad 1991 SCMR 2293; Muhammad Nawaz v. Federation of Pakistan 1992 SCMR 1420. Abdul Haque Indhar v. Province of Sindh 2000 SCMR 907; Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883; Chairman, Selection Committee v. Wasif Zamir Ahmad 1997 SCMR 15 and Engineer-in-Chief Branch v. Jalaluddin PLD 1992 SC 207 rel.

Iqbal A. Qureshi, Advocate-on-Record for Petitioner.

Muhammad Hussain, A.E.O. for Respondents.

Date of hearing: 7th March, 2003.

2005 S C M R 1493

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Sardar Muhammad Raza Khan, JJ

COLLECTOR OF CUSTOMS and another---Petitioners

Versus

Messrs FATIMA ENTERPRISES LIMITED and others---Respondents

C.P.L.As. Nos.703-K and 704-K of 2003, decided on 30th March, 2004.

(On appeal from judgment of High Court of Sindh, Karachi, dated 27-5-2002 passed in C.P.Nos.D-350 and 351 of 1995).

Customs Act (IV of 1969)---

----S. 18---Constitution of Pakistan (1973), Art.185 (3)---Customs duty levy of---Measurement of oil at the time of import---Importer had a dispute regarding refund of duty---High Court in exercise of Constitutional jurisdiction directed the Authorities to take measurement of bulk oil in shore tank and not in vessel tank---Authorities contended that High Court could not decide questions of facts in its Constitutional jurisdiction because to accept such facts no cogent evidence was available on record and in such manner serious prejudice had been caused to the Authorities because if in future the authorities would be directed to take measurement of oil in shore tank, which tank remained in the control of consignees, there would be no check on the theft or pilferage and Customs Department would be deprived of the duty for which they were entitled according to Customs Act, 1969, and other prevalent laws---Authorities further contended that Division Bench of High Court had struck down the letter of Central Board of Revenue dated 7-3-1992 without any justification in law---Further contention by the Authorities was that Customs Act, 1969, itself provided adequate and alternate remedy to an aggrieved person but without availing the same, Constitutional petition involving the question of facts was not maintainable before High Court---Leave to appeal was granted by Supreme Court to consider the contentions of the Authorities.

Makhdoom Ali Khan, Attorney-General for Pakistan and Akhlaq Ahmad Siddiqui, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 30th March, 2004.

2005 S C M R 1496

[Supreme Court of Pakistan]

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

WAQAS AHMAD and another---Petitioners

Versus

THE STATE---Respondent

Criminal Petition No.149-L of 2003, decided on 10th April, 2003.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 4-2-2003 passed in Cr. Misc. No.422/B of 2003).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324/337-A(i)/148/149---Constitution of Pakistan (1973), Art.185(3)---Bail, refusal of---Complainant had, prima facie, explained the delay of 24 hours in lodging the F.I.R. by stating that he had been attending his injured brother who was brought first to hospital at Gujranwala which referred his case to Mayo Hospital, Lahore---Accused had been attributed specific role along with motive---Well-reasoned discretionary order declining bail to accused passed by High Court did not call for any interference---Leave to appeal was refused to accused by Supreme Court accordingly.

Malik Muhammad Azam Rasool, Advocate Supreme Court for Petitioners.

Abdul Qayyum Anjum, Advocate Supreme Court for the State.

A.H. Masood, Advocate Supreme Court for the Complainant.

Date of hearing: 10th April, 2003.

2005 S C M R 1497

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Falak Sher, JJ

AZHAR IQBAL and others---Petitioners

Versus

THE STATE---Respondent

Criminal Review Petition No.14-L of 2003 in Criminal Petition No.781-L of 2002, decided on 6th July, 2004.

(On review from the judgment dated 10-1-2003 in Cr.P. No.781-L of 2002 passed by this Court).

Constitution of Pakistan (1973)---

----Art. 188---Criminal Procedure Code (V of 1898), S.345---Penal Code (XLV of 1860), S.338-E---Review petition---Limitation---Review petition was barred by 130 days for which application for condonation of delay was filed by petitioner on grounds that efforts were being made for compromise between the, parties and that delay in filing of review petition had occurred due to optimum hope of compromise which was normally expected when a person was awarded capital punishment---Validity---Such plea could not be considered as sufficient cause for examining review on merits in view of fact that said plea could be agitated by petitioner before Trial Court as provided under S.338-E, P.P.C. and S.345, Cr.P.C. which had provided that Court could permit compounding of offence between parties and legal representatives of deceased---Review .petition being barred by time, was dismissed.

Ch. Naseer Ahmad Bhutta, Advocate Supreme Court and Muhammad Ozair Chughtai, Advocate-on-Record for Petitioners.

Nemo. for Respondent.

Date of hearing: 6th July, 2004.

2005 S C M R 1499

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

DODHA---Petitioner

Versus

AADIT and another---Respondents

Civil Petition for Leave to Appeal No.717/L of 2000, decided on 27th February, 2003

(On appeal from the judgment dated 28-1-2000 of the Lahore High Court, Bahawalpur Bench Bahawalpur, in Civil Revision No.169-D of 1996/BWP).

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

----S. 13---Constitution of Pakistan (1973), Art.185(3)---Right of pre-emption, exercise of---Failure to prove transaction as sale as well as requisite Talb---Concurrent findings of facts by the Courts below---Suit and appeal filed by pre-emptor was dismissed both by Trial Court and Appellate Court---Concurrent judgments were maintained by High Court in exercise of revisional jurisdiction---Validity Pre-emptor could not substantiate his stance that the disputed transaction was a sale---None of the witnesses appearing from the side of pre-emptor had, brought on record any convincing evidence to prove that it was a sale---Requisite Talb as mandated by S.13 of Punjab Pre-emption Act, 1991, had not been complied with---Question of fact after scanning the entire evidence brought on record had been determined by the two Courts below and the determination was maintained by High Court---Pre-emptor failed to point out any illegality or legal infirmity in the judgments warranting interference by Supreme Court---Leave to appeal was refused.

Riyasat Ali Chaudhry, Advocate Supreme Court with Mahmood A. Qureshi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 27th February, 2003.

2005 S C M R 1500

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Hamid Ali Mirza and Falak Sher, JJ

KABOOL KHAN---Petitioner

Versus

SHAMOON through L.Rs. and others---Respondents

Civil Petition No.2456-L of 2001, decided on 13th July, 2004.

(On appeal from the judgment/order dated 17-5-2001 passed by Lahore High Court, Lahore in Civil Revision No.285 of 2001).

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Art.89---Constitution of Pakistan (1973), Art. 185(3)---Declaration of title---Public document---Proof---Identification of property---Plaintiff claimed to be the owner in possession of disputed shop but defendants asserted that the shop had different number and the same was transferred to him---Suit was decreed by Trial Court in favour of plaintiff but Appellate Court accepted the appeal and the suit was dismissed---Judgment and decree passed by Appellate Court was maintained by High Court in exercise of revisional jurisdiction---Plea raised by the plaintiff was that documents produced by defendants and exhibited during trial could not be considered as the same were not per se admissible---Validity---Report produced by defendants could not be considered to be valid for the reason that High Court had decided the revision while not considering the report to be a valid one and maintained the judgment of Appellate Court in view of other evidence available on record including the admission made on behalf of defendants---Document which established the number of the disputed shop was issued by Settlement Authorities to prove the proprietary rights of the defendants over the shop---Plaintiff failed to produce any convincing documents of title except an unregistered sale-deed executed in his favour for a sale consideration of Rs.99----Such unregistered sale deed was not sufficient to prove proprietary rights of the plaintiff over the shop in dispute---High Court had rightly dismissed the revision filed by the plaintiff---Leave to appeal was refused.

S.M. Masud, Advocate Supreme Court and Mahmud-ul-Islam, Advocate-on-Record for Petitioner.

Shahzad Shaukat, Advocate Supreme Court and Tanvir Ahmed Khan, Advocate-on-Record for Respondents.

Date of hearing: 13th July, 2004.

2005 S C M R 1505

[Supreme Court of Pakistan]

Present: Munir A. Shaikh and Faqir Muhammad Khokhar, JJ

MIAN MUHAMMAD and others---Petitioners

Versus

PIR BAKHSH and others---Respondents

Civil Petitions Nos.1498-L and 1523-L of 2000, decided on 25th March, 2003.

(On appeal from judgment dated 4-4-2000 of the Lahore High Court, Multan Bench, passed in C.M. No.415-C of 1997 in C.R. No.194 of 1978 and C.M. No.277-C of 1997 in C.R. No.565 of 1969).

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

------S. 12(2)---Constitution of Pakistan (1973), Art. 185(3)---Application for setting aside of decree on the basis of fraud---Limitation---Both the parties were residents of same village---Petitioners filed application under S.12(2) C.P.C. on the ground that the plaintiff was a fictitious person---Application was dismissed by High Court being barred by limitation---Plea raised by the petitioners was that the application was filed from the date of knowledge of fraud---Validity---Supreme Court did not accept the plea of the petitioners that for such a long time they did not know that the plaintiff was non-existent---Leave to appeal was refused.

Islam Ali Qureshi, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing; 25th March, 2003.

2005 S C M R 1507

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Hamid Ali Mirza and Falak Sher JJ

MUHAMMAD ASLAM---Petitioner

Versus

MUHAMMAD SHAFIQUE and 3 others---Respondents

Criminal Petition No.762-L of 2002, decided on 14th July, 2004.

(On appeal from the judgment/order dated 29-7-2002 passed by Lahore High Court, Lahore in Criminal Appeals Nos.734 and 774 of 1997).

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

-----S. 302(b)-Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---Whenever an accused was acquitted of a criminal charge, he enjoyed double presumption of innocence---Interference in such judgment had to be made by carefully considering evidence on record.

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

---S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---Conflict was found between ocular testimony of both eye-witnesses, read with F.I.R. and medical evidence with regard to injuries allegedly caused by one of accused persons---Said accused had also been found innocent by Investigating Officer who had recommended for his discharge and report so filed by him was verified by Inspector General and D.I.G. Range (Crime)---No convincing evidence was available on record to saddle co-accused with liability of commission of murder of the deceased---In view of said contradictions in the ocular testimony and medical evidence, case of prosecution had become doubtful, benefit of which had to be extended to accused---Accused, in circumstances had rightly been acquitted of the charge---Supreme Court, in exercise of Constitutional jurisdiction under Art. 185(3) of the Constitution did not consider it appropriate to interfere in judgment of High Court.

Dr. Shaukat Hussain, Advocate Supreme Court and M. Ozair Chughtai, Advocate-on-Record (absent) for Petitioner.

Muhammad Riaz Lone, Advocate Supreme Court and A.H. Masood, Advocate-on-Record for Respondents Nos. 1 to 3.

Nemo for the State.

Date of hearing: 14th July, 2004.

2005 S C M R 1511

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

INSPECTOR-GENERAL OF POLICE and others---Petitioners

Versus

Dr. AFTAB AHMAD---Respondent

C.P.L.A. No.1904-L of 2000, decided on 7th April, 2003.

(On appeal from the order, dated 19-1-2000 passed by the Lahore High Court, Lahore in F.A.O. No.274 of 1995).

Arbitration Act (X of 1940)-----

----S. 17-Constitution of Pakistan (1973), Art. 185(3)--Award, making rule of Court---Non-payment of award money---Recommended amount was not paid by Police Department to the contractor who was made to run from pillar to post---Contractor was not only embroiled in uncalled for litigation by the department but was also deprived of his earned money for period as far back as year 1986---Contractor was constrained to file Constitutional petition where a former Inspector General of Police was appointed arbitrator with the concurrence of the parties who gave sufficient time to make the payment of amount to the contractor--Contractor was deprived of all his due amount for a period extending over more than a decade--Appeal against the rule of Court was dismissed by High Court---Validity---Department failed to point out any illegality in the judgment passed by the High Court as cogent reasons had been given while dismissing the appeal---Leave to appeal was refused.

Ali Akbar Qureshi, Advocate Supreme Court with Sh. Salah-ud-Din, Advocate-on-Record for Petitioners.

Riasat Ali Chaudhry, Advocate Supreme Court with M.A. Qureshi, Advocate-on-Record for Respondent.

Date of hearing: 7th April, 2003.

2005 S C M R 1513

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Tassadduq Hussain Jillani, JJ

MUHAMMAD TUFAIL---Petitioner

Versus

GHULAM HUSSAIN and others---Respondents

Civil Petition No.1903 of 2003, decided on 5th August, 2004.

(On appeal from the order dated 6-6-2003 passed by Lahore High Court, Lahore, in R.S.A. No.19 of 2000).

Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts.72 & 79---Constitution of Pakistan (1973), Art.185(3)---Specific performance of agreement to sell---Document, proof of---Concurrent finding of facts by the Courts below---Courts below had concurrently held that the defendant entered into agreement to sell with plaintiff and received the first instalment of the sale price-Defendant was to complete the sale and deliver possession by a specific date which he failed to do---Plaintiff produced two marginal witnesses to prove the agreement to sell and of the receipt---No tenable evidence was produced by the defendant to rebut the evidence led by plaintiff---Suit was decreed by Trial Court in favour of plaintiff and the judgment was maintained by High Court in exercise of appellate jurisdiction---Validity---No misreading or non-reading of evidence or any infirmity in the concurrent judgments was found by Supreme Court---No substantial question of law of general public importance was raised by the defendant---Leave to appeal was refused.

Imrana Baluch, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Petitioner.

Rafiq Javed Butt, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Respondents.

Date of hearing: 5th August, 2004.

2005 S C M R 1515

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

MUHAMMAD MAROOF---Petitioner

Versus

MUHAMMAD FAROOQ through L.Rs. and 8 others---Respondents

Civil Petition No.3649-L of 2002, decided on 5th May, 2003.

(On appeal from the judgment of Lahore High Court, Lahore, dated 29-6-2002 passed in C.R. No.766 of 2002).

Arbitration Act (X of 1940)---

----Ss. 14 & 17---Constitution of Pakistan (1973), Art.185(3)---Arbitration award---Non-signing of the award by all arbitrators---Out of three arbitrators, one disassociated himself from the proceedings---Award was passed by the remaining two arbitrators and the Court made the award as rule of the Court---Validity---Leave to appeal was granted by Supreme Court to consider; whether the submission of award with the signatures of two arbitrators was valid and was not in conflict with the terms of agreement according to which it should have been signed by the three arbitrators; and whether the award being beyond the scope of agreement between the parties could not be made rule of Court and the decree passed on the basis of award was nullity in law.

Muhammad Ramzan Chaudhry, Advocate Supreme Court and Mehmood A. Qureshi, Advocate-on-Record (absent) for Petitioner.

Malik Azam Rasool, Advocate Supreme Court for Respondent No.1-A.

Amjad Pervez, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record (absent) for Respondents Nos.5-6.

Date of hearing: 5th May, 2003.

2005 S C M R 1518

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Falak Sher, JJ

KARIM BAKHSH through L.Rs. and others---Petitioners

Versus

JINDWADDA SHAH and others---Respondents

Civil Petition No.2922-L of 2001, decided on 24th June, 2004.

(On appeal from the judgment dated 27-6-2001 passed by the Lahore High Court, Multan Bench, Multan in Regular Second Appeal No.121 of 1983).

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

----S. 100---Second appeal---Appreciation of evidence---Jurisdiction of High Court---When findings of two Courts below were at variance, High Court was' justified in appreciating the evidence to arrive at the conclusion as to which of the decisions was in accord with the evidence on record.

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

---Ss. 4 & 21---Constitution of Pakistan (1973), Art.185 (3)---Right of pre-emption, exercise of---Transaction, sale , or exchange---Determination---Transaction after filing of pre-emption suit---Effect--Per-emptor filed the suit and claimed his superior right of pre-emption on the suit-land---Vendees asserted that the transaction was not sale but it was exchange---Trial Court found the transaction as sale and decreed the suit in favour of pre-emptor--- Appellate Court found the transaction to be an exchange and accepted the appeal, resultantly the suit was dismissed---Second appeal was accepted by High Court and judgment and decree passed by Trial Court was restored---Validity---No land was given by vendees to the other side, and the transaction in favour of the other side stood cancelled vide mutation dated 22-7-1961---Vendees executed another exchange deed on 28-11-1961, and the second transaction was seven and half months after institution of pre-emption suit filed on 4-5-1961---Once the pre-emption suit was filed, no mala fide improvement could be made thereafter during the pendency of the suit---Trial Court and High Court were justified in holding that the transaction in question was a sale and the exhibition thereof as exchange was not a device but a disguise and was pre-emptable---Supreme Court declined to interfere with the judgment and decree passed by High Court in exercise of appellate jurisdiction---Leave to appeal was refused.

Nazeer Ahmad Qureshi, Advocate Supreme Court and Khan M. Bajwa, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.

Mian Allah Nawaz, Advocate Supreme Court with Mahmudul Islam, Advocate-on-Record for Respondents.

Date of hearing: 24th June, 2004.

2005 S C M R 1521

[Supreme Court of Pakistan]

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

TUFAIL MUHAMMAD through L.Rs. and others---Petitioners

Versus

Messrs SIDDIQUE TEXTILE MILLS LTD. and others---Respondents

Civil Petitions Nos.1151, 1152, 1228, 1229 and 1485-L of 2002, decided on 3rd April, 2003.

(On appeal from the judgment dated 11-2-2002 of the Lahore High Court passed in W.Ps. Nos.129-R of 1992, 165-R of 1992, 241-R of 1995, 106-R and 129 of 1992).

Constitution of Pakistan (1973)-----

----Art. 185(3)---Evacuee land---Allotment to temporary allottees---Leasing of disputed land to textile mill---Leave to appeal was granted by Supreme Court to consider; as to what was the scope of legal position of judgment of remand of Supreme Court passed in an earlier Constitutional petition; and whether textile mill was entitled to transfer of land after it had been held to be in breach of the conditions of lease.

S.M. Naseem, Advocate Supreme Court for Petitioners (in C.P. No.1151-L of 2002).

Nemo for Respondents (in C.P. No.1151-L of 2002).

Mian Saeed-ur-Rehman, Advocate Supreme Court for Petitioner (in C.P. No.1152-L of 2002).

Nemo for Respondents (in C.P. No.1152,L of 2002).

Mirza Masood-ur-Rehman, Advocate Supreme Court for Petitioner (in C.P. No.1228-L of 2002).

Nemo for Respondents (in C.P. No.1228-L of 2002).

Mirza Masood-ur-Rehman, Advocate Supreme Court for Petitioners (in C.P. No.1229-L of 2002).

Nemo for Respondents (in C.P. No.1229-L of 2002).

Miss Yasmin Sehgal, Assistant Advocate-General for Petitioners (in C.P. No.1485-L of 2002).

Nemo for Respondents (in C.P. No. 1485-L of 2002).

Date of hearing; 3rd April, 2003.

2005 S C M R 1524

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Hamid Ali Mirza and Falak Shar, JJ

ARSHAD MEHMOOD---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.526-L of 2002, decided on 14th July, 2004.

(On appeal from the judgment dated 10-4-2002 passed by the Lahore High Court, Lahore in Criminal Appeal No.461 of 2000).

Penal Code (XLV of 1860)---

----Ss. 306(c) & 308---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Dead body of deceased was recovered from house of accused where deceased was living with him as his wife, it was thus not possible to disbelieve the story of prosecution---Medical evidence had fully corroborated the statement of mother of deceased---Quality and not quantity of evidence was required to prove against the accused---Conviction of accused in circumstances, could be based on sole evidence of mother of deceased---Petitioner had stated that he was a poor person and being not able to make payment of Diyat amount in lump sum, he could be ordered to be released on bail so that he could arrange for payment of Diyat amount in instalments---Accused was released on bail subject to furnishing surety bonds equal to amount of Diyat which would be paid in equal 36 instalments to the satisfaction of the Trial Court after having served out the remaining period of sentence---Order of High Court being unexceptional, same admitted no interference of High Court---Petition for leave to appeal was dismissed accordingly.

Allah Bakhsh v. Shammi PLD 1980 SC 225 ref.

Ijaz Feroz, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 14th July, 2004.

2005 S C M R 1526

[Supreme Court of Pakistan]

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

WALI MUHAMMAD---Appellant

Versus

ELLAHI BAKHSH through L.Rs. and others---Respondents

Civil Appeals Nos.1263 to 1266 of 1996, decided on 8th April, 2003.

(On appeal from the judgment of Peshawar High Court, D.I. Khan Bench, dated 24-11-1994 passed in Civil Revisions Nos.33 to 36 of 1993 respectively).

(a) Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----S. 11---Constitution of Pakistan (1973), Art.185(3)---Allotment of land---Contention of the petitioner was that order passed by Settlement Authorities allotting suit land to respondents and subsequent issue of Provisional Transfer Order in their favour was without jurisdiction and void as on the date when allotment was made in favour of the respondents, the suit land was not available for allotment--Petitioner further contended that the order of Chief Settlement Commissioner canceling the allotment of petitioner was without 'lawful authority and illegal, had the effect of restoring the allotment of suit land in favour of the petitioner, which was permanently settled in his favour as far back on 31-8-1958 and as such no right could be claimed by the respondents on the basis of void order passed in their favour allotting the same land to them on 31-8-1969---Petitioner also contended that the Civil Court had the jurisdiction to examine the validity of the order passed by the Settlement Authorities transferring the land to respondents after the repeal of Displaced Persons (Land Settlement) Act, 1958, and as such the civil suit instituted by the petitioner for recovery of rent and possession against the respondents was ,competent---Leave to appeal was granted by Supreme Court to consider the contentions of the petitioner.

(b) Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----S. 10---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction of High Court---Order passed by Settlement Authorities, assailing of---Jurisdiction of civil Courts---Scope---Evacuee laws were repealed with effect from 1-7-1974 and before repeal of evacuee laws, order passed by Settlement Authorities under Displaced Persons (Land Settlement) Act, 1958, could not be challenged before the civil Courts due to bar of jurisdiction under the relevant statutes and the civil suit was not be maintainable for adjudication of the disputes arising out of such orders---Aggrieved person could invoke the Constitutional jurisdiction of High Court against the orders passed by Settlement authorities.

(c) Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----S. 11---Specific Relief Act (I of 1877), S.8---Civil Procedure Code (V of 1908), 0.I, R.10---Recovery of possession---Restoration of allotment--Order of Chief Settlement Commissioner, setting aside of---Necessary party---Non-impleading of subsequent allottee of disputed property---Effect---Property in question was allotted to plaintiff on 13-8-1958---Settlement Authorities cancelled the allotment on 21-9-1963, on the ground that the suit land was situated within urban area while claim of the plaintiff was verified in respect of the rural area---During the proceedings before Chief Settlement Commissioner, the suit land was allotted to defendants on 31-8-1969 and the order of cancellation was finalized by Chief Settlement Commissioner on 25-5-1974---High Court in exercise of Constitutional jurisdiction on 6-3-1985, restored the allotment in favour of the plaintiff who on the basis of the order of High Court filed civil suit for recovery of possession---Trial Court decreed the suit filed by plaintiff and the judgment and decree was maintained by Appellate Court---High Court in exercise of revisional jurisdiction set aside the judgments and decrees passed by the Courts below---Plea raised by the plaintiff was that the land in question was not available for allotment to defendants and they were unauthorized occupants---Contention of the defendants was that the order of High Court in Constitutional jurisdiction was passed in their absence as they were not party to the proceedings---Validity---Plaintiff filed Constitutional petition to challenge the order of Chief Settlement Commissioner through which his allotment was cancelled and no relief was sought against the defendants, therefore, they were not required to be impleaded as party in the Constitutional petition---For the decision of dispute between Settlement department and plaintiff, the presence and participation of defendants in the proceedings was not necessary---Order of Settlement Authorities by virtue of which the property in question was transferred to the defendants was a void order and the same had no legal effect---Defendants having no right to retain the possession of the property were deemed to be unauthorized occupants---Setting aside of order of Chief Settlement Commissioner by High Court, the allotment of plaintiff in original as it existed on 13-8-1958, stood restored and all subsequent orders passed by Settlement Authorities became ineffective---Judgment passed by High Court in exercise of revisional jurisdiction was set aside and judgment and decree passed by Trial Court and affirmed by Appellate Court in appeal was restored---Appeal was allowed.

M. Sardar Khan, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant.

Bilal, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-record for Respondents.

Date of hearing: 8th April, 2003.

2005 S C M R 1534

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Falak Sher, JJ

Mst. KANEEZAN BIBI and others---Petitioners

Versus

MUHAMMAD RAMZAN and others---Respondents

Civil Petition No.2120-L of 2003, decided on 17th June, 2004.

(On appeal from the judgment dated 25-7-2003 passed by the Lahore High Court, Lahore in Civil Revision No.1853 of 1992).

Specific Relief Act (I of 1877)---

----S. 42---Muslim Family Laws Ordinance (VIII of 1961), S.4---Constitution of Pakistan (1973), Art.185 (3)---Declaration of title---Limitation---Legal heirs of Muslim pre-deceased son---Entitlement---Plaintiffs were daughters of Muslim pre-deceased son and mutation of inheritance to the extent of their Sharai share was attested---Defendant who was one of the sons of the deceased owner of the suit property claimed to have purchased the suit property from his father in his life time---Plaintiffs sought declaration of title to the extent of their Sharai share and Trial Court decreed the suit in favour of plaintiffs---Judgment and decree passed by Trial Court was set aside by Appellate Court---High Court in exercise of revisional jurisdiction maintained the judgment and decree passed by Appellate Court---Plea raised by the defendants was that the suit was barred by limitation---Validity---Question of limitation was not attracted at all because through inheritance mutation dated 23.3.1979, the plaintiffs were granted due share and hence they were never supposed to become alarmed about anything which was never in their knowledge---Even otherwise, the plaintiffs had become co-sharers in the property to the extent of their Sharai share the moment their grandfather died and hence could not have agitated any cause unless the right was denied---From such knowledge that happened to be obtained in early 1980, the present suit of plaintiffs filed on 22-11-1980 was well within time---Defendant had sold the property on 12-4-1980 and therefrom, as well, the suit was within time---Supreme Court found that nothing remained unusual till the life time of grandfather and thereafter everything was manoeuvred only to deprive the daughters of predeceased son of their Sharai share of inheritance---Supreme Court converted the petition for leave to appeal into appeal and the judgment passed by High Court was set aside and that of the Trial Court was restored---Plaintiffs were declared to be the legal heirs of their grandfather to the extent of 1/5th share---Appeal was allowed.

Ijaz Feroze, Advocate Supreme Court, Ghulam Sabir, Advocate Supreme Court with Mehmoodul Islam, Advocate-on-Record for Petitioners.

Syed Kaleem Ahmed Khurshid, Advocate Supreme Court with Faiz-ur-Rehman, Advocate-on-Record for Respondents.

Date of hearing: 17th June, 2004.

2005 S C M R 1537

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Actg. CJ

M.A. HAMEED FAIZI and others---Petitioners

Versus

THE STATE---Respondent

Cr. M.A. No.246 of 2002 in Criminal Petition No.704-L of 2002, decided on 9th September, 2002.

Criminal Procedure Code (V of 1898)---

----S. 426---National Accountability Ordinance (XVIII of 1999), Ss.9(vi) & 10---Interim bail, grant of---Investigating Officer in his evidence had stated that nothing was available on record against the accused and according to the report submitted to the Registrar Cooperative Societies, Punjab by NICFC nothing was found outstanding against them and they were not involved in the working of NICFC---No allegation was made against the accused that in the capacity of Honorary Directors they did not disburse any amount of the National Industrial Cooperative Finance Corporation Ltd. to any person as loan or that they had availed any loan for themselves and for any other person to get personal benefit or caused any financial loss to the Society (NICFC)--Trial Court in its judgment had only mechanically observed that the accused appeared to have not paid the interest although they were not alleged to have got any loan---Accused also were not in any manner related to the principal accused, but they had been convicted merely on the ground that they should also suffer for keeping his company---Aforesaid contentions raised on behalf of accused, prima facie, had considerable force---Interim bail was allowed to accused in circumstances.

Ashtar Ausaf Ali, Advocate Supreme Court for Petitioners.

Naveed Rasool Mirza, Prosecutor-General, NAB with M.S. Khattak, Advocate-on-Record for Respondent.

2005 S C M R 1539

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Syed Deedar Hussain Shah, JJ

ABDUL HALEEM LAKHO---Petitioner

Versus

ABDUL KARIM alias KARIM BUX and others---Respondents

Crl.P.L.A. No.39-K of 2003, decided on 4th May, 2004.

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

----Ss. 498 & 497(5)---Penal Code (XLV of 1860), S.302/34---Constitution of Pakistan (1973), Art.185(3)---Petition for cancellation of bail---Discretion exercised by High Court in confirming interim pre-arrest bail after hearing parties, did not suffer from .any apparent illegality or -arbitrariness---High Court had weighed facts and circumstances of case carefully for the limited purpose of grant or otherwise of bail, which did not warrant any interference by Supreme Court in exercise of its jurisdiction---Accused persons during last more than two years having enjoyed concession of bail without misusing it, should not be put behind the bars by recalling bail order---Leave to appeal against impugned order, was declined.

Abdul Mujeeb Pirzada, Advocate Supreme Court and Akhlaq Ahmad Siddiqui, Advocate-on-Record for Petitioner.

Khawaja Naveed Ahmad, Advocate Supreme Court for Respondents Nos.1 to 5.

Dr. Qazi Khalid Ali, Additional Advocate-General, Sindh for the State.

Date of hearing: 4th May, 2004.

2005 S C M R 1542

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Actg. C.J., Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

MUHAMMAD RAMZAN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MULTAN and others---Respondents

Writ Petition No. 2065-L of 2004, decided on 28th January, 2005.

(On appeal against the judgment dated 8-6-2004 passed by the Lahore High Court, Multan Bench in Writ Petition No.2483 of 2004).

Arbitration Act (X of 1940)---

----S. 30---Constitution of Pakistan (1973), Art.185(3)---Award, setting aside of---Misconduct---Proof---Factual controversy--Parties preferred their dispute to arbitrator arising out of civil suit filed by petitioner---Statements of both the parties were recorded by arbitrator and thereafter award was given--Trial Court after taking into consideration the objections filed by the parties made the award rule of the Court---Revision and Constitutional petition filed by petitioner before Appellate Court and High Court, respectively were dismissed---Validity---Petitioner failed to make out a case of misconduct on the part of arbitrator before Trial Court, therefore, no interference was made by High Court---Supreme Court declined to examine factual controversy under Art.185(3) of the Constitution---Leave to appeal was refused.

Ch. Khan Muhammad Bajwa, Advocate Supreme Court and Muhammad Rafi Siddiqui, Advocate-on-Record for Petitioner.

Nemo for respondents Nos.1, 3 and 6.

M. Zahid Abbasi, Advocate Supreme Court for Respondent No.2.

Date of hearing: 28th January, 2005.

2005 S C M R 1544

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi and Saiyed Saeed Ashhad, JJ

THE STATE through Advocate-General, Sindh High Court of Karachi---Appellant

Versus

Raja ABDUL REHMAN---Respondent

Criminal Appeal No.227 of 1997, decided on 9th June, 2005.

(On appeal from the judgment, dated 26-4-1995 of the High Court of Sindh Karachi passed in Criminal Acquittal Appeal No.26 of 1995).

(a) Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Arts. 3/4---Criminal Procedure Code (V of 1898), S.249-A---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to the State to consider whether the acquittal of one accused in the case was proper on an application under S.249-A, Cr.P.C. at a stage when the entire prosecution evidence had been completed and the case was fixed for the statement of the accused, especially when the trial against other accused in the case was continuing.

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

----Art. 185---Appellate jurisdiction of Supreme Court---Court competent to examine points other than those on which leave was granted---Supreme Court in exercise of its power to do complete justice is competent to examine points other than those on which leave was granted---Normally or in ordinary course, Supreme Court would not permit raising of point/question not mentioned in the leave granting order, but in exceptional cases for doing complete justice it would permit or allow the appellant to agitate a point or questions not mentioned in the leave granting order.

Qadir Bakhsh and 10 others v. Kh. Nazim-ud-Din Khan and 4 others 2001 SCMR 1091; Qudratullah v. Government of Balochistan and another 1990 SCMR 1246; State through Secretary, Ministry of Interior v. Ashiq Ali Bhutto 1993 SCMR 523; Abbas v. The Honourable Chief Justice through the Registrar, High Court of Sindh, Karachi and 2 others 1993 SCMR 715; Chaudhry Muhammad Saleem v. Fazal Ahmad and 2 others 1997 SCMR 315; Haji Dilber v. Shah Muhammad and 3 others 1998 PCr.LJ 572; Messrs M.Y. Electronics Industries (Pvt.) Ltd. through Manager and others v. Government of Pakistan and others 1998 SCMR 1404; Pakistan State Oil Company Limited v. Abdul Khalique Gandakwala 1999 SCMR 366 and Khushdil and 3 others v. State PLD 1981 SC 582 ref.

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

----S. 249-A---Power to acquit accused at any stage---Application and scope---Application under S.249-A, Cr.P.C. can be filed, taken up for hearing and decided at any time or stage of the proceedings---Words "at any stage" denote that such application can be filed even before recording of prosecution evidence, during recording of evidence or when such exercise is over---Although there is no bar for an accused person to file application under S.249-A, Cr.P.C. at any stage of the proceedings of the case, yet the facts and circumstances of the prosecution case will have to be kept in mind and considered in deciding the viability or feasibility of filing an application at any particular stage---Special or peculiar facts and circumstances of a prosecution case may not warrant filing of an application at a stage when the entire prosecution evidence had been recorded and the case fixed for recording of statement of the accused under S.342, Cr.P.C.

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

----Ss. 249-A, 265-K & 561-A---Provisions not to be used for deciding the fate of a criminal case---Usually a criminal case should be allowed to be disposed of on merits after recording of prosecution evidence, statement of accused under S.342, Cr.P.C. and under S.340(2), Cr.P.C. if so desired and hearing the arguments of both the parties---Provisions of S.249-A, 5.265-K & S.561-A of the Code of Criminal Procedure should riot normally be pressed into action for deciding the fate of a criminal case.

Bashir Ahmad v. Zafar ul Islam PLD 2004 SC 298 and Muhammad Sharif v. The State PLD 1999 SC 1063 ref.

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

----S. 561-A---Inherent powers of High Court---Quashing of proceedings-Principles-When the law provides a detailed inquiry into offences for which an accused has been sent up for trial, then ordinarily and normally the procedure prescribed by law for deciding the fate of the' case should be followed unless some extraordinary circumstances are shown to exist to abandon the regular course and follow the exceptional routes---Such exceptional routes can also be one envisaged by S.249-A, Cr.P.C.

(f) Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Arts. 3/4---Criminal Procedure Code (V of 1898), S.249-A---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal of accused under S.249-A, Cr.P.C.---Place from where the huge quantity of narcotics, was recovered and seized belonged to the accused and he had been frequently seen visiting the place of recovery---Co-accused were the employees of the accused---Such evidence required an explanation from the accused---Magistrate, therefore, in the peculiar circumstances of the case should not have decided the application of accused under S.249-A, Cr.P.C. at such stage when the case had reached its last stage---Even otherwise the second application of the accused under S.249-A, Cr.P.C. had been rejected on the grounds that correct assessment of the evidence could only be made at the conclusion of the case and that the ingredients of S.249-A, Cr.P.C. were not fulfilled-This order having not been appealed against in High Court had attained finality---Order of acquittal of accused on the third application under S.249-A, Cr.P.C., thus, was illegal and void ab initio---Moreover, adverse remarks, observations and. inferences drawn by the Magistrate relating to the prosecution witnesses and their evidence, which if considered in totality would have the effect of damaging the prosecution case against the co ­accused---Order of acquittal of accused under S.249,A, Cr.P.C. would not have the same sanctity as order of acquittal on merits and the principles applicable to second category of acquittal would not apply to first category of acquittal---High Court had not adverted to such very important and material aspects of the case and had decided the appeal in a very cursory and hasty manner and its order was liable to be set aside on this ground alone---Impugned order was consequently set aside with the direction to Magistrate to proceed with the case of accused and that of co-accused together from the stage at which the case stood when the application of the accused under S.249-A, Cr.P.C. was decided.

Qadir Bakhsh and 10 others v. Kh. Nazim-ud-Din Khan and 4 others 2001 SCMR 1091; Qudratullah v. Government of Balochistan and another 1990 SCMR 1246; State through Secretary, Ministry of Interior v. Ashiq Ali Bhutto 1993 SCMR 523; Abbas v. The Honourable Chief Justice through the'Registrar, High Court of Sindh, Karachi and 2 others 1993 SCMR 715; Chaudhry Muhammad Saleem v. Fazal Ahmad and 2 others 1997 SCMR 315; Haji Dilber v. Shah Muhammad and 3 others 1998 PCr.LJ 572; Messrs M.Y. Electronics Industries (Pvt.) Ltd. through Manager and others v. Government of Pakistan and others 1998 SCMR 1404; Pakistan State Oil Company Limited v. Abdul Khalique Gandakwala 1999 SCMR 366; Khushdil and 3 others State PLD 1981 SC 582; Bashir Ahmad v. Zafar-ul-Islam PLD 2004 SC 298; The State v. Muhammad Nawaz 2002 SCMR 634; Muhammad Sharif v. The State PLD 1999 SC 1063; Muhammad Khalid Mukhtar v. The State through Deputy Director, F.I.A. (C.B.A.), Lahore PLD 1997 SC 275; Sheroo Khan v. Kaloo Khan and 8 others 1992 PCr.LJ 110; Shabana Mustafa v. Dr. Muhammad Khalid and others PLD 2001 Lah. 98; Jehan Shah and 2 others v. Haji Qalandar Khan and another 1990 PCr,LJ 638; Badaruddin v. Mehr Ahmad Raza, Additional Sessions Judge, Jhang and 6 others PLD 1993 SC 399; Zahoor ud Din v. Khushi Muhammad and 6 others 1998 SCMR 1840; Sultan Mahmood Chandio and another v. The State 1995 PCr.LJ 874; The State v. Asif Ali Zardari and another 1994 SCMR 798; Syed Shakir Hussain and others' v. The State and others 1986 SCMR 1645; Abdul Sattar and others v. The State 1992 PCr.LJ 2054 and Sher Muhammad v. The State and 4 others 1994 SCMR 549 ref.

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

---Ss. 249-A & 265-K---Appeal against acquittal---Appeal against acquittal of accused under S.249-A or S.265-K, Cr.P.C. and against his acquittal after trial---Principles---In appeal or revisional proceedings, the order of acquittal of accused under S.249-A or 265-K, Cr.P.C. would not have the same sanctity as orders of acquittal on merits---Consequently, the principles which are to be observed and applied in setting aside the concurrent findings of acquittal or the principle relating to the presumption of double innocence when an accused is acquitted after a full-fledged inquiry and trial, would not apply to acquittals under S.249-A or 265-K, Cr.P.C.

Dr. Qazi Khalid Ali, Addl. A.-G. Sindh for Appellant.

Ch. Aitzaz Ahsan, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondent.

Date of hearing: 4th May, 2005.

2005 S C M R 1557

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

SHER BAHADUR KHAN and others---Appellants

Versus

MUHAMMAD NAWAZ KHAN and others---Respondents

Civil Appeal.'No.662 of 2002, decided on 3rd February, 2005.

(On appeal from the judgment dated 11th June, 1998 passed by the Peshawar High Court, Circuit Bench, D.I. Khan, in Civil Revision No.61 of 1997).

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

----Arts. 61 & 84---Specific Relief Act (I of 1877), S.42-Declaration of title---Concurrent findings of fact by the Courts below---Execution of agreement---Proof---Comparison of signatures and payment of consideration amount--Plaintiffs claimed to be the owners of suit land on the basis of agreement in their favour executed by the owner---Original agreement deed as well as certain other relevant documents were sent to handwriting expert by Trial Court---Report of handwriting expert revealed that the signature of executant on the agreement deed was bogus---Trial Court itself had also compared the signature of executant with the one available on the agreement deed and found that the same were dissimilar to the one put on the questioned agreement deed---Even payment of consideration was not proved---Material contradictions in the statements of plaintiffs witnesses were found---Trial Court dismissed the suit and the judgment was upheld by Appellate Court as well as by High Court--Validity---All the three Courts recorded concurrent findings of fact based on the evidence on record---No misreading or non-reading of material, evidence was pointed out and judgment passed by High Court did not suffer from any legal or factual infirmity to warrant interference---Appeal was dismissed.

Saeed Beg, Advocate Supreme Court and M. Ismail Fehmi, Advocate-on-Record (absent) for Appellants.

Haji Muhammad Zahir Shah, Advocate-on-Record for Respondents.

Date of hearing: 3rd February, 2005.

2005 S C M R 1560

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and M. Javed Buttar, JJ

Mian ABDUL QADEER---Petitioner

Versus

GOVERNMENT OF PAKISTAN and others---Respondents

C.P.L.A. No.1258-L of 2003, decided on 17th December, 2004.

(On appeal from the judgment dated 5-5-2003 passed by Federal Service Tribunal, Islamabad in Appeal No.1657(K)/CE of 2001).

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----S.3---House Building Finance Corporation Service Regulations, 1957, Regln. No.15--- Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Dismissal from service---Fixation of seniority-Misconduct-Civil servant was dismissed from service on the allegation that. he being dissatisfied with the seniority list, made repeatedly representations and finally got the list corrected---Authorities, while considering such representations as act of misconduct initiated proceedings and dismissed the civil servant from service under S.3 of Removal from Service (Special Powers) Ordinance, 2000---Order passed by the authorities was maintained by Service Tribunal---Validity---Merely because civil servant kept on representing against the seniority list and got it restored in year 1998, with effect from the date of his appointment could not lead to the conclusion that he was guilty of gross misconduct, collusion and illegal manipulations---Collusive colleagues of the competent authority were never proceeded against under the Efficiency and Discipline Rules---No evidence surfaced for establishing misconduct and manipulations---No charge of any embezzlement, fraud, corruption and forgery nor the same were ever proved against the civil servant---Revised seniority list issued on 10.2.1990, had attained finality because the civil servant's representation against the same was rejected by Appellate Authority on 2.4.1992, which order was not set aside or modified by any higher competent Executive Authority and was not assailed before any competent judicial ..forum---Issue of seniority had become past and closed---Judgment passed by Service Tribunal was set aside and the civil servant was reinstated in service---Seniority list of the civil servant would be in accordance with the revised seniority list issued on 10.2.1990 and departmental promotees, who were appointed in the same calendar year in which the civil servant was appointed directly, would rank senior to him---Appeal was allowed.

Abdul Aziz Khan v. The Postmaster-General, Southern Punjab Circle, Lahore 2000 PSC 1248; Inspector-General of Police, AJ&K and others v. Zaheer-ud-Din Qureshi 2002 PLC (C.S.) 1246; PLD 1987 SC 1; 1991 SCMR 311; Agricultural Development Bank of Pakistan v. Muhammad Anwar Bajwa and others 1994 SCMR 852; Aslam Warraich and others v. Secretary, Planning and Development Division and 2 others 1991 SCMR 2330; WAPDA v. Muhammad Riaz Butt, Ex. LS-II 1993 SCMR 1134 and Chief Director, Central Directorate of National Savings, Islamabad and another v. Rahat Ali Sherwani 1996 SCMR 248 ref.

Muhammad Akram Sheikh, Senior Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.

Ms. Naheeda Mehboob Elahi, Deputy Attorney-General for Pakistan for Respondent No.1.

Hashmat Habib, Advocate Supreme Court with Akram Tariq, Chief Manager, H.B.F.C. for Respondent No.2.

Date of hearing; 7th December, 2004.

2005 S C M R 1568

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Hamid Ali Mirza, JJ

HAROON RASHEED and 6 others---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No. 78 of 2004, decided on 30th May, 2005.

(On appeal from the judgment, dated 29-4-2002 in Criminal Appeal No. 308-T of 1999, Criminal Appeal No.33 of 2000 and Criminal Revision No. 14 of 2000 passed by the Lahore High Court).

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

----Ss. 302(b)/149, 460/149 & 148---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to accused for reappraisal of the evidence as to whether High Court had failed to appraise the evidence according to the principles laid down by Supreme Court for safe administration of justice in criminal cases, to consider the pleas raised, that the ocular testimony being not confidence inspiring and unimpeachable in nature, could not form the basis of conviction; that the points raised before the High Court were not attended to in the judgment; that the eye-witnesses were not present at the place of occurrence at the relevant time; that the motive was remote being seventeen years prior to the incident and that none from the inmates of the house was produced as witness in the case.

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

---Ss. 302(b)/149, 460/149 & 148---Appraisal of evidence---F.I.R. was promptly lodged---No strong reason was forthcoming to falsely implicate the accused in the case instead of real culprits---Ocular testimony was confidence inspiring and unimpeachable and was corroborated by medical evidence---Inaccuracy in the site-plan could not take away the probative force of the ocular evidence---Absence or weakness of motive also could not make the prosecution case false or doubtful in the presence of strong, reliable and confidence inspiring evidence on record---No material inconsistencies coming into conflict with the material probabilities militating against the credibility of witnesses justifying rejection of their testimony, had been pointed out on behalf of defence---Recovery of crime weapons and empties were pieces of evidence of corroboration and even if recovery was not proved in the presence of reliable and unimpeachable ocular testimony and other circumstantial evidence, it would not adversely affect the prosecution case---Weakness or absence of motive could not be a ground for awarding lesser sentence---Three young persons had been done to unnatural death brutally as firing squad with dangerous fire-arms like kalashnikov and Rifles and normal sentence of death was just and proper---Abscondence of accused being a strong corroborative evidence, had further supported the case of prosecution about his implication in the commission of crime---Convictions and sentences of accused were upheld in circumstances.

Said Shah v. State NLR 1988 Crl. 381(b); Wahid v. The State PLD 2002 SC 62; Sardar Khan and 3 others v. The State 1998 SCMR 1823; Muhammad Mansha v. The State 1992 SCMR 273; Abdul Majeed v. The State 1992 SCMR 379; Syed Mushtaq Ahmad v. Siddiqullah PLD 1975 SC 160; Abdul Rashid v. Umid Ali PLD 1975 SC 227; State v. Sobharo 1993 SCMR 585; Syed Hamid Mukhtar Shah v. Muhammad Azam 2005 SCMR 427; Ibrahim v. The State 1996 SCMR 773; Mansha and others v. The State PLD 1971 Lah. DB 781; Asghar v. The State PLD 1958 W.P. Lah. 395; Ghulam Hussain v. The State 1984 PCr.LJ 1807; Chakar and another v. The State 1971 PCr.LJ 1121 and Beekho alias Imam Bux and 2 others v. The State 1973 PCr.LJ 896 ref.

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

----Ss. 302(b)/149, 460/149 & 148---Motive, absence of---Effect---Absence of motive or its weakness would not come in the way of prosecution if there is otherwise strong, confidence inspiring, unimpeachable and reliable evidence in support of prosecution case, because motive is always the state of mind of the accused which cannot be proved by ocular testimony as a number of such incidents appear to occur without any motive to the knowledge of the victim.

Syed Mushtaq Ahmad v. Sidduiqullah PLD 1975 SC 160; Abdul Rashid v. Umid Ali PLD 1975 SC 227; State v. Sobharo 1993 SCMR 585; Syed Hamid Mukhtar Shah v. Muhammad Azam 2005 SCMR 427 ref.

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

---Ss. 302(b)/149, 460/149 & 148---Appreciation of evidence---Discrepancies---Effect---Material discrepancies alone which come in conflict with the material probabilities and militate against the credibility of witnesses, justify the rejection of testimony.

Abdul Rashid v. Umid Ali PLD 1975 SC 227 ref.

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

---Ss. 302(b)/149, 460/149 & 148---Medical evidence---Time of death determined through contents of stomach not reliable,--Circumstances may vary the time and digestion of food---Contents of stomach do not, by themselves, provide the necessary information for determination of time of death---State of digestion of the stomach is not a reliable test for fixing the hours of death.

Ibrahim v. The State 1996 SCMR 773; Mansha and others v. The State PLD 1971 Lah. 781 and Asghar v. The State PLD 1958 (W.P.) Lah. 395 ref.

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

----Ss. 302(b)/149, 460/149 & 148---Sentence--Motive---Weak or unproved motive cannot be a ground for awarding lesser sentence as the same is always found to be in the mind of the assailant.

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

---Ss.302(b)/149, 460/149 & 148---Appreciation of evidence---Abscondence of accused---Corroborative value---Abscondence of accused immediately after the occurrence is a strong piece of corroborative evidence.

Chakar and another v. The State 1971 PCr.LJ 1121 and Beekho alias Imam Bux and 2 others v. The State 1973 PCr.LJ 896 ref.

Kh. Sultan Ahmad, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellants.

Sardar Muhammad Ishaque Khan, Senior Advocate Supreme Court for Complainant.

Raja Saeed Akram, A.A.-G. Punjab for Respondent/the State.

Dates of hearing: 28th to 30th March, 2005.

2005 S C M R 1583

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Faqir Muhammad Khokhar and M. Javed Buttar, JJ

SARDAR ALI---Petitioner

Versus

WAZIR KHAN---Respondent

Civil Petition No.2960-L of 2004, decided on 24th December, 2004.

(On appeal from the order dated 15-9-2004 of the Lahore High Court, Lahore passed in Civil Revision No.2285 Of 2004).

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

------S. 12---Qanun-e-Shahadat (10 of 1984), Art.72---Constitution of Pakistan (1973), Art. 185(3)-Specific performance of agreement to sell---Agreement, proof of---Concurrent findings of fact by the Courts below---Plaintiff claimed to have purchased the suit property by payment of Rs.1,00,000 out of total sale consideration of Rs.1,25,000 whereafter agreement to sell was executed---Defendant denied having executed any agreement and alleged the same as forged document---Scribe of agreement when appeared as plaintiff's witness, failed to furnish trustworthy evidence to establish that the transaction in respect of sale of land took place between the parties in pursuance whereof, the plaintiff paid Rs.1,00,000 out of total sale consideration of Rs.1,25,000---Trial Court dismissed the suit and judgment was maintained by Appellate Court as well as by High Court in exercise of revisional jurisdiction---Validity---As the agreement to sell was not proved on record according to law, therefore, Supreme Court declined to take any exception to the judgment which was based on correct appreciation of evidence available on record---Leave to appeal was refused.

Muhammad Tahir Ch., Advocate Supreme Court and Mehmood­ul-Islam, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 24th December, 2004.

2005 S C M R 1585

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Mian Shakirullah Jan, JJ

ALI KHAN---Petitioner

Versus

THE STATE---Respondent

Jail Petitions Nos.328 and 329 of 2003, decided on 17th February, 2005.

(On appeal from the judgments dated 30-7-2003 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in Criminal Appeals Nos.97/J and 98/J of 1998 and Murder References Nos.472 and 473 of 1998).

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

-----S. 302(b)-Constitution of Pakistan (1973), Art.185(3)---Parties being close relatives and the incident having occurred in broad-daylight, identification of accused could have posed no problem for the eye­witnesses---Presence of the complainant, the three deceased persons and the eye-witnesses at the crime spot was reasonable and believable---Eye­witnesses had no motive or enmity for false implication of accused in the case of triple murder---Claim of accused that the three deceased had been killed by some proclaimed offenders had been rightly rejected by the Courts below---Crime-empties found at the 'spot were proved to have been fired from the rifle recovered from the accused---Shortly after the murders of the said three deceased, the accused killed the fourth deceased lady in her house---Complainant being the son of the deceased and living with her was the natural witness of this occurrence---Motive for the incident was also brought on record---Rifle recovered from the accused had also matched with the crime-empty secured from the second place of occurrence---Ocular account furnished by the complainant was reliable---Conclusions reached by the Courts below were unexceptionable and did not admit of any interference even on the quantum of punishment---Leave to appeal was refused to accused in both the petitions in circumstances.

Syed Ali Hassan Gillani, Advocate Supreme Court for, Petitioner (in Jail Petition No.328 of 2003).

M. Zaman Bhatti, Advocate Supreme Court for Petitioner (in Jail Petition No.329 of 2003).

Nemo for the State.

Date of hearing: 17th February, 2005.

2005 S C M R 1588

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

Mst. BARAM POSH BIBI and 7 others---Appellants

Versus

Pir MUHAMMAD KHAN and 7 others---Respondents

Civil Appeal No.661 of 2000, decided on 2nd February, 2005.

(On appeal from the judgment dated 19th April, 1999 of the Peshawar High Court, Peshawar passed in Civil Revision No.502 of 1997)

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

----Ss. 13 & 24---Pre-emption suit---Non-deposit of one third pre-emption money---Trial Court on 14.7. 1996, made an order for deposit of pre-emption money but pre-emptors did not deposit the same and the suit was dismissed on 26.11.1996---Judgment and decree passed by Trial Court was maintained by Appellate Court as well as by High Court in exercise of revisional jurisdiction---Validity---Vendees filed an application on 14.7.1996, for dismissal of the suit on the ground of failure to deposit the requisite one third of pre-emption money---Same could not provide a valid justification to the pre-emptors for non-compliance of order dated 14.7.1996 passed by Trial Court---Judgment of High Court was just and fair to which no exception could be taken by Supreme Court---Appeal was dismissed.

Zahoor Qureshi, Advocate Supreme Court for Appellants.

Syed Safdar Hussain, Advocate-on-Record for Respondents.

Date of hearing: 2nd February, 2005.

2005 S C M R 1590

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Falak Sher, JJ

COLLECTOR OF SALES TAX and others---Petitioners

Versus

Messrs MEDORA OF LONDON LTD. and others---Respondents

Civil Petitions Nos.3382-L and 3383-L of 2004, decided on 29th December, 2004.

(On appeal from the judgment dated 18-10-2004 of the Lahore High Court, Lahore, passed in Writ Petitions Nos.12309 and 12310 of 2003).

Sales Tax Act (VII of 1990)-----

-----Ss. 38, 40 & 40-A---Constitution of Pakistan (1973), Art.185(3)---Scheme of the Sales Tax Act, 1990 prima facie emerging from Ss.38, 40 & 40-A, Sales Tax Act, 1990---Powers conferred by Ss.38, 40 & 40-A and others on the competent officers in the said connection required an. authoritative pronouncement and it was needed to be determined whether these provisions could be said to be an encroachment on any alleged Constitutional guarantee especially when all Constitutional guarantees were subject to reasonable restrictions imposed by law and question whether High Court could prohibit the direct or indirect use of any material in any proceedings under the Sales Tax Act, 1990 which material had been collected in pursuance of an exercise of powers under Ss.38, 40 & 40-A of the Act which allegedly suffered from technical defect also required consideration---Leave to appeal was granted by the Supreme Court to consider the said questions and operation of impugned ' High Court judgment was suspended.

Ahmer Bilal Soofi, Advocate Supreme Court with Faiz-ur-Rehman, Advocate-on-Record for Petitioners.

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

Nemo for other Respondents.

Date of hearing: 29th December, 2004.

2005 S C M R 1595

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi and Faqir Muhammad Khokhar, J

Mst. BHAGGAY BIBI and others---Petitioners

Versus

Mst. RAZIA BIBI and others---Respondents

Civil Review Petition No.62 of 2004, decided on 5th January, 2005.

(Under Article 188 of the Constitution of Islamic Republic of Pakistan, 1973 read with Order XXVI, Rule I of Supreme Court Rules, 1980 for review of the judgment of this Court, dated 30th April, 2002, passed in C.A. No.679 of 2002 (C.P. No.436-L of 1999).

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

----S. 4---Supreme Court Rules, 1980, O.XXVI, R.1-Constitution of Pakistan (1973), Art.188---Review of Supreme Court judgment---Shares of legal heirs of predeceased son---Provision of S.4, Muslim Family Laws Ordinance, 1961---Object---Supreme Court, in judgment under review, had decided the shares among legal heirs of predeceased son--Petitioners sought review of the judgment on the ground that the property of father of predeceased son was not distributed among his legal heirs as per law of Shariah---Validity---Law of Shariah was not overridden by S.4 of Muslim Family Laws Ordinance, 1961, and consequently the parties would not get more than their shares in the property in accordance with law of Shariah---Widows and daughters of predeceased son would get what they were entitled on the death of predeceased son, after opening of succession of father of the predeceased son---Purpose of enacting S.4 in Muslim Family Laws Ordinance, 1961, was to cater the need of grandchildren to remove their sufferings but this provision could not be interpreted in a manner affecting the shares of other descendants in the property in accordance with law of Shariah---Heirs of predeceased children, according to law of Shariah, would inherit what their father or mother would have inherited during their life time on the opening of succession---Supreme Court did not find any error in the judgment under review---Petition was dismissed.

Zainab v. Kamal Khan PLD 1990 SC 1051 fol.

Ch. Muhammad Abdul Saleem, Senior Advocate Supreme Court, Imtiaz Muhammad Khan, Advocate-on-Record and Arshad Ali Ch. Advocate-on-Record for Petitioners.

Ch. Mushtaq Ahmed Khan Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No. 1.

Date of hearing: 5th January, 2005.

2005 S C M R 1597

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Mian Muhammad Ajmal, JJ

MUKHI CHATROMAL and another---Petitioner

Versus

KHUBCHAND and others---Respondents

Civil Petition for Leave to Appeal No.136-K of 2003, decided on 7th July, 2004.

(On appeal from the order of High Court of Sindh at Karachi dated 18-11-2002 passed in High Court Appeal No.135 of 1986).

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

----O. XLI, R.19---Constitution of Pakistan (1973), Art.185(3)---Restoration of appeal---Non-compliance of condition imposed by High Court at the time of restoration of appeal---Appeal dismissed for non-prosecution was restored by High Court on the condition that the appellants would deposit the rent in Court within 60 days---Appellants failed to deposit the amount as directed by High Court, therefore, appeal was dismissed---Effect---As the appellants did not care to comply with the condition stipulated in the order for re-admission of appeal, Supreme Court declined to interfere with the exercise of discretion by High Court which was neither unfair nor unreasonable---Leave to appeal was refused.

Ali Akbar, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 7th July, 2004.

2005 S C M R 1599

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and M. Javed Buttar, JJ

SHERAZ AHMAD and others---Petitioners

Versus

FAYYAZ-UD-DIN and others---Respondents

Civil Petition No.40-L of 2001, decided on 16th June, 2005.

(On appeal from the judgment dated 6-11-2000 of the Lahore High Court, Lahore passed in Writ Petition No.5103 of 1988).

Criminal Procedure Code (V of 1898)---

----S. 249-A---Constitution of Pakistan (1973), Art. 185(3)-High Court had found that acquittal of accused under S.249-A, Cr.P.C. was not proper on the ground that a civil suit pertaining to the same transaction was pending in the Court---Supreme Court, with the consent of the parties, by converting the petition for leave to appeal into appeal modified the judgment of the High Court to the extent that pending disposal of civil dispute, the proceedings in the criminal case shall remain stayed.

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

Khawaja Haris Ahmad, Advocate Supreme Court and Mehmoodul Islam, Advocate-on-Record for Respondent No.1.

Date of hearing: 16th June, 2005.

2005 S C M R 1600

[Supreme Court of Pakistan]

Present Rana Bhagwandas and Syed Deedar Husain Shah, JJ

GHULAM MUJTABA JATOI---Petitioner

Versus

THE STATE through Advocate-General Sindh, Karachi---Respondent

Criminal Petition No.42-K of 2004, heard on 5th August, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324, 379, 511, 147, 148 & 149---Constitution of Pakistani (1973), Art.185(3)---Bail, grant of---Further inquiry---After investigation charge-sheet against accused persons was not submitted for want of adequate and reliable evidence and instead a report under S.173, Cr.P.C. was submitted before Trial Magistrate---Trial Magistrate being not satisfied with police report chose to summon complainant and witnesses and after recording their statements in absence of accused, issued direction for submission of charge-sheet against them---Co-accused had been released on bail---Case against accused required further inquiry as Investigating Agency found no case against him---Even otherwise witnesses had been examined by Magistrate behind the back of accused after about two months---Accused was admitted to bail, in circumstances.

Rasool Bux Unar, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Dr. Qazi Khalid Ali, Additional Advocate-General, Sindh for the State.

Date of hearing: 5th August, 2004.

2005 SC MR 1601

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal Abdul Hameed Dogar, Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi, Faqir Muhammad Khokhar Mian Shakirullah Jan, M. Javed Buttar and Saiyed Saeed Ashhad, JJ

REFERENCE NO.2 OF 2005 BY THE PRESIDENT OF PAKISTAN: IN THE MATTER OF

Reference No.2 of 2005, decided on 4th August, 2005.

North-West Frontier Province Hasba Bill, 2005---

---Ss. 10(ب ), ( ج ), د), 12(1)(ا)(ب)(ج ), 23(1)(2)(3), (5)(6)(7)(12)(14) & (27), 25(1)(2) & 28---Constitution of Pakistan (1973), Arts.186 & 116---Reference to Supreme Court under Art.186 of the Constitution by the President of Pakistan---Vires of North-West Frontier Province Hasba Bill, 2005---Sections 10(ب)(ج)(د), 12(1)(ا), (ب) & (ج), 23(1), (2), (3), (5), (6), (7), (12), (14), (27), 25(1) (2) and 28 of the "Hasba Bill", 2005, passed by the Provincial Assembly of N.-W.F.P., are ultra vires the Constitution, therefore, the Governor of the N.-W.F.P. may not assent to the "Hasba Bill" in its present form.

Makhdoom Ali Khan, Attorney-General for Pakistan, Raja Muhammad Irshad, Deputy Attorney-General, Nasir Saeed Sheikh, Deputy Attorney-General, Ms. Nahida Mehboob Ellahi, Deputy Attorney-General, Faisal H. Naqvi, Advocate, Uzair Karamat Bhandari, Advocate, Khurram M. Hashmi, Advocate, M.S. Khattak, Advocate-on-Record for Petitioner.

Khalid Anwar, Senior Advocate Supreme Court, Haji M.A. Qayyum Mazhar, Advocate-on-Record, assisted by Muneeb Akhtar, Advocate, Bilal Shaukat, Advocate, Younas Tanoli, Advocate-General, N.-W.F.P. and Pir Liaqat Ali Shah, Additional Advocate-General, N.-W.F.P. for Respondents.

Aftab Iqbal Chaudhry, Advocate-General (Punjab), Mrs. Afshan Ghazanfar, Assistant Advocate-General (Punjab), Syed Sajjad Hussain Shah, Assistant Advocate-General (Punjab), Dr. Qazi Khalid Ali, Additional Advocate-General, Sindh and Salah-ud-Din Mengal, Advocate-General, Balochistan on Court notice.

Date of hearing: 4th August, 2005.

2005 S C M R 1603

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Nasir-ul-Mulk, JJ

ANWAR PARVEZ---Petitioner

Versus

CHAIRMAN, BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, ABBOTTABAD and 2 others---Respondents

Civil Petition No.37-P of 2004, decided on 24th June, 2005.

(On appeal from the judgment dated 19-12-2003 passed in N.-W.F.P. Service Tribunal, Peshawar in Service Appeal No.502 of 2903).

North-West Frontier Province Removal from Service (Special Powers) Ordinance (V of 2000)---

----Ss. 3 & 10---North-West Frontier Province Civil Servants Act (XVIII of 1973), S.2(b)---Constitution of Pakistan (1973), Art.212(3)---Compulsory retirement of employee of a statutory body---Appeal of such employee was dismissed by the Service Tribunal on the ground that under S.2(b) of the N.-W.F.P., Civil Servants Act, 1973 he being an employee of the Board of Secondary Education, was not a civil servant---Validity---Compulsory retirement was ordered under S.3, N.-W.F.P. Removal from Service (Special Powers) Ordinance, 2000 and S.10, thereof, dealing with appeals, had categorically laid down that notwithstanding anything contained in any other law for the time being in force, any person aggrieved by any final order shall prefer appeal to the Service Tribunal established under N.-W.F.P. Service Tribunals Act, 1974---N.-W.F.P. Removal from Service (Special Powers) Ordinance, 2000 being the latest special law had provided a forum of appeal to anyone who was proceeded against under the said Ordinance---Appeal therefore, was competent before the Service Tribunal which was wrongly dismissed by the Tribunal---Petition for leave to appeal, after its conversion .into appeal by the Supreme Court, was accepted and the case was remanded to the Service Tribunal for decision on merits.

Khushdil Khan, Advocate Supreme Court with Mir Adam Khan, Advocate-on-Record for Petitioner.

Malik Manzoor Hussain, Advocate Supreme Court for Respondents.

Date of hearing: 24th June, 2005.

2005 S C M R 1604

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi and Saiyed Saeed Ashhad, JJ

Syed ISHAQUE HUSSAIN RIZVI and others---Petitioners

Versus

Sheikh MUBARIK ALI and others---Respondents

Civil Appeals Nos.342 and 351 of 2000, decided on 2nd May, 2005.

(On appeal from a common judgment of Lahore High Court, Lahore, dated 19-1-2000 passed in R.S.A. No.47 of 1996).

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

----Ss. 12 & 8---Civil Procedure Code (V of 1908), S.41---Suit for specific performance of agreement to sell land---Allottees, prior to the acquisition of proprietary rights, entered into an agreement of sale of land with respondents and subsequently they also entered into a sale agreement with appellants through their attorney---Respondents, on coming to know about the subsequent agreement, filed suit and later the parties in, the suit entered into compromise on the basis of which, decree was passed in the suit---Agreement between the parties in respect of the property, subject-matter of decree would become subservient to said compromise and would lose its independent status whereas the agreement entered between the parties subsequent to the passing of the decree, would be entirely independent and on the basis of such agreement, suit for specific performance and possession of land would be competent---Right claimed by the respondents under the agreement having not been created in their favour under the decree would not be determinable in terms of S.47, C.P.C. and consequently, the suit would not be defeated on the basis of technical objection---Decree being declaratory in character, would not be as such capable of execution---Provisions of S.47, C.P.C. even otherwise would not debar the suit---Sale in favour of appellants having taken place during pendency of suit, would be hit by principle of its pendens and the appellants would not. be considered bona fide purchasers---Legal character of the agreement between the respondents under which they had acquired title in the suit land to the extent of 2/3rd share under the decree and 1/3rd share on the basis of agreement to sell, was an independent transaction and view of the High Court that said agreement was void was contrary to law---Concurrent findings of the two Courts subordinate, to the High Court on this specific issue, was not liable to be disturbed by the High Court--Principles.

Syed M. Kaleem A. Khurshid, Advocate Supreme Court for Appellants.

Muhammad Hanif Niazi, Advocate Supreme Court for Respondents.

Date of hearing: 2nd May, 2005.

2005 S C M R 1610

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Mian Shakirullah Jan, JJ

GHULAM QASIM KHAN-Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Establishment Division, Government of Pakistan and another---Respondents

Civil Petition No.1547 of 2004, decided on 25th July, 2005.

(On appeal from the judgment dated 16-5-2003 of the Federal Service Tribunal, Islamabad passed in Appeal No.831(R)CS of 2002).

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 3, 5 & 8---Government Servants Efficiency and Discipline) Rules, 1973---Fundamental Rules, R.29---Service Tribunals Act (LXX of 1973), S.5---Constitution of Pakistan (1973), Art.212(3)---Punishment of reduction to the lowest time scale in BPS-19---Contention of the petitioner was that when the Inquiry Committee had found that the petitioner was not involved in misappropriation or embezzlement, the punishment imposed was unwarranted---Validity---Held, section 3, Removal from Service (Special Powers) Ordinance, 2000 in general and S.3(i)(e) in particular authorized the competent authority to impose any of the punishments given in S.3(i)(e) as well as Government Servants (Efficiency and Discipline) Rules, 1973---Section 5 read with S.8 of the Ordinance authorized the competent Authority to pass such order on the report and recommendation of the Inquiry Committee or Inquiry Officer, as it might deem proper in `accordance with the provisions of the Ordinance---Question as to how such punishments were to be in accord with the provisions of the Ordinance, was fully answered in S.3 of the Ordinance---Competent Authority, therefore, was not bound to follow the report of the Inquiry Officer which, in the very terms of the section, was of recommendatory nature---Recommendations in view of Ss.3, 5 & 8 of the Removal from Service (Special Powers) Ordinance, 2000 could not be construed to be binding upon the competent Authority---Leave to appeal was refused.

Raja Muhammad Asghar Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 25th July, 2005.

2005 S C M R 1612

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

MUHAMMAD NAWAZ---Petitioner

Versus

PROVINCE OF PUNJAB through Secretary, Board of Revenue, Punjab and others-Respondents

Civil Petition No.856-L of 2005, decided on 21st July, 2005.

(On appeal from the judgment dated 2-5-2005 of the Lahore High Court, Multan Bench, passed in Writ Petition No.790 of 1992).

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

----S. 24---Constitution of Pakistan (1973), Art.185(3)---Lease of land under Tubewell Sinking Scheme for a period of twenty years extendable for another ten years was prematurely cancelled by the Collector---Lessee had failed to avail the statutory remedies of appeal before the Commissioner and the Board of Revenue against the order of resumption of land and remained in deep slumber for about twenty years after the passage of order of cancellation of lease---District Collector had clearly stated in his memo. that the lessee had neither cultivated the land in question nor had resided in the Chak and that the land in question remained Banjar Qadeem---Lessee could not demonstrate from the Revenue Record that he had brought the land in dispute under cultivation during the entire period of twenty years---Order of cancellation of lease was passed after notice to the allottee and in his presence---Jamabandi of the land also showed that the land in question had not been brought under cultivation---Allottee had not been able to fulfil his obligations and failed to cultivate the land in question for more than 30 years---Held, resumption order of the Collector, after notice to allottee and hearing him in circumstances, was justified as there was a substantial compliance of S.24 of Colonization of Government Lands (Punjab) Act, 1912---Petition for leave to appeal against the order of the High Court was refused.

Anjuman-e-Ahmadiya, Sargodha v. Deputy Commissioner, Sargodha PLD 1966 SC 639; Sardar Muhammad Aslam Sial and others v. The Government of Pakistan and 3 others 1985 SCMR 9; Fateh Muhammad v. Mushtaq Ahmed and 9 others 1981 SCMR 1061; The Anjuman Araian Muzaran Ltd. v. Board of Revenue, Lahore and 8 others PLD 1978 Lah. 489 and Mian Ghulam Muhammad v. The Collector, Montgomery and 2 others PLD 1973 Lah. 528 distinguished.

Imam Bakhsh v. The Collector and others 1982 SCMR 149; Bashir Ahmed v. Member, Board of Revenue and others 1983 CLC 3117; Asghar Ali v. Member, Board of Revenue (Colonies) and others 1983 CLC 3307; Mst. Amina Begum and others v. Mehar Ghulam Dastgir PLD 1978 SC 220; Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others v. Aftab Ahmed Khan Sherpao PLD 1992 SC 723; Habib Ahmed and another v. Member, Board of Revenue (Colonies), West Pakistan, Lahore and 2 others 1970 SCMR 235 and Sub. Muhammad Asghar v. Mst. Safia Begum and another PLD 1976 SC 435 ref.

A.K. Dogar, Advocate Supreme Court and Haji M. Rafi Siddiqui, Advocate-on-Record for Petitioner.

Ch. Muhammad Sadiq, Additional Advocate-General, Punjab for Respondents.

Date of hearing: 21st July, 2005.

2005 S C M R 1617

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi and Mian Shakirullah Jan, JJ

ABDUL HAMEED and others---Appellants

Versus

MEMBER (REVENUE), BOARD OF REVENUE and others---Respondents

Civil Appeals Nos.589, 590 and 929 of 2004, decided on 1st June, 2005.

(On appeal from the judgment of Punjab Service Tribunal, dated 1-11-2001 passed in Appeals Nos.2657 of 2000, 2600 of 2000 and 2612 of 2000 respectively).

(a) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----R. 7-A---West Pakistan Land Revenue Act (XVII of 1967), Ss.42 & 166---Constitution of Pakistan (1973), Arts.13(a) & 212(3)---Dismissal of civil servants from service who were Naib Tehsildar, Kanungo and Patwari on the ground of misconduct---Charge against the civil servants was that on 'the basis of an ex parte decree passed by a Civil Judge, they proceeded to sanction the mutation of the land in possession of Public Works Department, and Police Department of the Provincial Government, in favour of decree-holder, without the permission of District Collector, and thereby, with ulterior motives and mala fide intention, caused loss to the Government---Leave to appeal was granted by the Supreme Court inter alia to consider the questions as to whether the petitioners who were subjected to two inquiry proceedings wherein they were exonerated from the charges, could be subjected to de novo inquiry for the third time without recording valid reasons; whether petitioner, who, after show-cause notice was awarded minor punishment of withholding of two increments which was not challenged by him, could be proceeded against on the same allegations again and awarded major penalty in violation of Article 13(a) of the Constitution of the Islamic Republic of Pakistan; whether the petitioners were not bound under section 42 of the West Pakistan Land Revenue Act, 1967 to enter and sanction the mutation in accordance with the judgment and decree of the Court which was not ex parte, and whether any executive instructions regarding the entry and sanctioning of mutation could override statutory provisions; whether the petitioners against whom allegation of corruption or mala fide acts had not been proved at all and admittedly no loss had been caused to the Government, they could be imposed maximum major penalty of dismissal from service or ends of justice would have met by imposing minor penalty as alleged misconduct was entry and sanction of the mutation on the basis of a Court decree without proper approval of the Collector; whether the exoneration of the petitioner twice in the findings of the inquiries from the allegations of sanctioning the mutation in Part Potwar which was corrected in the Part Sarkar which was rejected immediately which was endorsed by the Deputy Commissioner/Collector, was not sufficient to exonerate him from the allegations that such entry in Part Potwar was inadvertent and in routine, thus, would fall within the scope of section 166 of the Land Revenue Act, 1967; whether the endorsement of the two inquiry reports by the Deputy Commissioner/Collector would not amount to waiver of the approval for entry and sanctioning of the mutation which was not even the legal requirement and whether non-compliance of the provisions of Rule 7-A of the Punjab Civil Servants (Efficiency & Discipline) Rules, 1975 by the Authorized Officer would not vitiate the order of dismissal of the petitioners from service.

(b) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----R. 7-A---West Pakistan Land Revenue Act (XVII of 1967), S.42---Dismissal of civil servants from service who were Naib Tehsildar, Kanungo and Patwari on the ground of misconduct---Charge against the civil servants was that on the basis of an ex parte decree passed by a Civil Judge, without the permission of District Collector, they proceeded to sanction the mutation of the land in possession of Public Works Department, and Police Department of the Provincial Government, in favour of decree-holder and thereby, with ulterior motives, and mala fide intention, caused loss to the Government---Validity---Record showed that the Patwari and Kanungo having not taken care to bring the matter to the notice of the concerned Authorities before making the entries in register of mutation, acted negligently and similarly the Naib Tehsildar, in his capacity as sanctioning authority proceeded to sanction the mutation without taking pains in making an inquiry into the matter, acted in an irresponsible manner---Civil servants being careless in performance of their duties were certainly negligent but there was nothing on record to hold them guilty of misconduct---Case of civil servants, therefore, was not that of major penalty but .was that of minor penalty for which stoppage of two increments for a period of two years to them, would have sufficiently met the ends of justice---Supreme Court, while converting the major penalty of dismissal from service awarded to the civil servants, into minor penalty of stoppage of increments for two years each modified the judgment of the Service Tribunal and partly allowed the appeals.

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

----S. 42---Sanction of mutation in implementation of the decree of Civil Court---Procedure elaborated.

(d) Civil service---

----"Misconduct" and "negligence"---Distinction.

Muhammad Saleem Sheikh, Advocate Supreme Court for Appellants (in all cases).

Mehmood A. Sheikh, Advocate Supreme Court and Rao Muhammad Yousaf, Advocate-on-Record and Zubair Chishti, S.O. for Respondents (in all cases).

Date of hearing: 1st June, 2005.

2005 S C M R 1626

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ

MATTIULLAH KHAN---Petitioner

Versus

THE STATE---Respondent

Jail Petition No.275 and Criminal Revision No.280 of 2002, decided on 12th July, 2005.

(On appeal from the judgment dated 20-5-2002 of the Lahore High Court, Lahore, passed in Criminal Appeal No.44/J of 2002).

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

----Ss. 302(b) & 353---Anti-Terrorism Act (XXVII of 1997), S.7---Constitution of Pakistan (1973), Art.185(3)---Straightforward and consistent ocular testimony furnished by the complainant and other eye-witness, who were police witnesses, was credit worthy and did not suffer from any infirmity---No inherent defect or material lacuna appeared in the evidence of both the said witnesses whose presence at the spot had been established beyond any doubt---Accused was proved by cogent evidence to have fired at the chest of the deceased in a callous and brutal manner which did not justify mitigation of his death sentence---Leave to appeal was refused to accused in circumstances.

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

----S. 302(b)---Sentence---Mitigating circumstances must be shown for taking lenient view---Normal penalty in the event of proof of charge of "Qatl-i-Amd" under the law is death and extenuating circumstances must be shown for taking a lenient view and for awarding lesser penalty.

Syed Ali Hassan Gillani, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 12th July, 2005.

2005 S C M R 1630

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Nasir-ul-Mulk, JJ

Mst. ZAMA BIBI---Petitioner

Versus

SAADAT KHAN and another---Respondents

Criminal Petition No.101/P of 2004, decided on 28th June, 2005.

(On appeal from the judgment dated 26-4-2004 passed by the Peshawar High Court, Peshawar in Criminal Miscellaneous No.68 of 2004).

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

----Ss. 561-A, 145 & 146---Constitution of Pakistan (1973), Art.185(3)---Quashing of proceedings by High Court---Magistrate being unable to satisfy himself as to the physical possession of the parties at the relevant time, but being satisfied about the existence of the apprehension of breach of peace, passed an order under S.146, Cr.P.C. which was upheld by the Sessions Court in revision petition---High Court, however, quashed the said proceedings under S.561-A, Cr.P.C. on the grounds, firstly that the petitioner had failed to prove the exact date of possession by the respondent, secondly that the matter could finally be decided in the already instituted civil suit, and thirdly that because of prolonged litigation there remained no apprehension of breach of peace---All the said three grounds, were found to be unfounded---Situation regarding the question of proof qua the possession was such that it had persuaded the Magistrate to pass an order not under S.145, Cr.P.C., but under S.146, Cr.P.C.---Reason advanced by the High Court would have prevailed only if the order had, rightly or wrongly, been passed under S.145, Cr.P.C.---Pendency of civil suit was immaterial because the same could ultimately decide the entitlement of the parties and not the immediate dispute' over possession leading to imminent danger of breach of peace---Question of prolonged litigation was also not relevant in the case because even a period of three years was not completed with effect from the passage of preliminary order---High Court, thus, had unjustifiably invoked its inherent jurisdiction under S.561-A, Cr.P.C. in the circumstances---Concurrent findings of the two Courts below exercising regular jurisdiction did not at all require to be reversed by the High Court simply because it had taken some different view of the evidence---Supreme Court observed that Court itself could appreciate the evidence, but the same was avoided, firstly because the concurrent findings were not perverse and secondly that the expression might affect the course of trial in the civil suit---Petition after conversion into appeal was accepted in circumstances, impugned judgment of High Court was set aside and the concurrent findings of the Magistrate and the Sessions Court were restored.

Agni Kumar Das v. Mantazuddin AIR 1928 Cal. 610; Abdul Aziz v. Mian Ziauddin 1983 SCMR 928 and Salim-ur-Rehman v. Faqir Hussain PLD 2003 SC 578 ref.

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

----S. 145---Procedure where dispute concerning land etc., is likely to cause breach of peace---Prolonged litigation not relevant---Mere prolongation of dispute cannot be pressed into service as an absolute rule for holding conclusively that no apprehension of breach of peace exists.

Abdul Aziz v. Mian Ziauddin 1983 SCMR 928 ref.

Abdul Sattar Khan, Advocate Supreme Court with Fateh Muhammad Khan, Advocate-on-Record for Petitioner.

Saeed Baig, Advocate Supreme Court for Respondent No.1.

Hamid Farooq Durrani, Advocate-General, N.-W.F.P. for the State/Respondent No.2.

Dates of hearing: 15th and 16th June, 2005.

2005 S C M R 1634

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Sardar Muhammad Raza Khan and Saiyed Saeed Ashhad, JJ

Malik WAJID MEHMOOD---Petitioner

versus

DISTRICT RETURNING OFFICER, KASUR and others---Respondents

Civil Petition No.1598-L of 2005, decided on 19th August, 2005.

(On appeal from the order, dated 8-8-2005 of the Lahore High Court, Lahore passed in Writ Petition No.14376 of 2005).

Punjab Local Government Elections Rules, 2005-----

----Rr.17 & 2(v)---Constitution of Pakistan (1973), Art.185(3)---Death of joint candidate for the election of Nazim and Naib Nazim before the scrutiny of nomination papers---Leave to appeal was granted by the Supreme Court to consider questions of first impression namely whether on the death of joint candidate the election would be terminated in terms of R.17 of Punjab Local Government Elections Rules, 2005; whether in case of death of joint candidate the petitioner (surviving 'candidate) had no right to pray for permission to allow him to join another candidate with him for the post of Nazim, and what would be the effect of R.2(v) read with R.17 of the Punjab Local Government Elections Rules, 2005, if the candidate had died before the scrutiny of the nomination papers---Supreme Court ordered that pending decision of appeal arising out of the petition the election in the Union Council be stayed.

Malik Muhammad Qayyum, Advocate Supreme Court, Muhammad Amin Lone, Advocate Supreme Court, Zafar Iqbal Chaudhry, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioner.

Dr. Danish Muhammad, Deputy Attorney-General for the State.

Muhammad Hanif Khatana, Additional Advocate-General, Punjab, for Advocate-General, Punjab.

Date of hearing: 19th August, 2005.

2005 S C M R 1636

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ

COLLECTOR OF CUSTOMS E & S.T. AND SALES TAX ---Petitioner

Versus

PAKISTAN STATE OIL COMPANY LTD.---Respondent

Civil Petitions Nos.897-K along with Civil Petitions Nos.3-K to 131-K of 2005 (130 petitions), decided on 23rd May, 2005.

(On appeal from the judgment dated 3rd August, 2004 of High Court of Sindh, Karachi passed in Special Customs Appeals Nos.210 of 2001, 170 to 254 of 2002 and 118 to 161 of 2003).

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

----Ss. 196 & 194-B---Appeal to High Court---Scope---Question of limitation---High Court could exercise its jurisdiction only in respect of questions of law arising out of order under S.194-B, Customs Act, 1969---Where the plea of limitation was not raised before the Customs hierarchy, High Court was not competent to consider said plea as same was neither raised before Collector, Customs nor before the Tribunal, and no discussion was found in orders of both the forums on the point of limitation and it could be assumed that such question never arose from the order passed by the Tribunal---Question of limitation was a mixed question of law and fact and unless it was raised before the forum below, same could not straightaway be agitated before the High Court---Factual controversy was sorted out upto the level of the Tribunal---Remedy under S.196, Customs Act, 1969 was restricted to legal points only, which was not available before the High Court in the present case.

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

----S. 106---Clearance of warehoused goods for export as provision on a conveyance proceeding to foreign destination---Supply of oil by the supplier Company to Pakistan Navy for ships was made at the rate which was applicable for supply to Pakistani ships other than on foreign voyage, which rate included the element of duty and taxes---Supplier Company in fact, had charged the same rate from Pakistan Navy, which was charged from other Pakistani ships not going abroad---Exemption to Pakistan Navy, thus, remained useless for them and the amount of claimed exemption went in the pocket of supplier Company, which was itself, a planned evasion---Provision of S.106, Customs Act, 1969, in circumstances, was not available to the supplier company to Pakistan Navy---Supplier Company, however, had started making payments of duty/taxes on the supplies from 1st September, 2000, which furnished sufficient basis to hold that the demand of Customs Authorities was correct and according to law and it was proved that the supplier Company had withheld Government revenue since long without any justification---Supreme Court, converted the petitions into appeal, allowed the same, and set aside the impugned judgment of the High Court and restored that of the Tribunal.

Sohail Muzaffar Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record (absent) for Petitioner.

Sajid Zahid, Advocate Supreme Court and Shabbir Ghouri, Advocate-on-Record for Respondent.

Date of hearing: 25th April, 2005.

2005 S C M R 1643

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Falak Sher, JJ

Messrs RASU FOOD INDUSTRIES and another---Petitioners

Versus

Messrs PAKISTAN INDUSTRIAL LEASING COOPERATION LIMITED and others---Respondents

Civil Petition No.2555-L of 2002, decided on 30th July, 2004.

(On appeal against the judgment dated 16-5-2002 passed by the Lahore High Court, Lahore in F.A.O. No.281 of 2001).

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

----Ss. 9, 10, 19 & 22---Civil Procedure Code (V of 1908), O.XXI, R.90---Suit for recovery of Bank loan---Execution proceedings---Suit filed by Bank against petitioner having been decreed, Bank resorted to execution proceedings for the recovery of decretal amount and during process of said proceedings, orders for auction of property owned by petitioners were passed---Application filed by petitioners under O. XXI, R.90, C.P.C. against auction order was finally dismissed by High Court vide impugned order---Impugned order was conditional order as under said order petitioners were required to deposit decretal amount before Banking Court within a period of one month, but they failed to do so, with the result that sale of house in favour of auction-purchaser was confirmed and certificate of sale was issued and since then property had changed three hands---As process of selling property to satisfy decree had gone a long way, no relief could be granted to petitioners.

Iftikhar Ullah Malik, Advocate Supreme Court and Mahmud-ul-Islam, Advocate-on-Record for Petitioners.

Ali Akbar Qureshi, Advocate Supreme Court and Sh. Salah-ud-Din, Advocate-on-Record for Respondents.

Date of hearing: 30th July, 2004.

2005 S C M R 1645

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C. J. and Qazi Muhammad Farooq, J

MUHAMMAD AHMED and others---Petitioners

Versus

THE STATE---Respondent

Criminal Petition No.380-L of 2003, decided on 31st October, 2003.

(On appeal from the order, dated 12-5-2003 of the Lahore High Court in Criminal Revision No.9 of 2003).

Penal Code (XLV of 1860)---

----Ss. 356, 452 & 354---Constitution of Pakistan (1973), Art.185(3)--Victim of the attack as well as the witness had supported the prosecution case on all material particulars at the trial---Recovery of weapon of offence being only the corroborative piece of evidence to strengthen the ocular account, recovery of Chhuri from the accused having not been proved was insignificant in the presence of overwhelming ocular testimony against them---Prosecution case stood established against the accused beyond doubt---Leave to appeal was refused to accused accordingly.

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

Nemo for Respondent.

Date of hearing: 31st October, 2003.

2005 S C M R 1646

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan, Khalil-ur-Rehman Ramday and Falak Sher, JJ

MUHAMMAD SULTAN and others---Petitioners

Versus

THE STATE---Respondent

Cr.P.L.A. No.729/L of 2002, decided on 10th December, 2002.

(On appeal from the order dated 1-8-2002 passed in Criminal Miscellaneous No.4881/B of 2002 by the Lahore High Court, Lahore).

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)---Pre-arrest bail, grant of---High Court had exercised its discretion in declining the post-arrest bail to accused by examining the record---Cogent reasons had been given by High Court to arrive at the said conclusion---No reason was available to interfere with the discretion exercised by the High Court ---Leave to appeal was refused to accused by Supreme Court in circumstances.

A.G. Tariq Chaudhry, Advocate Supreme Court with Mahmood A. Qureshi, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing; 10th December, 2002.

2005 S C M R 1648

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Faqir Muhammad Khokhar, JJ

KARIM BIBI and others---Petitioners

Versus

FAQIR MUHAMMAD and others---Respondents

Civil Petition No.1186-L of 2003, decided on 6th July, 2004.

(On appeal against the judgment dated 31-3-2003 passed by the Lahore High Court, Lahore in Civil Revision No.1281 of 1996).

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Art.72---Constitution of Pakistan (1973), Art.185(3)---Declaration of title---Limitation---Allotment chit---Status---Concurrent finding of facts by the Courts below---Parties were successors-in-interest of the original allottee of suit land and after his death the land was mutated in favour of defendants---Plaintiffs claimed to be the legal heirs of the original allottee and their names appeared on allotment chit---Trial Court decreed the suit in favour of plaintiffs and the judgment and decree was maintained by Appellate Court as well as High Court in exercise of appellate and revisional jurisdictions respectively---Validity---High Court after having taken into consideration the chit held that because its validity was not challenged in the written statement, therefore, it would be presumed that on the basis of same, the whole family was entitled for grant of proprietary rights in disputed property---As the plaintiffs were co-allottees with the original allottee, therefore, they became co-sharers with him, as such question of limitation did not arise---Judgment passed by High Court being in accordance with law admitted no interference by Supreme Court---Leave to appeal was refused.

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

Muhammad Aslam Sandhu, Advocate Supreme Court and Tanveer Ahmed, Advocate-on-Record for Respondents.

Date of hearing: 6th July, 2004.

2005 S C M R 1650

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

MUHAMMAD AYUB through L.Rs. and others---Petitioners

Versus

GHULAM MUHAMMAD and others-Respondents

Civil Petition for Leave to Appeal No.416/L of 2000, decided on 27th February, 2003.

(On appeal from the judgment dated 18-11-1999 of the Lahore High Court, Lahore, passed in Writ Petition No.269-R of 1984).

Specific Relief Act (I of 1877)---

----S. 42---Constitution of Pakistan (1973), Art.185(3)---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2--Civil Procedure Code (V of 1908), S.9---Suit for declaration---Plaintiff in suit challenged transfer order passed by Settlement Authority as having been secured by defendant through fraud and misrepresentation---Trial Court dismissed suit being not maintainable, but plaintiff did not challenge such order---Plaintiff challenged transfer order in Constitutional petition, which was accepted by High Court remanding case to Trial Court for fresh decision---Validity---After repeal of Settlement Laws such factual controversy could be resolved by Civil Court of plenary jurisdiction---Plaintiff in suit had taken exception to transfer order, which had been dismissed being not maintainable---High Court had not committed illegality in remanding case to Trial Court to judge veracity of transfer order---Supreme Court dismissed petition and refused leave to appeal.

Ch. Qadir Bakhsh, Senior Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 27th February, 2003.

2005 S C M R 1653

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Mian Muhammad Ajmal and Khalil-ur-Rehman Ramday, JJ

MUHAMMAD NAZIR---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Petition No.913 of 2002, decided on 18th February, 2004.

(On appeal from the judgment dated 15-11-2002 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No.2177/M of 2002).

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

----S. 540---Penal Code (XLV of 1860), Ss.467/468/471/420/419/406/506/34---Constitution of Pakistan (1973), Art.185(3)---Tendering of documents in evidence---Validity---Complainant during recording his examination-in-chief had no need for moving a separate application seeking permission to produce documents because he being the complainant, could have tendered any document in his statement subject to the permission of the Court to accept the same or not in view of the relevant provisions of the law---If the Court had declined to receive the documents tendered by the complainant then he could have moved an application for summoning the witness i.e., the custodian of the documents by invoking the jurisdiction of the Court under S.540, Cr.P.C. subject to the decision of the Court thereon---Petition for leave to appeal was, thus, converted into appeal and allowed and the impugned order was set aside with the observation that the complainant would be at liberty to tender the documents in his statement and in case of refusal by the Court to receive the same to invoke the jurisdiction of the Court under S.540, Cr.P.C.

Farooq Amjad Meer, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioner.

Hafiz Abdur Rehman Ansari, Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record (absent) for Respondent No.2.

Ms. Yasmin Sehgal, A.A.-G. for the State.

Date of hearing; 18th February, 2004.

2005 S C M R 1655

[Supreme Court of Pakistan]

Present: Munir A. Shaikh and Faqir Muhammad Khokhar, JJ

JAVED HUSSAIN ANSARI---Petitioner

Versus

MUHAMMAD AYAZ KHAN---Respondent

Civil Petition No.3596-L of 2002, decided on 15th April, 2003.

(On appeal from order dated 3-9-2002 of the Lahore High Court, Lahore, passed in Civil Revision No.1946 of 2002).

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr.2, 3 & 4---Constitution of Pakistan (1973), Art.185(3)---Suit for recovery of money based on cheque---WAPDA awarded contract to defendant, which he further sub-contracted to plaintiff on payment of fixed amount---Defendant gave cheque to plaintiff on completion of work of sub-contract---Defendant's application for leave to defend suit was dismissed on merits---Defendant filed application under O.XXXVII, R.4, C.P.C. for setting aside decree and grant of leave to defend suit, but same was dismissed---High Court dismissed revision of defendant---Plea of defendant was that he had to pay suit amount after recovery of amount from WAPDA on completion of contract by him---Validity---Decree once passed could be set aside under O.XXXVII, R.4, C.P.C. on showing special circumstances---Defendant had accepted his liability to pay fixed amount to plaintiff by issuing cheque---Matter about payment of dues between defendant and WAPDA had no concern with plaintiff, who was to be paid fixed amount as per agreement---Such was a case of admitted liability, thus, after rejection of application for leave to defend suit, there was no special circumstance to entertain application under O.XXXVII, R.4, C.P.C.---Supreme Court dismissed petition and refused leave to appeal.

Mushtaq Ahmad Qureshi, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 15th April, 2003.

2005 S C M R 1657

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and M. Javed Buttar, JJ

MUBARIK ALI through L.Rs.---Petitioners

Versus

AMROO KHAN through L.Rs.---Respondents

Civil Petition No.3724-L of 2001, decided on 4th August, 2004.

(On appeal from the judgment/order dated 29-10-2001 passed by Lahore High Court, Lahore in Civil Revision No.700 of 1995).

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), 5.115---Constitution of Pakistan (1973), Art.185 (3)---Declaration of title---Oral sale---Proof---Reappraisal of evidence by High Court in exercise of revisional jurisdiction---Plaintiffs contended that through evidence of two witnesses, they had proved oral sale of suit house by their predecessor­ in-interest against consideration of Rs.6,000--,-Trial Court and Appellate Court while believing the statements of witnesses concluded that the oral sale had taken place between the parties but High Court while exercising revisional jurisdiction'. under S.115 C.P.C. re-appreciated the evidence itself and formed opinion against plaintiffs to the effect that no sale had taken place---Further contention of plaintiffs was that jurisdiction of High Court was, confined within the parameters of S.115 C.P.C. and it had no jurisdiction to interfere in the findings of fact merely for the reason that on the basis of material available on record, second opinion in respect of the same was also possible---Plaintiffs also contended that evidence of both the witnesses was consistent on the point that the defendant agreed to execute sale-deed in favour of the plaintiff but their statements had been disbelieved for the reason that they had not furnished the evidence in consonance to the contents of the plaint---Leave to appeal was granted by Supreme Court to consider the contentions of the plaintiffs.

Ch. Riyasat Ali, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 4th August, 2004.

2005 S C M R 1660

[Supreme Court of Pakistan]

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

Mst. ZAINAB BIBI and others-Petitioners

Versus

FAZAL MUHAMMAD and others---Respondents

Civil Petition No.3328-L of 2001, decided on 11th June, 2003.

(On appeal from the judgment dated 16-8-2001 of the Lahore High Court, Multan Bench passed in Civil Revision No.260 of 1983).

Specific Relief Act (I of 1877)---

----S. 42---Displaced Persons (Land Settlement) Act (XLVII of 1958), Preamble---Civil Procedure Code (V of 1908), S.9---Limitation Act (IX of 1908), Art.95---Constitution of Pakistan (1973), Art.185(3)---Suit for declaration challenging orders of Rehabilitation Authorities on ground of fraud---Limitation---Jurisdiction of Civil Court---Mutation in respect of claim holder under Rehabilitation laws was attested on 20-5-1953---Plaintiff in appeal filed against mutation before Collector stated that she came to know about alleged fraud in year, 1970---Collector accepted appeal, which decision was set aside by Rehabilitation Commissioner on 30-6-1971---Plaintiff filed such suit on 24-10-1977---Courts below concurrently dismissed suit---Validity---Period of limitation for suit on ground of fraud was three years from date of acquisition of knowledge of fraud---Such suit was barred by time---Orders of Rehabilitation Authorities under Rehabilitation laws were immune from challenge before Civil Court---Plaintiff should have sought remedy against order, dated 30-6-1971 at relevant time before High Court in second revision under Settlement laws---Findings recorded by Courts below did not. suffer from misreading or non-reading of material piece of evidence---Supreme Court dismissed petition and refused leave to appeal.

Muhammad Iqbal Khan, Advocate Supreme Court for Petitioners.

Sh. Maqbool Ahmed, Advocate Supreme Court for Respondents.

Date of hearing: 11th June, 2003.

2005 S C M R 1662

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Faqir Muhammad Khokhar, JJ

Mst. BHAKHAN and others---Petitioners

Versus

Mst. GHULAM JANAT and others---Respondents

Civil Petition No.182-L of 2003, decided on 6th July, 2004.

(On appeal against the judgment, dated 6-11-2002 passed by the Lahore High Court, Lahore in Civil Revision No.1278-D of 1997).

Constitution of Pakistan (1973)---

-------Art. 185(3)---Supreme Court Rules, 1980, O.XIII, R.1---Petition for leave to appeal---Re-filing petition with delay after removing office objection---Delay of each day not satisfactorily explained in application for condonation of delay---Held: Petitioner was bound to suffer for not instituting proceedings according to Supreme Court Rules, 1980---Supreme Court dismissed petition being time-barred.

Muhammad Raza and others v. Mst. Aalia and others 1987 SCMR 1818 rel.

Abdul Rehman Madni, Advocate Supreme Court and M. Ozair Chughtai, Advocate-on-Record (absent) for Petitioners.

Syed Zulfiqar Ali Bukhari, Advocate Supreme Court and A.H. Masood, Advocate-on-Record (absent) for Respondents.

Date of hearing: 6th July, 2004.

2005 S C M R 1664

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

RIAZ HUSSAIN---Petitioner

Versus

NAZAR MUHAMMAD and others---Respondents

Civil Petition for Leave to Appeal No.1901/L of 2002, decided on 22nd April, 2003.

(On appeal from the judgment dated 22-5-2000 of the Lahore High Court, Lahore, passed in Civil Revision No.858 of 1985).

Civil Procedure Code (V of 1908)---

----S. 148, O.XX, R.14 & O.XXIII, R.3---Consent decree in pre-emption suit effected through compromise requiring pre-emptor to deposit decretal amount within specified time, failing which suit would stand dismissed---Pre-emptor did not comply with decree, but prayed for extension of time in a time-barred appeal, which was granted by Appellate Court---High Court in revision non-suited pre-emptor on the ground that a valuable right had accrued in favour of vendee by non-deposit of decretal amount within time and filing of belated appeal---Judgment of High Court did not suffer from any illegality or infirmity warranting interference---Supreme Court dismissed petition and refused leave to appeal.

Khizar Abbas Khan, Advocate Supreme Court with Ch. Mehdi Khan, Mehtab, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 22nd April, 2003.

2005 S C M R 1666

[Supreme Court of Pakistan]

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

Aga JEHANZEB---Petitioner

Versus

N.A.B. and others---Respondents

C.Ps. Nos. 50 and 51 of 2003, decided on 7th April, 2003.

(On appeal from the order dated 27th of November, 2002 of the Lahore High Court in Writ Petition No-.17035 of 2002 and 17034 of 2002).

Penal Code (XLV of 1860)---

---Ss. 406/420/467/468/471---Constitution of Pakistan (1973), Art.185(3)---Bail, grant of---Petition for leave to appeal filed by accused had called in question order passed by High Court whereby Constitutional petition filed by accused seeking post-arrest bail was dismissed---Accused was in continuous detention for the last two years and trial of his case was not in sight in near future and complete challan had not yet been submitted and prosecution had submitted a list of 83 witnesses to be examined despite voluminous documentary evidence---Supreme Court directed that after submission of challan in Court, if trial of case would not commence or concluded within 30 days from date of submission of challan, accused would automatically become entitled to grant of bail.

Muhammad Farooq Bedar, Advocate Supreme Court, M. Naseem Kashmiri, Advocate Supreme Court and Ozair Chughtai, Advocate-on-Record (absent) for Petitioner.

M. Ibrahim Satti, Advocate Supreme Court and Ms. Khatak, Advocate-on-Record for Respondents.

Date of hearing: 7th April, 2003.

2005 S C M R 1668

[Supreme Court of Pakistan]

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

MUHAMMAD SIDDIQUE and others---Petitioners

Versus

TAJ and another---Respondents

Civil Petitions Nos.1603-L and 1604-L of 2000, decided on 6th May, 2003.

(On appeal .from the judgment of the Lahore High Court, Lahore, dated 18-4-2000 passed in C.Rs.Nos.1035 and 1036 of 1997).

Civil Procedure Code (V of 1908)---

----O. XX, R.14 & O-.XXI, R.35---Constitution of Pakistan (1973), Art.185(3)---Execution of decree in pre-emption suit---Compromise for adjustment of land between parties by modifying original decree-Parties had settled matter with their free-will, which was a lawful agreement---Supreme Court accepted agreement and modified original decree in terms thereof, which would be deemed to be decree operative between parties, which stood satisfied in its entirety as parties had already taken possession of their respective portions allocated to them as owners thereof.

Saeed-ur-Rehman Farrukh, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioners.

Talib H. Rizvi, Senior Advocate Supreme Court and C.M. Latif, Advocate-on-Record, for Respondents.

Date of hearing; 6th May, 2003.

2005 S C M R 1671

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry Hamid Ali Mirza and Falak Sher, JJ

Mst. SARDAR BIBI and others---Petitioners

Versus

MUHAMMAD KHAN and others ---Respondents

Civil Petition No.2682-L of 2000, decided on 15th July, 2004.

(On appeal from the judgment/order dated 26-9-2000 passed by the Lahore High Court, Lahore in Civil Revision No.455-D of 1986).

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

----S. 7---Talaq, issue of---Proof---Failure to produce notice of Talaq issued by husband to wife in terms of S.7 of Muslim Family Laws Ordinance, 1961---Regarding taking place of such Talaq, party relied upon decision of Union Council, which was tendered in proceedings by his counsel---Validity---Such decision, if not produced in evidence in accordance with law, would have no evidentiary value---Principle illustrated.

Sh. Naveed Shahryar, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 15th July, 2004.

2005 S C M R 1673

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

ABDUL SHAKOOR and others---Petitioners

Versus

PROVINCE OF THE PUNJAB and 4 others---Respondents

C.P.L.A. No.1245-L of 1999, decided on 27th January, 2003.

(On appeal from the judgment dated 27-7-1999 of the Lahore High Court, Lahore, passed in C.R. No.802 of 1983).

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

---O. XVII, R.3---Dismissal of suit for non-production of evidence by plaintiff in spite of having availed 14 adjournments for such purpose---Validity---Such order would not warrant any interference.

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

---Ss. 30 & 32---Allotment got by fraudulent means---Effect---Subsequent possession of such person would amount to encroachment and being encroacher, question of entitlement would not arise.

(c) Administration of justice---

---No relief can be granted on basis of sheer and fine technicalities.

Ch. M. Ashraf, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Petitioners.

Abdul Wahid Chaudhry, Advocate Supreme .Court and Ozair Chughtai, Advocate-on-Record (absent) for Respondents.

Date of hearing: 21st January, 2003.

2005 S C M R 1676

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and M. Javed Buttar, JJ

KHALID SHAFIQ---Petitioner

Versus

ALLAH DITTA and others ---Respondents

Civil Petition No.1899-L of 2001, decided on 4th August, 2004.

(On appeal from the judgment dated 22-3-2001 passed by the Lahore High Court, Lahore in R.S.A. No.62 of 1985).

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

-------S.19---Transfer --S.19---Transfer of property---Bar contained in S.19 of Colonization of Government Lands (Punjab) Act, 1912---Applicability---Entering into agreement to sell---High Court had not examined all the issues in the light of the material available on record---Both the parties agreed to remand of the case to High Court for considering the issue regarding entering of lessee into agreement to sell with the defendant---Supreme Court conceding to the request of both the parties, remanded the case to High Court for decision afresh---Appeal was allowed.

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Rana Muhammad Anwar, Advocate Supreme Court for Respondents.

Date of hearing: 4th August, 2004.

2005 S C M R 1677

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

KARAM ALI through L.Rs. and others---Petitioners

Versus

SAEE---Respondent

Civil Petitions for Leave to Appeal Nos.933/L and 934/L of 2000, decided on 5th March, 2003.

(On appeal from the judgment dated 8-3-2000 of the Lahore High Court, Lahore, passed in Civil Revisions Nos.762 of 1985 and 710 of 1985).

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Constitution of Pakistan (1973), Art.185(3)---Suit for possession and declaration of title---Plaintiff in declaratory suit claimed to be owner in possession of suit-land while taking exception to entry in Revenue Record as "Hissa Batai Nisafi"---Defendant in suit for possession claimed plaintiff to be his tenant, wherein plea raised by plaintiff was that he had become owner through adverse possession---Trial Court decreed plaintiff's suit, but dismissed defendant's suit---Appellate Court accepted appeal filed by defendant, which judgment was upheld by High Court in revision---Validity---Record showed plaintiff as tenant, while defendant as owner---Plaintiff had taken waivering stances during proceedings i.e. claiming to be owner on basis of an entry in Revenue Record as "Bashrah Malkan" and also claiming adverse possession---No convincing evidence had been brought on record to substantiate claim of adverse possession or that of ownership---Supreme Court dismissed petition and refused leave to appeal.

Rana Abdul Rahim Khan, Advocate Supreme Court for Petitioners.

Nemo for Respondent.

Date of hearing: 5th March, 2003.

2005 S C M R 1679

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Sardar Muhammad Raza Khan and Karamat Nazir Bhandari, JJ

MUHAMMAD ZAMAN---Appellant

Versus

MUHAMMAD AFZAAL and others---Respondents

Criminal Appeal No.183 of 1996, decided on 14th November, 2003.

(On appeal from the judgment, dated 2-7-1995 passed by the Lahore High Court, Lahore in Murder Reference No.291 of 1992, Criminal Appeal No.720 of 1992, Criminal Review No.656 of 1992 and Criminal Review No.419 of 1993).

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

----S. 417---Penal Code (XLV of 1860), S.302/34---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---Presence of complainant- at the spot at relevant time was highly improbable and two other prosecution witnesses being chance witnesses, their testimony required strong corroboration, but same was not available at all---All witnesses had stated that accused had fired hundred of rounds on the spot, but not even a single empty was recovered from the spot---Non ­recovery of empties, was indicative of two glaring facts; firstly, that the eye-witnesses were not present on the spot and; secondly that spot indicated by the complainant was not the place of occurrence---Occurrence had not taken place in the manner described by the said witnesses---In absence of any other evidence, abscondence of some of accused, would lose its significance---High Court, in circumstances had rightly extended benefit of doubt to accused and had rightly acquitted them of the charge levelled against them.

Muhammad Abdus Saleem, Senior Advocate Supreme Court with Imtiaz Muhammad Khan, Advocate-on-Record for Appellant.

Rashad Ali Chaudhary, Advocate Supreme Court for Respondents Nos. 1 and 2.

Gabrial Francis, Advocate Supreme Court for Advocate-General Punjab for the State.

Date of hearing: 14th November, 2003.

2005 S C M R 1683

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Faqir Muhammad Khokhar and Falak Sher , JJ

MATEEN HAIDER---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and others---Respondents

Civil Petition No.2596-L of 2000, decided on 5th June, 2003.

(On appeal from the order dated 11-10-2000 passed by the Lahore High Court, Lahore in Writ Petition No.13816 of 1999).

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.185(3)---Suit for recovery of amount and gold ornaments as dower---Wife alleged in plaint that she was transferred 1/4th share in house by her husband, but she did not claim decree qua house in prayer clause---Family Court decreed suit for recovery of amount and gold ornaments---Appellate Court dismissed appeal, but granted on his own decree regarding ownership rights in house, against which Constitutional petition before High Court was filed, but same was dismissed---Validity---Wife had never felt aggrieved of decree passed by Family Court as no appeal had been filed as regards alleged rights in house nor she had filed cross-objections---Appellate Court was not justified to grant decree as regards alleged ownership rights in house particularly in view of denial of alleged transfer of share in house as dower and entries in Nikahnama being forged and result of interpolation---Decree for recovery of amount and gold ornaments passed by Courts below did not suffer from any illegality---Supreme Court partly accepted appeal and set aside decree relating to 1/4th share in house passed by Appellate Court and maintained by High Court.

Syed Iftikhar Hussain Shah, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Respondent No.2 (in person).

Nemo for the Remaining Respondents.

Date of hearing: 5th June, 2003.

2005 S C M R 1685

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Faqir Muhammad Khokhar, JJ

MUHAMMAD ISMAIL QURESHI and another---Petitioners

Versus

Mst. SAIRA JABEEN---Respondent

Civil Petitions Nos.315-L to 321-L of 2004, decided on 8th July, 2004.

(On appeal against the judgment, dated 12-4-2004 passed by the Lahore High Court, Lahore in Criminal Originals Nos.700-W to 706-W of 2002).

Constitution of Pakistan (1973)---

----Arts. 199 & 204---Contempt proceedings for non-compliance of order passed in Constitutional petition---Relief not granted earlier to petitioner by High Court could not be granted by it in contempt proceedings---Principle illustrated.

Muhammad Rashid Ahmed, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioners.

Pervaiz I. Mir, Advocate Supreme Court and Ch. M. Hanif Zahid, Advocate-on-Record for Respondents.

Date of hearing: 8th July, 2004.

2005 S C M R 1687

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

DIRECTOR, PUNJAB EMPLOYEES SOCIAL SECURITY INSTITUTIONS, MULTAN and others---Petitioners

Versus

Messrs MONNOWAL TEXTILE MILLS LTD and others---Respondents

Civil Petitions. for Leave to Appeal Nos.1277/L to 1279/L and 1322/L of 2002, decided on 6th March, 2003.

(On appeal from the judgments dated 18-2-2002 and 26-2-2002 of the Lahore High Court, Lahore, passed in F.A.Os. Nos.8 to 10 of 2002 and 27 of 2002).

Provincial Employees Social Security Ordinance (X of 1965)-----

----S. 23(1)---Constitution of Pakistan (1973), Arts.25 & 185(3)---Issuance of notices for increased demand by Institution to employers---Appellants (employers) took exception to such demand being discriminatory for having been made from employers, who had not approached Courts against earlier demand notices issued under S.23(1) of Provincial Employees Social Security Ordinance, 1965---Appeal filed by appellants was accepted by High Court---Validity---Such act on the part of Institution was certainly violative of Art.25 of the Constitution---High Court had not committed illegality in giving same treatment to appellants (employers) as had been meted out to other employers placed in similar circumstances---Supreme Court dismissed petition and refused leave to appeal.

Shamas Textile Mills and others v. Province of Punjab and 2 others 1999 SCMR 1477 ref.

Ch. Muhammad Mujahid Ahmad, Advocate Supreme Court for petitioners.

Imtiaz Rashid Siddiqui, Advocate Supreme Court with Sh. Salahuddin, Advocate-on-Record for Respondents.

Date of hearing: 6th March, 2003.

2005 S C M R 1689

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C.J. and Qazi Muhammad Farooq, J

MUHAMMAD SADIQ---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.352-L of 2003, decided on 29th October, 2003.

(On appeal from the judgment dated 29-4-2003 of the Lahore High Court, Lahore passed in Criminal Appeal No.361 of 2003).

Constitution of Pakistan (1973)---

----Art. 185(3)---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Accused/petitioner while in possession of heroin weighing 200 grams, was apprehended red-handed by raiding police party and was convicted and sentenced by the Court---Petitioner had urged that he was a school teacher and had been falsely implicated in the case by police but he had failed to bring on record anything to substantiate his alleged false implication by police---No illegality or infirmity in the impugned judgment had been pointed out by the petitioner warranting interference by Supreme Court---Petition for leave to appeal being devoid of merit, was dismissed and leave to appeal was declined accordingly.

Ch. Muhammad Afzal Wahla, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 29th October, 2003.

2005 S C M R 1690

[Supreme Court of Pakistan]

Present: Javed Iqbal and Tanvir Ahmed Khan, JJ

MUHAMMAD IDREES---Petitioner

Versus

Mst. ZEENAT BIBI---Respondent

Civil Petition No.1926-L of 2002, decided on 18th February, 2003.

(On appeal from the order dated 27-5-2002 of the Lahore High Court, Lahore, passed in C.R. No.1139 of 2002).

(a) Islamic Law-----

----Gift---Proof---Categorical denial of gift by donor---Effect---Factum of gift had to be proved by donee being beneficiary on basis of cogent and ,concrete evidence.

(b) Islamic Law---

----Gift---Essential ingredients of valid gift i.e. declaration and acceptance of gift, delivery of possession---Non-proving such essential ingredients---Effect---Brother and sister inherited land through mutation attested on 6-8-1983---Brother claimed his sister's share to have been gifted to him by her through mutation attested on 13-8-1983, in respect of which Rapat Roznamcha Waqiati was allegedly made on 28-7-1983---Sister seriously denied factum of gift---In view of such categoric denial brother was bound to prove factum of gift being beneficiary on basis of cogent and concrete evidence---Gift by sister on basis of such Rapat was not possible before attestation of inheritance mutation in her favour---Mentioning certain amount as consideration in gift mutation smacked of mala fides---Brother had not proved handing over to him physical possession of land by sister, without which question of constitution of valid gift would not arise---Neither declaration nor acceptance of gift had been proved on record---Courts of law could not remain oblivious regarding erosion of moral values---Conduct of brother was wroth quoting as its classic example---Held: Gift mutation was result of fraud, thus, ineffective against rights of sister.

Muhammad Yaqoob v. Feroze Khan 2003 SCMR 41; Shamshad A. Shah v. Hassan Shah PLD 1964 SC 143; Hedaya Vol.III, Second Edn. p.482; Amir Ali's Muhammadan Law Vol.I, Chap.V; Baillie's Digest of Muhammadan Law Part 2, 2nd Edn. pp.203, 204; Ramchandra Jivaji Kanago v. Laxman Shrinivas Nair AIR 1945 PG 54; Jamma-ush-Shittat; Sharaya-ul-Islam; Ghulam Hassan v. Sarfraz Khan PLD 1956 SC Pak. 309; Sadik Hussain Khan v. Hashim Ali Khan LR 43 IA 212 and Bashir Ahmed v. Muhammad Rafiq 2002 SCMR 1291 ref.

(c) Islamic Law---

----Gift---Essentials---Question of constitution of valid gift would not arise without delivery of possession of gifted property.

Muhammad Yaqoob v. Feroze Khan 2003 SCMR 41 fol.

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

----S. 42---Wrong mutation---Evidentiary value---Wrong mutation cannot confer a legal right in any property---Revenue Record is meant for collection of revenue and ancillary matters.

(e) Administration of justice---

----Courts of law cannot remain oblivious regarding erosion of moral values.

S. Naimul Hassan Sherazi, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record, (absent) for Petitioner.

Nemo for Respondent.

Date of hearing: 18th February, 2003.

2005 S C M R 1695

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

TAJ and others---Petitioners

Versus

ABDUL GHAFOOR and others---Respondents

C.Ps. Nos.1962, 1963 and 1964-L of 2000, decided on 14th May, 2003.

(On appeal from the consolidated judgment dated 30-5-2000 passed by the Lahore High Court, Lahore in Civil Revisions Nos.104, 105 and 106 of 1997).

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

----S. 8---Constitution of Pakistan (1973), Art.185(3)---Suit for possession---Deputy Settlement Commissioner declared plaintiff as owner of suit property---Defendant being in possession of a portion of suit property challenged such decision in Constitutional petition, but failed---Plaintiff's suit against defendant for .recovery of such portion was decreed by Trial Court---Appellate Court set aside decree and remanded case for its decision afresh as plaintiff had failed to produce any document to prove his title---High Court in revision set aside judgment passed by Appellate Court with direction to decide appeal in accordance with law---Validity---Plaintiff had successfully proved his title before Settlement Authorities, which order had been maintained by High Court---Plaintiff in such circumstances was not obliged to produce same evidence of title over and over again---Impugned judgment did not suffer from any illegality---Supreme Court dismissed petition and refused leave to appeal.

Abdul Najeeb Khan Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.

Jari Ullah Khan, Advocate Supreme Court with C.M. Latif, Advocate Supreme Court (N.R.) for Respondents.

Date of hearing; 14th May, 2003.

2005 S C M R 1697

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry Javed Iqbal and Falak Sher, JJ

Mst. WILAYAT BIBI and others---Petitioners

Versus

Mst. HAYAT BEVI and others---Respondents

Civil Petition No.3656-L of 2001, decided on 19th July, 2004.

(On appeal from the judgment/order, dated 20-9-2001 passed by the Lahore High Court, Lahore in Civil Revision No.13-D of 1989).

(a) Arbitration Act (X of 1940)---

---Ss. 17, 30 & 33---Award in respect of property left by deceased having no male issue---Application for making award rule of Court---Signing of arbitration agreement and delivery of award by Arbitrator were alleged to have taken place on same day---No explanation was available on record to show that as to how notices were issued to parties on same day, which were allegedly received by them on same day---Held: Such arbitration agreement and award was a device adopted by petitioner in collusion with Arbitrator to grab the property by getting decree on its basis---Application was dismissed in circumstances.

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

----Art. 185(3)---Impugned judgment based on correct appreciation of facts and law on the subject---Validity---Such judgment would not call for interference by Supreme Court.

Khizar Abbas, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 19th July, 2004.

2005 S C M R 1699

[Supreme Court of Pakistan]

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

MUHAMMAD NAEEM KASI and another---Petitioners

Versus

ABDUL LATIF and 7 others---Respondents

Civil Petition No.53-Q of 2002, decided on 27th January, 2003.

(On appeal from the judgment of High Court of Balochistan, dated 13-8-2002 passed in Constitutional Petition No.170 of 2002).

(a) Balochistan Local Government Elections Rules, 2000---

----R. 71---Election petition---Recounting of votes by Election Tribunal without framing of issues and recording of evidence---Scope---In absence of any prohibition contained in Balochistan Local Government Election Rules, 2000, Election Tribunal is not debarred to carry out recounting of votes without framing of issues and recording of evidence---Election Tribunal in the light of result of recounting of votes, if does not consider necessary to proceed further, it can dispose of election petition forthwith.

(b) Balochistan Local Government Elections Rules, 2000-

----R. 71---Constitution of Pakistan (1973), Art.185(3)---Election petition---Recounting of votes, prayer for---Election Tribunal on the basis of result of recounting of votes carried out in presence of parties declared petitioners as successful candidates---High Court in Constitutional petition upheld decision of Election Tribunal---Contention of respondents was that such summary disposal of election petition by Election Tribunal without framing of issues and recording of evidence was not legal---Validity---Petitioners before announcement of official result had in writing pointed out to the Returning Officer the irregularity in counting of votes and change of result of polling station in question,. which complaint had remained unattended---Respondents had not alleged at any stage that ballot-papers had been tampered with before recounting of votes by the Election Tribunal---No prejudice had been caused to respondents' case on merits by such summary disposal of election petition, which was not an illegal exercise of jurisdiction of Election Tribunal---Supreme Court dismissed petition and refused leave to appeal.

(c) Balochistan Local Government Elections Rules, 2000---

----R. 71---Jurisdiction of Election Tribunal---Scope---Election Tribunal having exclusive jurisdiction could not be a Tribunal of unlimited and indefinite jurisdiction---Ambit of operation of Election Tribunal was confined strictly within four corners of law under which the same was created---Procedural irregularity not causing prejudice to the case of either party would not render judgment of Election Tribunal as illegal.

(d) Jurisdiction---

----Decision of dispute by Tribunal with consent of parties in a manner not prohibited by law or beyond its jurisdiction-Effect-Word "jurisdiction" means power to hear and decide legal controversy between parties to pronounce judgment as per requirement of law---Where parties expressly or impliedly consented for decision of dispute in a manner not involving lengthy procedure of law and decision in such manner was not prohibited in law or beyond jurisdiction of Tribunal, then parties would be estopped to subsequently, raise an objection to disposal of matter in such manner.

M. Bilal, Senior Advocate Supreme Court and Mir Aurangzaib, Advocate-on-Record (absent) for Petitioners.

M. Ayaz Swati, Advocate Supreme Court and Anwar Khan Durrani, Advocate-on-Record (absent) for Respondents.

Date of hearing: 27th January, 2003.

2005 S C M R 1703

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Faqir Muhammad Khokhar, JJ

LIAQAT ALI and others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Civil Petition No.2754-L of 2002, decided on 8th July, 2004.

(On appeal against the judgment dated 10-6-2002 passed by the Lahore High Court, Lahore in Civil Revision No.1285 of 2002).

Specific Relief Act (I of 1877)---

----S.8---Constitution of Pakistan (1973), Art.185 (3)---Recovery of possession---Permanent Transfer Order, non-production of---Record of Excise and Taxation Department---Proof of ownership---Suit was filed by the plaintiffs who sought recovery of possession on the ground that their predecessor-in-interest was the owner of the property and produced record of Excise and Taxation Department in proof thereof---Suit was dismissed by Trial Court but Appellate Court allowed the appeal and the suit was decreed---Judgment and decree passed by Appellate Court was maintained by High Court in exercise of its revisional jurisdiction---Contention of the defendant was that plaintiffs had failed to produce documents to substantiate that their predecessor-in-interest was the owner of the property but High Court under wrong impression considered him to be the owner of the property on the basis of Permanent Transfer Order, whereas according to him no such Permanent Transfer Order was produced before the Trial Court, as such they had no proprietary rights in respect of disputed property on the basis of PT-1 issued by Excise and Taxation Department---Defendant further contended that PT-1 issued by Excise and Taxation Department could not be considered as sufficient proof of the ownership of the predecessor-in-interest of the plaintiffs---Plea raised by the plaintiffs was that Permanent Transfer Order was issued in favour of their predecessor-in-interest and in pursuance of the documentary evidence produced from Excise and Taxation Department, ownership of their predecessor-in-interest was proved--- Leave to appeal was granted by Supreme Court to consider the contentions of both the parties.

Dr. Muhammad Akmal Saleemi, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record for Petitioners.

Mian Waheed Akhtar, Advocate Supreme Court and Ch. Mehdi Khan, Advocate-on-Record (absent) for Respondents.

Date of hearing: 8th July, 2004.

2005 S C M R 1706

[Supreme Court of Pakistan]

Present: Javed Iqbal and Tanvir Ahmed Khan, JJ

SHAABAN and others---Petitioners

Versus

Mst. SHAMIM AKHTAR and others---Respondents

Civil Petitions for Leave to Appeals Nos.1516/L and 1517/L of 2001, decided on 19th February, 2003.

(On appeal from the judgment dated 18-4-2001 of the Lahore High Court, Lahore, passed in R.S.As. Nos.258 of 1982 and 210 of 1985).

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

----S. 21---Constitution of Pakistan (1973), Art.l85(3)---Partial pre-emption, plea of---Out of two sets of vendees, pre-emptors initially filed. suit against only one set of vendees but subsequently by the order of Trial Court the other set of vendees was also impleaded---Such order of the Trial Court was not assailed by the vendees before any forum---Plea raised by the vendees was that as the suit against the other set of vendees was not filed within limitation, therefore, the suit was liable to be dismissed on the principle of partial pre-emption---Validity. Such being an inadvertent omission on the part of pre-emptors for not impleading the second set of vendees at the initial stage as they were claiming entire sale by offering total sale price, such technical objection should not come in the way of substantial justice---Technical knock out should sparingly be resorted to as procedures are meant just to foster the cause of justice and not to thwart the same---Leave to appeal was refused.

Muhammad Khan v. Abdul Khaliq Khan PLD 1981 SC 153 distinguished.

Ch. Riyasat Ali, Advocate Supreme Court with Mahmood A. Qureshi, Advocate-on-record for Petitioners.

Shaukat Ali Mehr, Advocate Supreme Court for Respondents.

Date of hearing: 19th February, 2003.

2005 S C M R 1709

[Supreme Court of Pakistan]