SCMR 2006 Judgments

2006 SCMR 1

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and M. Javed Buttar, J

SHER KHAN---Petitioner

Versus

UNITED BANK LTD. and others ---Respondents

Civil Petitions Nos.560-K of 2004 and 602-K of 2005, decided on 22nd November, 2005.

(On appeal from the judgment, dated 13-4-2004 and 15-7-2005 passed by Federal Service Tribunal, Karachi in Appeal No. 154(K) of 1998 and Appeal No.926(K) CE of 2004).

Service Tribunals Act (LXX of 1973)---

----S. 2-A---Constitution of Pakistan (1973), Art.212(3)---Contention of petitioner was that in view of judgments of the Supreme Court, Service Tribunal, despite the process of privatization of the Bank, would continue to exercise its jurisdiction in respect of its employees and on the other hand respondent's' contention by referring to another judgment of the Supreme Court, was that Service Tribunal would have no jurisdiction to decide the cases of the employees whose cases were covered by S.2-A, Service Tribunals, Act, 1973---Leave to appeal was granted by the Supreme Court to examine the respective contentions of the parties which raised a question of public importance relating to the validity or otherwise of S.2-A of the Service Tribunals Act, 1973.

Manzoor Ali and 39 others v. United Bank Limited through President 2005 SCMR 1785; Muhammad Yousaf Qureshi and others v. Messrs United Bank and others C. As. Nos. 99, 108, 111 and 114 of 2004 a/w C.Ps. 571-L, 1057-L, 1061-L and 1064-L of 2004; C.P. No.247-L of 1998 and C.Ps. Nos.2767-L, 3030-L of 2000, 157-L and 235 of 2001 and Salmond on Jurisprudence ref.

Muhammad Muzaffarul Haq, Advocate Supreme Court for Petitioner (in Civil Petition No.560-K of 2004).

Mehmood A. Ghani, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondents (in Civil Petition No.560-K of 2004).

Shahid Hussain Bajwa, Advocate Supreme Court and Ahmad Ullah Farooqi, Advocate-on-Record for Petitioner (in Civil Petition No.602-K of 2005).

Respondent No.1 in person (in Civil Petition No.602-K of 2005).

Date of hearing: 22nd November, 2005.

2006 S C M R 4

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ

PERVAIZ and another---Petitioners

Versus

MUHAMMAD NAWAZ---Respondent

Civil Petitions Nos. 1368 and 1369 of 2004, decided on 6th July, 2005.

(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, Rawalpindi dated 15-4-2004 passed in Civil Revisions Nos.488-D and 489-D of 2003 respectively).

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

----S. 13---Right of pre-emption, exercise of---Pre-condition ---Talb-i-Muwathibat and Talb-i-Ishhad---Scope---Compliance of provisions of S.13(3) of Punjab Pre-emption Act, 1991---Presumption---For exercise of right of pre-emption, performance of Talb-i-Muwathibat and Talb-i-Ishhad in terms of S.13 of Punjab Pre-emption Act, 1991, is essential---Talb-i-Muwathibat is first demand through which a pre-emptor on coming to know about sale immediately declares his intention to exercise right of pre-emption and Talb-i-Ishhad is second demand which is made in the manner as provided in 5.13(3), Punjab Pre-emption Act, 1991, not later than two weeks from the date of knowledge and making of Talb-i-Muwathibat---Requirement of Talb-i-Ishhad is made by sending notice in writing attested by two truthful witnesses under registered cover to vendee---Compliance in accordance with the provisions of S.13(3) of Punjab Pre-emption Act, 1991, gives rise to a presumption that the notice was duly served---Such presumption is rebuttable presumption and if it is proved that notice of Talb-i-Ishhad was not served, the suit may fail.

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

----S. 13---Constitution of Pakistan (1973), Art. l 85(3)---Right of pre-emption, exercise of---Service of notice of Talb-i-Ishhad---Requirement---Vendee was residing in foreign country and pre-emptors posted notice of Talb-i-Ishhad at the ordinary place of residence of vendee---Acknowledgement due receipt was received by pre-emptors, which was placed on record---Trial Court as well as lower Appellate Court dismissed the suit and appeal of pre-emptors respectively but High Court in exercise of revisional jurisdiction set aside the concurrent findings of two Courts below and decreed the suit in favour of pre­emptors---Validity---Service of notice of Talb-i-Ishhad at the ordinary postal address of vendee under registered cover acknowledgement due was sufficient---Purpose of giving notice of Talb-i-Ishhad was to acknowledge the right of pre-emption and to convey intention of exercising such right by way of filing of suit---Such notice was in fact an intimation and prior information to vendee of the suit-land---Service of notice either in person or through an agent was sufficient ---Pre-emptors had pleaded in plaint of making Talb and also brought on record oral and documentary evidence to prove the service of notice of Talb-i-Ishhad in the manner as prescribed in S.13(3) of Punjab Pre-emption Act, 1991, therefore, requirement of giving information to vendee for filing suit was properly fulfilled---Suit could not be defeated on the basis of technical objection that notice was not served in person---Courts below through misreading of evidence drew a wrong conclusion and dismissed the suit---Such error was corrected by High Court in its revisional jurisdiction---Supreme Court did not find any factual or legal infirmity or jurisdictional error in the judgment of High Court---Leave to appeal was refused.

Abdul Malik v. Muhammad Latif 1999 SCMR 717; Abdul Qayyum v. Muhammad Rafique 2001 SCMR 1651 and Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360 ref.

(c) Pre-emption---

---- Law of pre-emption ---Concept of law of pre-emption is that a stranger should not be allowed to purchase property in preference to persons who have the first right of purchase but at the same time condition of Talb for exercise of right of pre-emption has been provided in law to discourage unnecessary litigation.

Sheikh Ahsan-ud-Din, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners (in both cases).

Nemo for Respondent.

Date of hearing: 6th July, 2005.

2006 S C M R 10

[Supreme Court of Pakistan]

Present: Falak Sher and Syed Jamshed Ali, JJ

DISTRICT OFFICER, AGRICULTURE (EXTENSION), SARGODHA and another---Petitioners

Versus

ATTA ULLAH---Respondent

Civil Petition No.2628/L of 2003, decided on 14th October, 2005.

(On appeal from the judgment, dated 6-8-2003 passed by Punjab Service Tribunal, Lahore in Appeal No.482 of 2002).

(a) Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)---

----Ss. 3, 11, 12 & 13---Removal from service---Wilful absence from duty---Period of such absence related to partly before and partly after promulgation of Punjab Removal from Service (Special Powers) Ordinance; 2000---Validity---Nobody could claim a vested right in procedure---Proceedings had rightly been taken against civil servant under Ordinance, 2000.

(b) Administration of justice---

----Nobody could claim a vested right in the procedure.

Aziz Ahmad Chughtai, Advocate Supreme Court for Petitioners.

Respondent in person.

Date of hearing: 14th October, 2005.

2006 S C M R 12

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Muhammad Nawaz Abbasi, JJ

Sheikh MUHAMMAD SADIQ---Petitioner

Versus

ELAHI BAKHSH and 2 others---Respondents

Civil Petition No. 1602 of 2005, decided on 23rd May, 2005.

(On appeal from the judgment, dated 1-2-2005 passed by Lahore High Court, Multan Bench, in Writ Petition No. 8139 of 1995).

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

----Art. 199---Constitutional petition---Factual controversy, resolution of---Principles---High Court, in exercise `of its Constitutional jurisdiction is not supposed to dilate upon controversial questions of facts and to interfere in concurrent findings on such questions---If findings of fact are based on misreading or non-reading of evidence or are not supported by any evidence, High Court, without any hesitation, can interfere in the matter, in its Constitutional jurisdiction.

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

----S. 12---Civil Procedure Code (V of 1908), S.12(2)---Constitution of Pakistan (1973), Arts.185(3) & 199---Constitutional jurisdiction of High Court---Decree based on fraud and misrepresentation, setting aside of---Admission of signatures on written statement---Effect---Suit for specific performance of agreement to sell was decreed in favour of plaintiff on the first date fixed for appearance of defendant---Decree was passed on the basis of consenting written statement---Defendant filed application under S.12(2), C.P.C. for setting aside the decree on ground of fraud and misrepresentation---Though defendant admitted his signatures on written statement but he refused to have engaged the counsel in that case who filed written statement---Contention of the defendant was that the counsel, who filed the written statement, was his counsel in some other case and was closely related to plaintiff, who had obtained his signatures on blank paper for use in other case but fraudulently misused his signatures in the present case---Application was dismissed by Trial Court as well as by Appellate Court but High Court in Constitutional jurisdiction set aside the decree--- Plea raised by plaintiff was that concurrent findings of two Courts below could not be set aside in exercise of Constitutional jurisdiction---Validity---Mere admission of defendant that his signatures on the written statement were in his hand, would not be sufficient to draw an adverse inference in view of the explanation of defendant---Explanation of defendant was plausible as it was usual practice of Advocates in subordinate Courts that they kept blank papers with signatures of their clients in their brief for emergent use, therefore, mere fact that the signatures of defendant appeared on written statement would not be sufficient to prove his personal appearance without his proper identification in the Court---Defendant was identified in Trial Court by a counsel who was closely related to plaintiff and was not personally known to defendant therefore, doubt arose qua identification of defendant and genuineness of the transaction and it would reasonably suggest that the written statement was prepared on the paper bearing signatures of defendant without his consent and knowledge---Jurisdictional error committed in judicial or quasi-judicial proceedings by a Court or Tribunal, as the case might be, could be corrected by High Court in its Constitutional jurisdiction---In normal circumstances, if a decree was set aside under S. 12(2), C.P.C., the case was remanded to Trial Court for decision of suit on merits in accordance with law---In the facts and circumstances of the present case and evidence brought on record by the parties in the proceedings under S.12(2), C.P.C. High Court, rightly set aside the decree and dismissed the suit as no useful purpose would be served in remanding the case to Trial Court---Supreme Court declined to interfere in the judgment passed by High Court in its Constitutional jurisdiction --- Leave to appeal was refused.

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

----S. 12(2)---Setting aside of decree---Limitation---Decree sought to be set aside was passed in the year, 1971 but application under S.12(2), C.P.C. was filed in year, 1986---Plea raised by applicant was that he came to know about decree in the year, 1986, and had immediately filed the application---Validity---Limitation for setting aside an order obtained through fraud or misrepresentation, would start from the date of knowledge---As the applicant had stated that he filed application under S.12(2), C.P.C. immediately on coming to know about the decree in year, 1986, therefore, in absence of any evidence to the contrary, the presumption would be that applicant had no knowledge of decree, before the year 1986---Application was not barred by limitation.

Sardar M. Rafiq, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 23rd May, 2005.

2006 S C M R 18

[Supreme Court of Pakistan]

Present: Javed Iqbal, Mian Shakirullah Jan and Tassaduq Hussain Jillani, JJ

CHAIRMAN PAC BOARD, KAMRA and 3 others---Petitioners

Versus

AZHAR HUSSAIN---Respondent

Civil Petition No.3095 of 2003, decided on 23rd September, 2005.

(On appeal from the judgment, dated 11-9-2003 of Federal Service Tribunal, Islamabad, passed in Appeal No.697(R)CS of 2000).

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art. 212 (3)---Advance increments, grant of---Principles---Civil servant after his retirement from Pakistan Air Force was re-employed---Authorities declined two advance increments to the civil servant---Service Tribunal allowed the appeal of civil servant and directed the authorities that the civil servant was entitled to continuation of advance increments after he was re­employed---Validity---Leave to appeal was granted by Supreme Court to consider; whether duplicate benefit of advance increments could be availed twice i.e. in the former service and subsequent service; whether merger of two advance increments granted to civil servant in his substantive pay and pension would make him further entitled to obtain two advance increments again from his subsequent employment; whether instructions as contained in Establishment Division O.M. 10/52/95/R-2, dated 18-7-1996, Finance Division (Reg. Wing) O.M. No.F-5(4)R-3/96, dated 16-4-1996, Finance Division O.M. No.F-4(7)Reg.4/72, dated 1-1-1973, O.M. No.F-4(11)Reg.7/72, dated 11-1-1973 and O.M. No.F-6 (6-R.3)84/615, dated 1.8.1984, should have been considered by Service Tribunal while deciding the controversy; whether civil servant pursuant to his appointment letter, would be governed by Government Servants (Conduct) Rules, 1964, Government Servants (Efficiency and Discipline) Rules, 1973 and other Government orders / instructions; whether principle of locus poenitentiae could be pressed into service in view of the dictum laid down by Supreme Court in its various judgments; and what would be the impact of Finance Division O.M. No.F-4(7)Reg.4/92, dated 1-1-1973.

Chairman Selection Committee v. Wasif Zamir Ahmad 1997SCMR 15 and Chairman Minimum Wage Board v. Fayyaz Khan Khattak 1999 SCMR 1004 ref.

Raja Muhammad Irshad, D.A.-G. and Ch. Muhammad Akram, Advocate-on-Record for Petitioners.

Ch. Afrasiab Khan, Advocate Supreme Court for Respondent.

Date of hearing: 23rd September, 2005.

2006 S C M R 21

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Khalil-ur-Rehman Ramday and Muhammad Nawaz Abbasi, JJ

NESTLE MILKPAK LIMITED---Petitioner

Versus

CLASSIC NEEDS PAKISTAN (PVT.) LTD. and 3 others---Respondents

Civil Petition No.2785-L of 2004, decided on 4th April, 2005.

(On appeal from the judgment, dated 15-7-2004 passed by Lahore High Court, Lahore, in Civil Revision No. 1814 of 2004).

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S.115 & O.XXXIX, Rr.1 & 2---Constitution of Pakistan (1973), Art. 185(3)---Ad­ interim stay, when a case decided'---Plaintiff being aggrieved of award of contract to defendant filed suit and sought interim injunction---Trial Court dismissed the application for interim injunction---Appeal was filed against dismissal of stay application and Appellate Court granted ad-interim injunction at the time of filing of appeal and suspended the contract---Defendant assailed ad-interim injunction before High Court in revisional jurisdiction---High Court set aside ad-interim injunction and directed the Appellate Court to decide appeal after hearing the parties---Plea raised by plaintiff was that no revision could be filed before High Court as order passed by Appellate Court was not acase decided'---Validity---Order which did not qualify the test of `case decided' could not be challenged in revisional jurisdiction under S.115 C.P.C.---Normally revision petition against interim order was not maintainable but interim order which was passed after considering the facts, if found perverse or suffering from jurisdictional defect, revisional Court could, in the interest of justice, interfere in such order---Order passed in improper exercise of jurisdiction if was not interfered with, it might lead to injustice or hardship and if an interim order by its inception appeared to be final order and also had effect of final order, such order could be corrected in revisional jurisdiction---Court at the time of preliminary hearing of a matter, was expected to also safeguard interest of the party which was not present before the Court and should not pass order at such stage which might cause inconvenience to other parties or public in general---Supreme Court set aside both the orders passed by Appellate Court in appeal as well as by High Court in revision and remanded the case to District Judge for decision of appeal after hearing both the parties---Petition was disposed of accordingly.

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

----S. 115---Revision Expression case decided'---Scope---Expressioncase decided' is not necessarily confined to filial order, rather it may, in the peculiar facts and circumstances of the case, relate to an interlocutory order passed at any stage of proceedings including an interim order requiring application of mind.

M. Farooq Amjad Mir, Advocate Supreme Court for Petitioner.

M.S. Hamid Khan, Advocate Supreme Court for Respondents No. 1.

Abbas Mirza, Advocate Supreme Court for other Respondents.

Date of hearing: 4th April, 2005.

2006 S C M R 25

[Supreme Court of Pakistan]

Present: Javed Iqbal and Tassadduq Hussain Jillani, JJ

NOOR MUHAMMAD through L.Rs.---Appellants

Versus

Mst. MUZAFFAR BIBI and others---Respondents

Civil Appeal No. 1952 of 2000, decided on 27th September, 2005.

(On appeal from the judgment, dated 12-5-1999 of the Lahore High Court, Rawalpindi Bench, passed in Civil Revision No.256/D of 1986).

Specific Relief Act (I of 1877)---

----S. 42---Pakistan Rehabilitation Act (XLII of 1956), S.6(1)---Rehabilitation and Settlement Scheme, paras. 4-A(ix) & 44-A---Suit for declaration of title---Allotment, cancellation of---Land proposed for allotment---Disputed land was temporarily allotted to plaintiff on 24.9.1960 and possession was handed over to him---Later on the allotment was cancelled by competent authority and the land was allotted to defendant on 16.1.1961, on the ground that prior to allotment of land in favour of plaintiff, earlier on 11.4.1960, suit-land was proposed for allotment in favour of the defendant---Suit was dismissed by Trial Court but Appellate Court allowed the appeal and the suit was decreed---High Court, in exercise of revisional jurisdiction, set aside the judgment and decree passed by Appellate Court and the suit was dismissed---Plea raised by plaintiff was that after temporary allotment of land to plaintiff, the land went out of compensation pool and the same was not available for allotment---Validity---Nothing was on record to show that after initial proposal in favour of defendant, he was put into possession of the suit­ land---Defendant had not even pleaded in his written statement that possession was handed over to him on the day when initial proposal was made or even after the allotment i.e. 16.1.1961---Rehabilitation Scheme framed under S.6 of Pakistan Rehabilitation Act, 1956, was already in vogue when the allotment of land was confirmed in favour of defendant---Land allotted on temporary basis to Jammu and Kashmir refugees stood excluded under para. 4-A (ix) of Rehabilitation Scheme---Legislative intent was further clarified by para. 44-A of the Scheme---Competent authority, while making allotment in favour of defendant, failed to realize that the suit land was no longer available for allotment as it stood excluded from the compensation pool after its temporary allotment in plaintiff's name---Judgment and decree passed by High Court was set aside and the suit was decreed in favour of plaintiff---Appeal was allowed.

Mst. Sakina Bibi and another v. Manila and 2 others PLD 1977 Lahore 202; Jan Muhammad and others v. Sher Muhammad and another PLD 1979 SC 985; Manzoor Hussain and 6 others v. Zulfiqar Ali and 8 others 1983 SCMR 137; Muhammad Azim and others v. Ali Mohtashim and others 1994 SCMR 555; Mian Rafi-ud-Din and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others PLD 1971 SC 252 and Province of Punjab and others v. Muhammad Mahmud Shah and others 1992, PSC 876 ref.

Dost Muhammad and others v. Mst. Badal Jan and others 1976 SCMR 112; Muhammad Din and 3 others v. Allah Lok and 3 others 1989 SCMR 323 and Ghulam Muhammad v. Ahmad Khan PLD 1991 SC 391 rel.

Wali Muhammad v. Settlement Commissioner, Sargodha Division Sargodha and another 1984 SCMR 1574 and Inayat Bibi and others v. Assistant Settlement Commissioner and Chief Settlement Commissioner PLD 1978 Lah. 252 distinguished.

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

Muhammad Younas Bhatti, Advocate Supreme Court for Respondent No. 1.

Ex parte for other Respondents.

Date of hearing: 27th September, 2005.

2006 S C M R 33

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and M. Javed Buttar, JJ

LIAQAT---Petitioner

Versus

THE STATE---Respondent

Jail Petition No. 194 of 2003, decided on 20th July, 2005.

(On appeal from the judgment of Peshawar High Court, Peshawar, dated 27-5-2003 passed in Criminal Appeal No.342 of 2002 and Murder Reference No.24 of 2002).

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

---- Ss. 302(b) & 337-A(iv)---Constitution of Pakistan (1973), Art. 185(3)---No descirbable discrepancy or lacuna was available in the prosecution evidence to suggest that the occurrence had not taken place in the manner as stated by the eye-witnesses---Presence of eye-witnesses at the place of occurrence was quite natural---Ocular testimony had inspired confidence---Mere report of Ballistic Expert regarding all crime-empties having been fired from the same fire-arm, was not sufficient to discard the evidence of natural and independent witnesses having no enmity with the accused---Absence of weakness of motive was not a valid ground to disbelieve the independent and confidence-inspiring ocular account of occurrence---Ocular evidence was corroborated by medical evidence and the recovery of crime weapon---Leave to appeal was declined to accused in circumstances.

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

---- Ss. 302(b) & 337-A(iv)---Appreciation of evidence---Motive---Principle---Substitution is a rare phenomenon whereas enmity is considered a double-edged weapon, but since the motive is not an essential ingredient for the crime, its absence or weakness may not reflect upon the direct evidence.

Sh. Masood Ahmed, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 20th July, 2005.

2006 S C M R 37

[Supreme Court of Pakistan]

Present: Javed Iqbal and Mian Shakirullah Jan, JJ

WAZIR ALI SOOMRO---Appellant

Versus

WATER AND POWER DEVELOPMENT AUTHORITY and others---Respondents

Civil Appeal No.583 of 2003, decided on 15th September, 2005.

(On appeal from the judgment of the Federal Service Tribunal, Lahore, dated 12-2-2000 passed in Appeal No. 1473/L, of 1999).

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

----S. 17(1-A(a)---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art.212(3)---Compulsory retirement---Failure to give show-cause notice---Non-compliance of provisions of 5.17(1-A)(a) of Pakistan Water and Power Development Authority Act, 1958---Non-speaking order---Effect---Civil servant was compulsorily retired from service without giving any reason and without any show cause notice---Appeal filed by civil servant was dismissed by Service Tribunal---Validity---Appeal was decided by Service Tribunal in a perfunctory and slipshod manner by means of a non-speaking order without assigning any reason---No show cause was issued to the civil servant which should have been issued pursuant to the dictum laid down by Supreme Court in various judgments---Authorities assured that disciplinary proceedings would be initiated afresh strictly in accordance with law and the guidelines enumerated by Supreme Court, in line with the provisions enumerated in S.17(1-A)(a) of Pakistan Water and Power Development Authority Act, 1958---Judgment of Service Tribunal being laconic was set aside and authorities were allowed to initiate fresh disciplinary proceedings in accordance with law.

WAPDA v. Zulfiqar Ali PLD 1988 SC 693; Ejaz Nabi Abbasi v. WAPDA 1992 SCMR 774; Pakistan and others v. Public-at-large and others PLD 1987 SC 304 and WAPDA v. Sikandar Ali Abro 1998 SCMR 137 rel.

Hafiz Tariq Nasim, Advocate Supreme Court and Tanveer Ahmed, Advocate-on-Record (absent) for Appellant.

Faiz-ur-Rehman, Advocate-on-Record for Respondents.

Date of hearing: 15th September, 2005.

2006 S C M R 41

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ

NAVEED AHMED MALIK---Petitioner

Versus

DISTRICT OFFICER (REVENUE) NOTIFIED OFFICER, DISTRICT COURTS, LAHORE and 22 others---Respondents

Civil Petition No.2713 of 2004, decided on 16th February, 2005.

(On appeal from the judgment, dated 18-11-2004 passed by Lahore High Court, Lahore, passed in Writ Petition No.29/R of 2004).

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

----S. 2---Constitution of Pakistan (1973), Art. 185(3)---Evacuee property---Status, determination of---Controversy regarding the evacuee nature of the disputed property went upto Supreme Court, from where the matter was remanded to Notified Officer with certain directions---Notified Officer, after hearing the parties at length and having made detailed scrutiny of facts, decided the matter in favour of respondents---Decision of Notified Officer was maintained by High Court in exercise of Constitutional jurisdiction---Plea raised by the petitioner was that property involving evacuee interest was liable to be transferred under evacuee laws---Validity---Conclusion drawn by Notified Officer was in accordance with law as the disputed property was never treated as an evacuee property---Rehabilitation Department due to evacuee interest, resumed the property but on the payment, the mortgage was redeemed and in consequence thereto, the property was no more to be treated as evacuee property---Settlement and Rehabilitation Department having not challenged the order of Notified Officer conceded its non-evacuee character, whereas the petitioner sought its transfer as informer under Settlement Laws---High Court could not undertake exercise of holding factual inquiry to ascertain the character of property and change its status of non-evacuee by declaring it an evacuee property---Notified Officer, after holding a detailed inquiry, concluded that the property was not declared as an evacuee property at any stage---Petitioner failed to show that finding arrived at by Notified Officer regarding non-evacuee character of property, was suffering from any misreading or non-reading of evidence or the conclusion drawn by him was contrary to law and facts of the case---Supreme Court declined to interfere in the findings of Notified Officer, maintained by High Court---Leave to appeal was refused.

Ch. Qadir Bakhsh, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.

Amir Alam Khan, Advocate Supreme Court for Respondents Nos.4 and 5.

Rafiq Javed Butt, Advocate Supreme Court for Respondents Nos. 14 to 23.

Date of hearing; 16th February, 2005.

2006SCMR48

[Supreme Court of Pakistan)

Present: Sh. Riaz Ahmad, Munir A. Sheikh and Rana Bhagwandas, JJ

COLLECTOR OF SALES TAX, LAHORE---Petitioner

Versus

ITTEHAD CHEMICALS LIMITED and 2 others---Respondents

Civil Petition for Leave to Appeal No.304-L of 1999, decided on 13th April, 2000.

(On appeal from the judgment, dated 16-12-1998 by the Lahore High Court, Lahore passed in Writ Petition No.5958 of 1998).

Sales Tax Act (VII of 1990)---

----S. 8---Constitution of Pakistan (1973), Art. 185(3)---Input tax paid---Entitlement to reclaim or deduct input tax paid---Assessees challenged legality of notification according to which they were held not entitled to reclaim or deduct input tax on goods which were not direct constituent and integral part of taxable goods produced by assessees, manufactured or supplied---Reliance was placed on an earlier notification---High Court, while comparing both notifications in juxta-position, found that second notification was valid only to the extent of goods specified in first notification, as a consequence of such finding assessees became entitled to reclaim said deduction ---Assessees had directly approached High Court Without there being specific denial on part of department of the claim to deduct input tax etc.; in the first instance they had to approach forums provided under Sales Tax Act, 1990 for the purposes before invoking constitutional jurisdiction---Petition was converted into appeal and decided in terms of judgment passed in exactly similar other cases in which same notification was brought under challenge in civil petitions.

A. Karim Malik, Advocate Supreme Court and Muhammad Aslam Ch. Advocate-on-Record for Petitioner.

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Mehmudul Islam, Advocate-on-Record for Respondents.

Date of hearing:. 13th April, 2000.

2006 S C M R 50

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ

ABDUL MATEEN and others---Appellants

Versus

Mst. MUSTAKHIA--- Respondent

Civil Appeal No. 660 of 2000, decided on 11th February, 2005.

(On appeal from the judgment, dated 27-11-1998 passed by Peshawar High Court, Peshawar, in Civil Revision No. 375 of 1994).

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Arts.117 & 120---Constitution of Pakistan (1973), Art.185(3)---Declaration of title---Gift---Onus to prove---Concurrent findings of fact by the Courts below---Owner of suit-land died issueless and prior to his death he gifted his land to his wife---Plaintiffs being collaterals assailed the gift on the basis of non-compliance of necessary ingredients of a valid gift and claimed to be the owners to the extent of their shares---Suit and appeal were dismissed by Trial Court and Lower Appellate Court, respectively---Concurrent judgments of two Courts below were maintained by High Court in exercise of revisional jurisdiction---Plea raised by plaintiffs was that the gift was not valid, as the donor was suffering from depression and obsessional neurosis---Plaintiffs further contended that neither there was offer, nor acceptance of gift and possession of suit-land was also not handed over to the donee---Validity---Donor and donee being husband and wife were living together and management of agriculture land was under the control of donor as donee could not personally engage herself in the cultivation of land---In law, the donee would be deemed to be in possession of land under the gift---Plaintiffs having disputed validity of gift, were under heavy burden to prove that gift was not genuine or it was suffering from an~ other legal or factual defect or the concurrent findings of Courts below, on the question of existence of a valid gift, was the result of misreading or non-reading of evidence---Supreme Court declined to interfere in the concurrent judgments and decrees passed by the Courts below---Leave to appeal was refused.

Muhammad Yaquoob through Legal Heirs v. Feroze Khan 2003 SCMR 41 and Muhammad Bakhsh v. Ellahi Bukhsh 2003 SCMR 286 distinguished.

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

----S. 115---Revisional jurisdiction under S.115, C.P.C.---Scope---Concurrent findings of fact by the Courts below---Reappraisal of evidence in revisional jurisdiction---Principles---Concurrent finding on a question of fact or mixed question of law and fact, if found suffering from misreading or non-reading of evidence or based on no evidence or inadmissible evidence, High Court, in exercise of revisional jurisdiction could correct the error committed by subordinate Courts---In absence of any defect of misreading or non-reading of evidence in concurrent findings of two Courts below on such question, interference of High Court in civil revision amounted to improper exercise of revisional jurisdiction---Re-examination and reappraisal of evidence is not permissible in revisional jurisdiction even if conclusion drawn by subordinate Courts on a question of fact was erroneous---Revisional power of High Court is exercised for correcting an error committed by subordinate Courts in exercise of their jurisdiction and mere erroneous decision does not call for interference, unless it is established that the decision was based on no evidence or the evidence relied upon was inadmissible or the decision was perverse so as to cause grave injustice.

?

Abdul Samad Khan, Advocate Supreme Court for Appellants.

Mian Younis Shah, Senior Advocate Supreme Court for Respondents.

Dates of hearing: 10th and 11th February, 2005.

2006SCMR56

[Supreme Court of Pakistan]

Present: Javed Iqbal, Mian Shakirullah Jan and Tassadduq Hussain Jillani, JJ

ABDUL GHAFFAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Petition No. 82-P of 2005, decided on 20th September, 2005.

(On appeal from the judgment, dated 20-6-2005 passed by the Peshawar High Court, Peshawar in Criminal Appeal No.91 of 2005).

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

---Ss. 231 & 537---Penal Code (XLV of 1860), Ss.324 & 337-F(ii)---Constitution of Pakistan (1973), Art.185(3)---Contention was that the amendment of the charge by the Trial Court by adding S.337-F(ii), P.P.C. on the day of announcement of the judgment with no opportunity to the accused to recall or resummon and examine the witnesses as required under S.231, Cr.P.C. had vitiated the trial---Section 23 I, Cr.P.C. provided that whenever a charge was altered or added by the Court after commencement of the trial, the Prosecutor and the accused were to be allowed to recall or resummon and examine with reference to such alterations or additions, any witness who might have been examined---Wording of 5.231, Cr.P.C. indicated that first a request or an application be made to that effect as to allow or grant permission was generally preceded by a request or application----Since no such request or application had been made, therefore, it was not necessary for the Court to examine or recall or resummon the witnesses---Even otherwise, resummoning and recalling or examination of witnesses would be with reference to such alterations or additions---No substantial alteration was made by the Court in the charges as the earlier charge was for attempt at the life of the complainant by firing at him effectively and in the later amended charge, the same allegation had been made i.e., the attempt at the life of the complainant by firing at him effectively with additional of causing injury to him---Earlier charge by mentioning the firing effectively was reflective of the fact of causing injury to the complainant---First charge which was graver offence punishable with sentence more than the one provided for added offence under S.337-F(ii), P.P.C. had also covered the latter offence---Additionally, if the same was taken to be an irregularity, it was curable under S.537, Cr.P.C., moreso when the objection was not raised at the trial and even during the hearing of appeal, it would negate the occasion of any failure of justice in view of the Explanation to S.537, Cr.P.C.---Leave to appeal was refused in circumstances.

Konmal and another v. Emperor AIR 1930 All. 215; Musahru and others v. Emperor AIR 1940 Pat. 355 and Muhammad Bakhsh v. The State 1968 PCr.LJ 1901 ref.

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

----S. 231---Recall of witnesses when charge altered---Application and scope of S.231, Cr.P.C.---No doubt, Court under S.231, Cr.P.C. is bound to allow the prosecution and the accused to recall and examine any witness who may have been already examined, but then the party has to make an application for calling the witness and his examination---Party failing to do so cannot subsequently complain that the examination contemplated by S.231, Cr.P.C. was not allowed.

Konmal and another v. Emperor AIR 1930 All. 215; Musahru and others v. Emperor AIR 1940 Pat. 355 and Muhammad Bakhsh v. The State 1968 PCr.LJ 1901 ref.

Shakeel Ahmed, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 20th September, 2005.

2006 SCMR 60

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Mian Shakirullah Jan, JJ

AUDITOR-GENERAL OF PAKISTAN and others---Appellants

Versus

MUHAMMAD ALI and others---Respondents

Civil Appeals Nos. 199, 200 and 201 of 2002, decided on 6th October, 2005.

(On appeal from the judgment, dated 16-10-2000 passed by the Federal Service Tribunal, Islamabad in Appeals Nos.45/Q of 1999, 1/Q and 2/Q of 2000).

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

----Art. 212(3)---Leave to appeal was granted by Supreme Court to consider; whether on the ground of inefficiency and negligence, major penalty of compulsory retirement could have been converted and modified to that of reduction in time scale by three stages in exercise of appellate jurisdiction of Service Tribunal and that what type of inefficiency and negligence could attract imposition of major penalty.

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

----Ss. 4 & 5---Government Servants (Efficiency and Discipline) Rules, 1973, Rr.2 & 3---Compulsory retirement from service---Carelessness, an act of misconduct---Deterrent and reformative punishment---Import, object and scope---Converting major penalty into minor penalty---Senior officers who equally shared the responsibility of negligence in transaction of over payment, were awarded minor penalty of recovery of nominal amount of Rs.5,000 each, whereas civil servants being subordinate officials, on the basis of same set of facts, had been dealt with severely in the matter of punishment---Service Tribunal allowed the appeal filed by civil servants and penalty of compulsory retirement from service was converted into reduction in time scale by three stages for two years---Plea raised by authorities was that civil servants were negligent and inefficient and were responsible for causing loss to Government exchequer---Validity---Carelessness was an act of negligence which might not strictly fall within the ambit of misconduct as defined in R.2 of Government Servants (Efficiency and Discipline) Rules, 1973 but it was definitely a valid ground on the basis of which a Government servant could be awarded penalty as provided in R.3 of Government Servants(Efficiency and Discipline) Rules, 1973---Element of bad faith and wilfulness might bring an act of negligence within the purview of misconduct but lack of proper care and vigilance might not always be wilful to make the same a case of grave negligence inviting severe punishment---Philosophy of punishment was based on the concept of retribution, which might be either through the method of deterrence or reformation---Purpose of deterrent punishment was not only to maintain balance with the gravity of wrong done by a person but also to make an example for others as a preventive measure for reformation of society---Concept of minor penalty in law was to make an attempt to reform the individual wrong doer---In service matters, extreme penalty for mirror acts depriving a person from right of earning would defeat the reformatory concept of punishment in administration of justice---Supreme Court declined to take any exception to the view of the matter taken by Service Tribunal---Appeal was dismissed.

Raja Muhammad Irshad, D.A.-G. for Appellants.

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

Date of hearing: 6th October, 2005.

2006 S C M R 63

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

COLLECTOR OF CUSTOMS (EXPORTS)---Petitioner

Versus

Messrs ERUM INTERNATIONAL and others ---Respondents

Civil Petitions Nos.541-K to 543-K of 2004, decided on 20th October, 2005.

(On appeal from the order, dated 27-4-2004 passed by High Court of Sindh at Karachi in Special Central Excise Appeals Nos.295, 297 and 298 of 2002).

Customs Act (IV of 1969)---

----Ss. 156(1), cls.(9), (14); 16 & 32---Customs Appraisement Manual, Chap. 15, cl.(3)---Constitution of Pakistan (1973), Art. 185(3) ---Correctness of weight of the exportable consignment---Determination---Duty of Customs authorities---Customs authorities were required to check/examine 10% of the said consignment even if the representatives of the exporters had not raised any objection to the examination of only one carton/packet out of large number of cartons/packets containing the goods/consignment for export---Where the Customs authorities checked/ examined only one packet/carton out of large number of packets, they could not claim that the exporters were estopped or precluded from objecting to the legality or otherwise of the examination and challenge the report of the Appraising/Examining. Officer on the basis of such examination/appraisement---By checking/examining just one out of large number of packets/cartons of goods to be exported, officers of the Customs Department had acted illegally and in violation of the Customs Appraisement Manual and the Standing Orders issued by the Central Board of Revenue---Such act of the Customs authorities had rendered examination of the consignments as illegal, improper and of no binding effect---Order of the Customs authorities, on the basis of reports of such examination of the consignments holding the exporters guilty of offences under Ss. 16 & 32, Customs Act, 1969 and imposition of penalties under cls.(9) & (14) of S. 156(l) of the Act was also without lawful authority and of no legal consequence---Petition for leave to appeal was dismissed.

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

Nemo for Respondents (in all Petitions).

Date of hearing: 20th October, 2005.

2006SCMR66

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ

SUBA KHAN---Petitioner

Versus

MUHAMMAD AJMAL and 2 others---Respondents

Civil Petition No.398 of 2003, decided on 22nd February, 2005.

(On appeal from the judgment, dated 5-9-2003 passed by Peshawar High Court, Peshawar, in Criminal Miscellaneous No. 141 of 2003).

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

----Ss. 497(5) & 497(2)---Bail, cancellation of---Principles---If the Court, while granting bail, has not violated the principles laid down for grant of bail, its cancellation is not proper---Mere fact that there could be another opinion of the matter than the one formed by the Court on the basis of tentative assessment of the evidence, would not be a sufficient ground to cancel the bail, if in the light of the facts of the case it can be found to have qualified the test of calling further inquiry into the guilt or innocence of an accused in terms of subsection (2) of 5.497, Cr.P.C.

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

----S. 497(2)---Bail, grant of---Principles---Main consideration for grant of bail under subsection (2) of S.497, Cr.P.C. is that if the Court on the basis of tentative assessment of evidence forms an opinion that prima facie reasonable grounds existed to believe that accused has not committed an offence with which he was being charged, he would be allowed bail by virtue of subsection (2) of 5.497, Cr.P.C. as of right.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss,302/324/148/149---Constitution of Pakistan (1973), Art.185(3)---Cancellation of bail, refusal of---Occurrence had taken place at night in which a number of accused had participated---Statements of the injured witness as well as of the two women witnesses who were inmates of the house were not recorded on the same day---High Court in circumstances had rightly formed the opinion that the essential conditions for grant of bail under 5.497(2), Cr.P.C. were satisfied, and the same did not call for any interference by Supreme Court---Petition for cancellation of bail was consequently dismissed and the leave to appeal was refused accordingly.

Bashiran Bibi v. Nisar Ahmad Khan PLD 1990 SC 83; Asmat Ullah Khan v. Bazi Khan PLD 1988 SC 621 and Arbab Ali v. Khamiso and others 1985 SCMR 195 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/148/149---Bail---Assessment of evidence---Principles---Deep appraisal and detailed discussion of evidence at bail stage so as to prejudice the merits of the case of either party at the trial, is not permitted and the expression of the opinion on merits of the case is strongly deprecated by Supreme Court---Courts should be conscious not to cross the barrier of permissible limits while making tentative assessment of the evidence at bail stage.

Mushtaq Ali Tahirkhali, Advocate Supreme Court for Petitioner.

Dr. Babar Awan, Advocate Supreme Court for Respondents Nos.1 and 2.

Hafiz Aman, Advocate Supreme Court for the State.

Date of hearing: 22nd February, 2005.

2006 S C M R 71

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

MUHAMMAD HUSSAIN---Petitioner

Versus

MUKHTAR AHMAD---Respondent

Civil Petition No. 1414-L of 2005, decided on 19th October, 2005.

(On appeal from the order, dated 6-7-2005 passed by the Lahore High Court, Multan Bench, Multan in C.M.A. No.672/C of 2005).

Civil Procedure Code (V of 1908)---

---- S.12 (2) & O.XLVII R.1 (c)---Constitution of Pakistan (1973), Art. 185 (3)---Setting aside of judgment---Discovery of new facts---Plea of ignorance and incorrect information---Matter between the parties decided upto Supreme Court ---Petitioners being dissatisfied, again agitated the matter before High Court by filing application under S.12(2), C.P.C. on the ground that assertions made in their pleadings were based upon incorrect information and ignorance, which application was dismissed---Validity---Out of the pleadings, Trial Court framed issues and tried them---Verdict given by Trial Court was examined by High Court as well as by Supreme Court and the matter was finally concluded with the dismissal of review application by Supreme Court---Decree had attained finality, which could not be upset by urging that the petitioners were ignorant of some facts---No litigant could be permitted to plead his ignorance or lack of information to advance his case---Improper or incorrect assertion could not affect jurisdiction of Court---Jurisdiction on Courts was conferred by law and did not depend on the litigants /parties stating correct facts in pleadings---At best, as laid down in O.XLVII, R.1 (c) C.P.C., discovery of new and important matter or evidence, subject to the conditions laid down therein, might provide a ground for review of decree---If ground of petitioners was accepted, there would be no end to litigation and any party could launch a fresh round by pleading revelation of facts and his own ignorance and lack of diligence---Leave to appeal was refused.

A.K. Dogar, Advocate Supreme Court and Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Petitioner.

Nemo. for Respondent.

Date of hearing: 19th October, 2005.

2006 S C M R 73

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and M. Javed Buttar, JJ

JAVAID AKHTAR CHEEMA and another---Petitioners

Versus

DIRECTORATE OF FLORICULTURE (TRAINING AND RESEARCH), PUNJAB, LAHOER and another---Respondents

Civil Petitions Nos.3312/L and 3313/L of 2002, decided on 15th June, 2005.

(On appeal from the judgment of Punjab Service Tribunal, dated 27-6-2002 passed in Appeals Nos.920 and 921 of 2000, respectively).

Constitution of Pakistan (1973)---

----Art. 212(3)---Adjustment of employees in a new Directorate---When Directorate of Floriculture and Directorate of Horticulture Research Institute for Floriculture and Landscaping were merged and new Directorate of Floriculture (Training & Research), was established petitioners, who were employed as Agriculture Officers, in pursuance of policy of adjustment of employees in new Directorate, opted for their adjustment, but they were not considered for the reason that under the rules they did not possess requisite academic qualification---Appeals filed by petitioners before Service Tribunal having been dismissed, petitioners had filed petition for leave to appeal---Leave to appeal was granted to consider questions; that whether absorption/adjustment in a wing of department or in an independent department, could or could not be claimed as of right as terms and conditions of service and the Service Tribunal could competently adjudicate matters; that whether Service Tribunal, in exercise of its appellate jurisdiction in respect of terms and conditions of civil servants under S.4 Service Tribunal Act, 1973, could declare the rules in question ultra vires the law; that what was the prescribed qualification for the posts in new Directorate and whether petitioners possessed requisite qualifications for absorption/adjustment against posts in said Directorate and were entitled to be adjusted accordingly.

Abdul Hafeez Cheema, Advocate Supreme Court and Muhammad Ozair Chughtai, Advocate-on-Record for Petitioners.

Ms. Salma Malik, A.A.-G. Punjab and Rao M. Yousaf Khan, Advocate-on-Record for Respondents.

Date of hearing: 15th June, 2005.

2006 S C M R 76

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

ANWAR AHMAD---Petitioner

Versus

Mst. FAIZA HASSAN and others---Respondents

Civil Petition No.619-K of 2004, decided on 6th October, 2005.

(On appeal from the order, dated 4-6-2003 passed by High Court of Sindh, Karachi in C.P. No.548 of 2003).

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

----S. 15---Constitution of Pakistan (1973), Art.185 (3)---Ejectment of tenant---Default in payment of monthly rent and sub-letting of premises---Ejectment application was dismissed by Rent Controller having not found any default in monthly rent and sub-letting of premises---Appellate Court reversed the findings of Rent Controller and passed eviction order but High Court in constitutional jurisdiction restored the order passed by Rent Controller---Validity---Tenant was inducted in rented premises by landlord himself against written agreement---Landlord failed to prove his assertion that the tenant was inducted by original tenant by way of sub-letting---Alleged default was falsified in view of receipts issued by attorney of landlord and her statement before Rent Controller---Ejectment application was rightly dismissed by Rent Controller and High Court was justified in restoring the order of Rent Controller---Supreme Court declined to take any exception to the judgment of High Court---Leave to appeal was refused.

A.F.M. Mokarim, Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Petitioner.

Badar Alam, Advocate Supreme Court and Akhlaq Ahmad Siddiqui, Advocate-on-Record for Respondent No. 1.

Date of hearing: 6th October, 2005.

2006 SCMR 84

[Supreme Court of Pakistan]

Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ

FEDERAL PUBLIC SERVICE COMMISSION---Petitioner

Versus

Mrs. ZAKIA LATIF and others---Respondents

Civil Petition No. 1596 of 2003, decided on 25th July, 2005.

(On appeal from the judgment, dated 28-5-2003 passed by the Lahore High Court, Rawalpindi Bench in Writ Petition No.2088 of 1999).

Constitution of Pakistan (1973)---

----Art. 185 (3)---Regularization of ad hoc employees---Change of category---Ministry of Education prepared two categories of ad hoc employees for the purpose of their regularization---Civil servant was placed in category No.1 by Ministry, for her regularization---Federal Public Service Commission changed the category of civil servant and declined to recommend her for regularization---High Court in constitutional jurisdiction directed the authorities to treat the civil servant in the category in which she was placed by the Ministry---Validity---Authorities failed to justify changing of the category in which the civil servant was placed by the Ministry---Policy of regularization was made by Government and its concerned Ministry, a component of Government, was in better position to allocate proper category to its employees in the light of the policy---Supreme Court declined to take any exception to the order passed by High Court in its constitutional jurisdiction---Leave to appeal was refused.

Nasir Saeed Sheikh, D.A.-G. and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Naseer Ahmad, Advocate Supreme Court for Respondents.

Date of hearing: 25th July, 2005.

2006 SCMR 86

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Syed Deedar Hussain Shah, JJ

MEHRAN UNIVERSITY OF ENGINEERING AND TECHNOLOGY, JAMSHORO through Vice-Chancellor and another---Petitioners

Versus

Dr. MUHAMMAD MOAZAM BALOCH and another---Respondents

C.P.L.A. No.499-K of 2003, decided on 4th May, 2004.

(On appeal from the judgment of Sindh Service Tribunal at Karachi dated 22-5-2003 passed in Appeal No. 137 of 1999).

Civil Service---

----Dismissal from service on the ground of continuous absence from duty by employee---Employee, who was Assistant Professor in the University, after seeking leave for higher education abroad, returned back and for personal reasons was unable to continue his duties, therefore, he submitted his resignation for acceptance by the University---University, instead of accepting or rejecting the resignation, proceeded to issue show-cause notice to the employee for his long absence and passed an order of dismissal from service---Dismissal order, though reflected in the pleadings, but had not been placed on record---Employee submitted departmental appeal terming same as review petition against dismissal order, which was rejected by the University on the sole ground that the same was not maintainable and employee should have preferred an appeal to the Chancellor of the University---Validity---Held, it was incumbent on the Vice-Chancellor of the University to treat petition of the employee as departmental appeal and to forward the same to the Chancellor rather than to place it before the Syndicate or to sit in judgment over his own action by chairing the meeting of the Syndicate---University was rightly directed by the Service Tribunal to forward the said petition of the employee to the Chancellor/Governor within a fortnight for passing appropriate order on the same---Petition for leave to appeal to Supreme Court was dismissed---Constitution of Pakistan (1973), Art.212(3).

Abdul Rahim Kazi, Advocate Supreme Court and Akhlaq Ahmad Siddiqui, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 4th May, 2004.

2006 SCMR 89

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and M. Javed Buttar, JJ

MUHAMMAD ARSHAD---Petitioner

Versus

THE STATE---Respondent

Jail Petition No. 157 of 2002, decided on 18th July, 2005.

(On appeal from the judgment of Lahore High Court, Lahore, dated 30-4-2002 passed in Criminal Appeal No. 804 of 2001 and Murder Reference No.2-T of 2001).

Penal Code (XLV of 1860)---

----Ss. 302(b) & 449---Anti-Terrorism Act (XXVII of 1997), S.7---Constitution of Pakistan (1973), Art.185(3)---Ocular account had been furnished by the inmates of the house who were the most natural witnesses and their testimony being free from malice was true and confidence-inspiring which was also corroborated by medical evidence and the admission of the accused---Accused having taken the special plea of grave and sudden provocation and the family honour, had committed murders of four members of his family, but such plea was neither supported by the evidence on record, nor the accused had established the same by producing any evidence---Record did not suggest happening of any unpleasant incident before the occurrence prompting the accused to commit the said murders---Defence version, even if was based on truth, the hatred in the mind of accused against his sister and other family members would be the motive for the occurrence and not a source of sudden and grave provocation---Accused while acting in extreme brutal manner had not only murdered his sister for the reason of her being of bad character, but also killed his real mother and two brothers on the false claim of "Ghairat" and family honour---Provocation was neither sudden nor grave, rather the accused having developed grudge in his mind against his family members due to the conduct of his sister had committed "Qatal-e-Amd" of four persons without any justification and he deserved no leniency in the matter of sentence---Leave to appeal was refused to accused in circumstances.

Ch. Muhammad Akram, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 18th July, 2005.

2006 SCMR 93

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and Javed Iqbal, J

FAIZ MUHAMMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.36-Q of 2005, decided on 31st October, 2005.

(On appeal from the judgment of the High Court Balochistan, Quetta, dated 24-8-2005 passed in Criminal Bail No. 126 of 2005).

Criminal Procedure Code (V of 1898)---

----S. 498---Explosive Substances Act (VI of 1908), Ss.3, 4 & 5---Anti-Terrorism Act (XXVII of 1997), S.7(m)---Constitution of Pakistan (1973), Art.185(3)---Bail, cancellation, of---Prima facie involvement of accused was depicted---Bail had been cancelled by the High Court and High Court had not exercised its discretion in an arbitrary manner---Held, where prima facie case was made out the Supreme Court would not interfere with the orders of High Court canceling the bail.

Karam Elahi v. State 1977 SCMR 499(2) and Muhammad Ashraf v. State 1979 SCMR 399 fol.

Kamran Murtaza, Advocate Supreme Court for Petitioner.

Ameenuddin Bazai, Additional Advocate-General for the State.

Date of hearing: 31st October, 2005.

2006 SCMR 95

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza, Muhammad Nawaz Abbasi and Falak Sher, JJ

MUHAMMAD IBRAHIM---Appellant

Versus

PAKISTAN OIL SEED DEVELOPMENT BOARD and others---Respondents

Civil Appeal No. 85 of 2000, decided on 9th March, 2005.

(On appeal from the judgment, dated 10-6-1999 of the Federal Service Tribunal Islamabad passed in Appeals Nos.871 and 873-R of 1999).

Service Tribunals Act (LXX of 1973)---

----Ss. 2-A, 4 & 6---Limitation Act (IX of 1908), S.5 --- Termination of service---Abatement of proceedings---Condonation of delay---Petitioner being contract employee his service was terminated, which was challenged by him before High Court in constitutional jurisdiction---During pendency of petition before High Court, S.2-A was inserted in Service Tribunals Act, 1973---Petitioner, instead of invoking. right of appeal immediately before Service Tribunal, filed such appeal after dismissal of his petition by High Court---Service Tribunal did not condone the delay and dismissed the appeal of petitioner being time barred---Validity---High Court having no jurisdiction in such matters, on insertion of S.2-A in Service Tribunals Act, 1973, did not dispose of such cases soon after the change in law, so that the aggrieved persons could approach Service Tribunal within the statutory period provided under the law---Inaction on the part of High Court for a considerable period created confusion in the matter---On the insertion of S.2-A in Service Tribunals Act, 1973, the position in respect of abatement of service matters pending before other forums and retrospective operation of S.2-A of Service Tribunals Act, 1973, was not clear and doubt was ultimately removed by Supreme Court, therefore, question of limitation was required to be considered in each case on the basis of its own facts---Petitioner, due to misunderstanding, did not approach Service Tribunal prior to disposal of constitutional petition by High Court which would be a sufficient circumstance to bring the case within the ambit of S.5 of Limitation Act, 1908---Non-disposal of constitutional petition by an express order on its abatement by High Court within the period provided under law for filing appeal before Service Tribunal, would be an additional circumstance for condonation of delay---Petitioner was not negligent in pursuing his remedy as he filed appeal before Service Tribunal immediately on disposal of his constitutional petition by High Court---Dismissal of appeal by Service Tribunal as barred by time was not proper in circumstances---Judgment passed by Service Tribunal was set aside and the case was remanded to Service Tribunal for decision of appeal on merits---Appeal was allowed.

Lt. Col. (Rtd.) Muhammad Siddique v. Allama Iqbal Open University, Islamabad Civil Petitions Nos.483 and 685 of 1989; Muhammad Afzal v. Karachi Electric Supply Corporation and 2 others 1999 SCMR 92; Muhammad Yaqub v. Pakistan Petroleum Ltd. and another Civil Appeal No.998 of 1999; Ghulam Sarwar Bhutto v. Chief Secretary to Government of Sindh and others 2000 SCMR 104; Malik Mumtaz Ahmad and others v. Federal Service Tribunal and others 2000 + SCMR 832; Pakistan National Council of Arts v. Azimul Waqar and 2 others 2001 SCMR 1561; Aftab Ahmad v. K.E.S.C. 1999 SCMR 197 and Rehmatullah v. Postmaster-General 2003 SCMR 705 rel.

Appellant in person.

Nasir Saeed Sheikh, D.A.-G. and Raja Abdul Ghafoor, Advocate-on-Record for Respondents.

Date of hearing: 9th March, 2005.

2006 S C M R 100

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

ABID HUSSAIN---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, ALIPUR, DISTRICT MUZAFFARGARH and another---Respondents

Civil Petition No.3444-L of 2004, decided on 18th October, 2005.

(On appeal from the judgment, dated 1-11-2004 passed by the Lahore High Court, Multan Bench, in Writ Petition No.5915 of 2004).

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 14---Right of appeal, exercise of---Principles---Dissolution of marriage---Object behind non-provision of appeal in case of dissolution of marriage was to protect women, an under privileged and generally oppressed section of the society, from prolonged and costly litigation, as such it aimed to put a clog on the right of husband---Improper to construe S.14 (2)(a) of West Pakistan Family Courts Act, 1964, in a way so as to deprive a wife from appealing from the decree refusing her relief on the grounds which according to Family Court had not been proved but granting decree of dissolution on some other ground---Such interpretation would be in violation of wholesome provision of appeal contained in S.14 (1) of West Pakistan Family Courts Act, 1964, and to defeat the very object of introducing the Family Courts Act, 1964.

(b) Interpretation of statutes---

----Proviso to a provision of law---Construction---Scope---Provision of proviso is to be restrictively construed.

(c) West Pakistan Family Courts Act (XXXV of 1964)---

---Ss. 5 & 14---Constitution of Pakistan (1973), Art.185(3)--Dissolution of marriage---Grounds other than Khula---Wife filed suit for dissolution of marriage on the ground of Khula and other grounds of habitual cruelty and non-payment of maintenance---Family Court decreed the suit on the basis of Khula and directed the wife to return the house which was given to her as dower at the time of her marriage---Appellate Court allowed appeal of wife and converted dissolution of marriage on the basis of cruelty, whereby she was not obliged to return the house---Constitutional petition filed by husband before the High Court, against the judgment and decree passed by Appellate Court, was dismissed---Plea raised by husband was that the appeal filed by wife before Appellate Court was not competent as marriage was dissolved on the ground of Khula---Validity---As Family Court dismissed the suit of wife or did not decree the suit on the grounds of cruelty and non-maintenance, such wife could file appeal under S.14 (1) of West Pakistan Family Courts Act, 1964---Appeal under 5.14(1) of West Pakistan Family Courts Act, 1964, could be filed not only from the decree passed by Family Court but also from the `decision given'---Appeal of wife was maintainable against the decision given by Family Court that wife was not entitled to dissolution of marriage on the grounds of cruelty and / or non-maintenance---Both the Appellate Court as well as High Court had rightly evaluated the evidence to conclude that wife was entitled to dissolution of marriage on the ground of cruelty, which ground had been established---Supreme Court declined to interfere in the judgment and decree passed by the Courts below---Leave to appeal was refused.

Syed Shamim Abbas Bokhari, Advocate Supreme Court and Haji Muhammad Rafi Siddique, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 18th October, 2005.

2006 S C M R 104

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Muhammad Nawaz Abbasi, JJ

MUHAMMAD IDRIS KHAN---Petitioner

Versus

SECRETARY/CHAIRMAN, MINISTRY OF RAILWAYS, ISLAMABAD and 5 others---Respondents

Civil Petition No.2078 of 2004 and C.A. No. 1016 of 2005, decided on 20th May, 2005.

(On appeal from the judgment of Federal Service Tribunal dated 3-8-2004 passed in Appeal No.259(K)CS of 2001).

(a) Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----S. 3---Civil Servants Acts (LXXI of 1973), S.2 (b)---Government Servants (Efficiency and Discipline) Rules, 1973, R.2 (4)---Dismissal from service---Act of misconduct---Departmental inquiry, dispensing with---Principles---Civil servant was dismissed from service,. without holding regular inquiry, on the allegation of writing letter to Minister containing allegations of corruption and embezzlement of Government funds by the officers named therein---Appeal of civil servant against dismissal order was dismissed by Service Tribunal---Plea raised by civil servant was that writing of letter to Minister was not an act of misconduct---Validity---Letter sent by civil servant was not proper and notwithstanding the correctness of allegations contained therein, it was an act of indiscipline which could not be approved and tolerated---Civil servant was not dealt with fairly as he was awarded major penalty of dismissal from service without proper inquiry---Except in special circumstances, a civil servant must not be awarded major penalty of dismissal from service without proper inquiry and providing him fair opportunity to explain his position---No extraordinary circumstance existed calling for dispensation of inquiry---Summary proceedings, and imposition of major penalty of dismissal from service without inquiry would suggest element of bias and unfair treatment in the matter of quantum of sentence---Supreme Court converted petition for leave to appeal into appeal and converted penalty of dismissal from service into minor penalty of censure and directed the authorities to reinstate civil servant in service with all back-benefits.

(b) Civil service---

----Misconduct---Penalties, award of---Object and scope---Penalties in service law are to give choice to departmental authorities to determine quantum of punishment in the light of nature of misconduct---Concerned authorities may, in their discretion, award major or minor penalties but such power must not be exercised in an unjust and arbitrary manner.

?

(c) Civil service---

----Departmental proceedings---Procedure---Departmental authorities may not be obliged to strictly follow the procedure of law in the manner as is observed by judicial forums but still they must observe general principles of law and act independently to ensure fair treatment.

Dr. Babar Awan, Advocate Supreme Court for Petitioner.

M. Ishaq Khan, Advocate Supreme Court for Respondents.

Date of hearing: 20th May, 2005.

2006 S C M R 109

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

COMMISSIONER OF INCOME TAX, ZONE-C, LAHORE and others---Petitioners

Versus

Messrs KASHMIR EDIBILE OILS LTD. and others---Respondents

Civil Petitions Nos. 1032, 1033, 1034, 1035, 1048, 1049, 1050, 1093, 1094, 1095, 1113, 1114, 1115, 1116, 1117 and 1118-L of 2005, decided on 17th October, 2005.

(On appeal from judgment, dated 7-4-2005, passed by the Lahore High Court, Lahore in Writ Petitions Nos.7788, 7961, 8154, 8314 of 2003, 8165 of 2003, 8166 of 2003, 8167 of 2003, 8184 of 2003, 8332 of 2003, 8333 of 2003, 7841 of 2003, 7843, 8258 of 2003, 2802 of 2004, 4168 of 2004 and 4174 of 2004).

Income Tax Ordinance (XLIX of 2001)---

---Ss. 240, 114, 121, 122, 137, 141, 161, 221 & 239---S.R.O. No.633(I)/2002, dated 14-9-2002---Constitution of Pakistan (1973), Art. 185(3)---Removal of difficulties ---S.R.O. No.633(I)/2002, dated 14-9-2002 issued by the Federal Government, in purported exercise of powers conferred by S.240, Income Tax Ordinance, 2001 whereby .certain amendments were made in Ss. 114, 121, 122, 137, 141, 161, 221 & 239 of the Income Tax Ordinance, 2001 was in excess of powers of delegated legislation to the Federal Government as contemplated by S.240 of the Ordinance and said notification was without lawful authority and of no legal effect---Principles.

The power of the Federal Government to make an order under section 240 of the Income Tax Ordinance, 2001 was exercisable if a difficulty had arisen or was likely to arise in giving effect to any of the provisions of the Ordinance. However, such an order was required to be in conformity with the provisions of the Ordinance and also necessary for the purpose of removing the difficulty. The Federal Government was not empowered to bring about drastic changes in the Ordinance to achieve the purpose of removing the difficulty which might or might have not arisen. By notification dated 14-9-2002, the Federal Government, instead of removing any difficulty, made substantial amendments in sections 114, 121, 122, 137, 147, 161 and 239 of the Ordinance. The essential legislative functions were not conferred by section 240 of the Ordinance on the Federal Government. Rather there was a specific prohibition against making an order which was repugnant to provisions of the Ordinance. The law making power was not intended by the legislature to be given to the Government. Only the incidental or ancillary powers were delegated for the purpose of removing a difficulty. The provisions of the Ordinance were amended by the Government in such a manner that it was not possible to reconcile them with the original enactment. If an amendment of a statute made by the Government, in exercise of delegated power, was of fundamental character, then the distinction between an amendment and repeal of a statutory provision was some time obliterated.

Power to remove the difficulties could only be exercised by exertion of legislative power and not by an executive act.

If the power of the Federal Government to bring about changes in the Ordinance is conceded, then it may be exercised for the repeal and re-enactment of the whole of the Ordinance. Merely because the Federal Government is vested with the power to remove the difficulties in giving effect to any of the provisions of the Ordinance same does not empower the Government to go ahead with making amendments or repealing the provisions of the Ordinance. Section 240 of the Ordinance had placed an embargo that the order passed by the Federal Government for removal of difficulties would not be inconsistent with the provisions of the Ordinance. The word "inconsistent" used in section 240 of the Ordinance is of broad significance. It implies contradiction, qualities which cannot co-exist, not merely the lack of uniformity in details. When judicially defined it means contradictory, disharmonious, logically incompatible; contrary the one to the other, so that both cannot stand; mutually repugnant or contradictory. Things are said to be inconsistent or repugnant when they are contrary to one and the other, so that one infers the negation, destruction or falsity of the other or the acceptance or establishment of the one implies the abrogation or abandonment of the other, as it is spoken of `inconsistent defences' or "the repeal by a statute of all laws inconsistent therewith". The delegated power of the Federal Government was required to be canalized within the banks to keep it from overflowing. No difficulty or genuine doubt as to the interpretation or operation of the Ordinance had arisen or was likely to arise for the removal of which it had become necessary for the Federal Government to issue the notification in question. The notification dated 14-9-2002 cannot co-exist with the original provisions of the Ordinance which were sought to be amended. The Federal Government exceeded its powers of delegated legislation as contemplated by section 240 of the Ordinance. The High Court was quite justified in declaring the Notification S.R.O. No.633(I)/2002, dated 14-9-2002 to be without lawful authority and of no legal effect. Since the question of validity and effect of amendment in section 122 of the Ordinance by the Finance Act No. 1 of 2003 is not directly involved, therefore, Supreme Court declined to examine the same in the present proceedings.

Saeed Ahmed v. The State PLD 1964 SC 266; Fazlul Quader Chowdhry and others v. Muhammad Abdul Haque PLD 1963 SC 486; Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457; Sobho Gyanchandani v. Crown PLD 1952 'FC 29; Major Matloob Ali Khan v. Additional District Judge, East Karachi and another 1988 SCMR 747; Jalan Trading Co. Private Ltd. v. Mill Mazdoor Sabha AIR 1967 SC 691 and AIR 1951 SC 332 ref.

M. Ilyas Khan, Senior Advocate Supreme Court, Sh. Masood Akhtar, Advocate-on-Record, Ch. Muhammad Aslam Chatta, Advocate? on-Record for Petitioners.

Andrabi Naveed Advocate Supreme Court for Respondents (in C.P. No. 1032-L of 2005).

Siraj Khalid, Advocate Supreme Court for Respondents (in C.P. 1113-L of 2005).

Faizur Rehman, Advocate-on-Record for Respondents (in C.P. No. 1114-L of 2005).

Date of hearing: 17th October, 2005.

2006 SCMR 117

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

Mst. SHIRIN BAI---Petitioner

Versus

FAMOUS ART PRINTERS (PVT.) LTD. And others---Respondents

C.P.L.A. No.933-K of 2003, decided on 6th October, 2005.

(On appeal from order of High Court of Sindh, Karachi, dated 23-10-2003 passed in C. P. No.S-1124 of 2002).

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

----Ss. 15 & 21---West Pakistan General Clauses Act (VI of 1956), S.2(28)---Bona fide personal need of landlord---Principles---"Good faith"---Concept.

Section 15(2)(vii) of the Sindh Rented Premises Ordinance, 1979 providing for ejectment of a tenant, inter alia, lays down that the Rent Controller shall make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that landlord requires the premises in good faith for his own occupation or use or for the occupation or use of his spouse or any of his children.

"Good faith" means an honest act. Honesty is a state of mind and is capable of proof or disproof only by evidence of conduct. If requirement of landlord is found to be genuine, Rent Controller is bound to order eviction of tenant notwithstanding the fact that he had also made a demand for enhancement of rent or any other demand from the tenant. The expression "good faith" is abstract term not capable of any rigid definition. The ordinary dictionary meaning of the expression "good faith" is honesty of intention and, therefore, what is required under clause (vii) of subsection (2) of section 15 of the Ordinance is that the landlord should have a genuine need of the premises, which should certainly be more than a mere wish or desire. The expression "good faith" has been used in the Ordinance purposely meaning an act performed honestly without fraud, collusion or participation in wrong doing. The words "desire" or `need" have not been used, which would negate the two extreme views which are pleaded in cases of this nature. The expression "good faith" employed in clause (vii) must be interpreted in the light of definition thereof as embodied in section 2(28) of the West Pakistan General Clauses Act, 1956, which provides that "a thing shall be, deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not". Strictly speaking it means honesty and when a person is in occupation of another premises, generally speaking he cannot be said to be acting honestly when he asks for another premises unless the premises in his occupation is not sufficient for his need. Mere whim or fancy, wish or convenience of the landlord should not be adequate to demonstrate that the landlord requires the premises in "good faith". He must plead and prove his requirement by sufficient and satisfactory evidence inspiring confidence. It is a state of mind, which may be inferred from circumstances attending to each case and Courts ordinarily accept requirement of landlord without imputing bail faith unless strong circumstances indicate to the contrary. Right of landlord to claim possession from a tenant is regulated by Rent Controller only to the extent to examine whether the request of landlord for possession is inspired with "good faith", or is frivolous or mala fide. Sufficiency or insufficiency of accommodation available with a landlord is a matter of individual taste and discretion with which neither Controller nor the Appellate Authority would ordinarily interfere. All that Controller has to see or the Appellate Authority has to examine is whether the landlord requires the premises in "good faith" for his own occupation or use or for occupation or use of his spouse or any of his children. Expression "require the premises in good faith" cannot be confined to precise, identical and invariable definition nor any hard and fast rule can be propounded as to encompass all possible eventualities which could arise due to particular facts and circumstances of a case. Bona fide requirement cannot be turned down simply on assumption of tenant that proposed business could not be carried out profitably in the tenanted premises. Even otherwise, it is a fundamental right of landlord to shift his business or to change its nature so long it remains lawful and not against the public interest. "Good faith" means bona fide, which would show reasonableness of requirement of landlord whereas mala fide would mean that case has been brought with some ulterior or collateral purpose. Where a landlord wants to carry on his business in his own premises, instead of rented accommodation, to deprive him of the use and enjoyment of his property would be against all canons of justice unless he is expressly prevented by law from carrying on such business or there are circumstances to reflect that his need is not bona fide. Once a landlord has elected to live in his own house or start a business in the premises earlier let out on rent, his demand for eviction of the tenant would be presumed to be bona fide and founded on "good faith" unless mala fide is alleged and proved by the tenant. Suitability of requirement of landlord to commence a lawful business in the premises in dispute can by no stretch of imagination be said to be mere desire rather than bona fide need. In law a landlord is required to discharge his onus and to satisfy the conscience of the Controller that his requirement is based on "good faith" and is bona fide. Once a landlord is able to satisfy the Controller about the truth and genuineness of his requirement, the latter is left with no discretion but to order ejectment of a tenant irrespective of the fact that it would result in uprooting its long standing trade or business. Where the statement on oath was quite consistent with the averments of the landlord in the ejectment application and the same had neither been shaken nor anything had been brought in evidence to contradict the statement, such. statement on oath would be considered sufficient for acceptance of the ejectment application. ;Good faith" of landlord being a question of fact, finding on the issue could not be taken. exception to unless it was shown that finding suffered from violation of some fundamental legal principle in the matter of appreciation of evidence or omission of evidence or misreading of evidence. Likewise suitability of opening a store by landlord, in any one of the available premises, entirely depends upon the choice of the landlord. Such need and choice, however, should be real, genuine and not tainted with mala fide. There appears to be no legal impediment in the way of landlord if he wanted to start business in the demised premises in spite of the fact that he is a rich roan and has no children. The landlord can do whatever he liked with his property and if the interest of the tenant was involved because property of landlord was rented out to him, then his rights are protected under the law. If landlord did not contravene the provision of rent law, which allows him the relief, it would not be open to the tenant and even for that matter to the Court to make a comment as to what landlord should do or should not do. A landlord of the demised premises cannot be deprived of his right and interest to use his property in a manner more suited to his requirement. No unreasonable restriction can be placed on the exercise of such right, which would offend the fundamental rights guaranteed under Article 23 of the Constitution.

?

The tenants cannot be permitted to say that their long standing established business would be uprooted on account of their ejectment but the fact remains that for rehabilitating a landlord, the tenant must make a room for the owner and find out an alternate accommodation. `In present case the tenants had enjoyed tenancy rights for almost fifty years, they could not claim a life long tenancy rights in demised property.

?

By shifting her business to the demised premises the landlady would be making a saving of about Rs. 16,000 per month, which is a circumstance requiring serious consideration.

?

The view formed by the Rent Controller in the present case, and endorsed by the Appellate Authority, on the face of record, appears to be hyper-technical, too narrow and not in consonance with the spirit and object of law. Even if the argument of the tenant to the effect that presently sons of the petitioner are running their business smoothly and in a profitable manner is considered, it would not deprive them of their intention to shift the same to the premises owned by them and start the same business in a locality of their own choice. It is not for the Controller or the Appellate Authority or the tenant to determine the suitability and fitness of the location of the business which the petitioner's sons intend to establish as they cannot be deprived of their right to deal with their property in a manner suited to their circumstances. It is not at all necessary for them to demonstrate compelling circumstances for shifting of their existing business as agitated on behalf of the respondents. At any event, it is not shown that their demand is motivated by any ulterior factor or suffers from lack of bona fides. Whether it is a reasonable and fair demand or not, should be judged from the view point of the landlord rather than the tenant, who had already enjoyed the fruits of the property for almost five decades.

View taken by the forums below as well as the High Court was not in accordance with the law declared by Supreme Court from time to time. In case the impugned judgments were allowed to remain in the field, it would unsettle the well-settled legal 'position. Consequently, Supreme Court converted the petition into appeal and, on acceptance, set aside the impugned judgments of the forums below as well as that of the High Court, which did not conform to the requirements of the settled principles of law for allowing ejectment on the ground of personal requirement of landlord. Period of two years was granted to the tenants for vacating the premises in order to enable the tenants to find out an alternate accommodation with a view to continue their business, subject to payment of usual rent and other charges as before.

Imran Ahmad v. Noor Ahmad 1992 SCMR 1152; F.K. Irani & Co. v. Begum Feroze 1996 SCMR 1178; Iqbal Book Depot v. Khatib Ahmed 2001 SCMR 1197; C.P. No.208/Q of 2003, decided on 12-7-2005; Muhammad Bashir v. Sakhawat Hussain 1991 SCMR 846; Jehangir Rustam Kakalia v. Haswani Sales and Services (Pvt.) Limited 2002 SCMR 241; Taj Muhammad Abasi v. Feroze Sons (Pvt.) Limited, Rawalpindi 1996 SCMR 97; Abdul Jabbar v. Sharafat Khan 1997 MLD 2813; Muhammad Aziz v. Mst. Asmat Begum PLD 2000 Kar. 41 and Muhammad Naseem Khan v. United Bank Limited PLD 2002 SC 753 ref.

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

Mushtaq Ahmed Memon, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent No. 1.

Nemo for Respondents Nos.2 and 3.

Date of hearing: 6th October, 2005.

2006 S C M R 129

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

DIRECTOR, DIRECTORATE-GENERAL OF INTELLIGENCE AND INVESTIGATION and others---Petitioners

Versus

Messrs AL-FAIZ INDUSTRIES (PVT.) LIMITED and others---Respondents

Civil Petitions Nos.287-K, 288, 291, 292, 872, 873-K of 2004, 307, 308, 314, 326, 330 to 333, 339, 343 to 346, 357 to 363-K, 461, 462, 503 and 530-K of 2005, decided on 17th October, 2005.

(On appeals from the judgments/orders passed by High Court of Sindh at Karachi, dated 11-12-2003 in Special Customs Appeals Nos.282 and 283 of 2002, dated 18-12-2003 in Special Customs Appeals Nos. 141, 140, of 2002, dated 30-9-2004 in Special Customs Appeal No.222 of 2003, dated 15-10-2004, in Special Customs Appeal No.229 of 2003, dated 10-2-2005 in Special Customs Appeal No.197 of 2003, dated 10-2-2005 in Special Customs Appeal No.548 of 2004, dated 8-2-2005 in Special Customs Appeal No.208 of 2003, dated 23-2-2005 in Special Customs Appeal No.316 of 2004, dated 17-2-2005 in Special Customs Appeals Nos.530, 531, 532 and 533 of 2004, dated 10-2-2003 in Special Customs Appeal No.18 of 2005, dated 23-2-2005 in Special Customs Appeals Nos.50 and 51 of 2004, dated 23-2-2005 in Special Central Excise Appeals Nos.5 and 6 of 2005, dated 16-3-2005 in Special Customs Appeal No.108 of 2003, dated 15-3-2005 in Special Customs Appeal No.109 of 2003, dated 16-3-2005 in Special Customs Appeal No.110 of 2003 dated 18-3-2005 in Special Customs Appeal No.223 or 2003, dated 18-3-2005 in Special Customs Appeal No.225 of 2003, dated 2-3-2005 in Special Customs Appeal No.226 of 2003, dated 18-3-2005 in Special Customs Appeal No.245 of 2004, dated 15-2-2005 in Special Customs Appeal No.556 of 2004, dated 23-2-2005 in Special Customs Appeal No.3 of 2005, dated 12-4-2005 in Special Customs Appeal No.42 of 2005 and dated 27-4-2005 in Customs Appeal No.618 of 2002).

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

----S. 196---Constitution of Pakistan (1973), Art. 185(3)---Appeal to High Court---Requirement---When S.196, Customs Act, 1969 requires filing of an appeal by the Collector then it can be filed only by the Collector and none else---Appeal filed by Director of Customs would be deemed to be illegal, incompetent and not maintainable---Even the appeal purported to have been filed by the Collector as the nomenclature of the appellant appeared as Collector of Customs but not signed and verified by him and instead was signed or verified either by a Deputy Collector or Assistant Collector of Customs same would also be deemed not to have been filed in accordance with law---Principles---Supreme Court . expressed its extreme dissatisfaction, discontentment and displeasure on the manner in which the officers of the Customs, Department, Law Officers/Standing Counsel engaged by the Department and the Advocate-on-Record involved in filing/institution of petitions had conducted themselves---Such conduct of persons involved resulted ,in colossal loss to the Government---Copy of the present judgment was directed to be sent to the Chairman, Central Board of Revenue and the Attorney-General for Pakistan, to apprise them of the apathy, careless, casual and ignorant behaviour of the officers of the Customs and the Law Officers/Counsel dealing with the Customs Department.

In the matter of Reference by the President of Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan PLD 1957 SC (Pak.) 219; Messrs V.N. Lakhani and Company v. m.v. Lakatoi Express and 2 others PLD 1994 SC 894; E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536; Atta Muhammad Qureshi v. Settlement Commissioner PLD 1971 SC 61; Liverpool Borrough Bank v. Turner (1848) 13 QB 30; The Punjab Province v. Malik Khizar Hayat Khan Tiwana PLD 1958 FC 200; Khalid Saeed v. Shamim Rizvan and others 2003 SCMR 1505; State through Advocate-General, Sindh v. Hanif Ahmed and others 1994 SCMR 749; Kadir Bux and others v. The Crown PLD 1955 FC 79; Haji Abdullah Jan and others v. The State 2003 SCMR 1063 and Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 ref.

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

----Ss. 196 & 194-B---Appeal to High Court---Limitation---Filing of appeal after lapse of 30 days from the date on which the order under S.194-B, Customs Act, 1969 was served on the Collector, the appeals would be barred by time---Appeal would be deemed to have been properly filed when the memos. of appeal were signed and verified by the Collector---Principles.

Akhtar Hussain, Advocate Supreme Court and A. Aziz Khan, Advocate-on-Record for Petitioners (in C.Ps. Nos.287, 288, 291 and 292-K of 2004).

K.A. Wahab, Advocate-on-Record for Petitioners (in C.Ps. Nos.872, 873, 326-K of 2004, 330 to 333, 357 to 363, 461, 462, 503 and 530 of 2005).

A.S.K. Ghouri, Advocate-on-Record for Petitioners (in C.Ps. Nos-307, 308, 314, 319, 343 to 346-K of 2005).

M.S. Ghouri, Advocate-on,-Record for Respondents (in C.Ps. Nos.343 and 344-K of 2005).

Nemo, for other Respondents.

Date of hearing: 17th October, 2005.

2006 S C M R 140

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

Messrs LALAZAR ENTERPRISES (PVT.) LIMITED, KARACHI---Petitioner

Versus

Messrs OCEANIC INTERNATIONAL (PVT.) LIMITED, KARACHI and others---Respondents

C.P.L.A. No.264-K of 2005, decided on 20th October, 2005.

(On appeal from the judgment of Sindh High Court at Karachi, dated 17-2-2005 passed in Constitution Petition No.S-61.9 of 2004).

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

----Ss. 3(2) & 2(h)---Government of Sindh Notification No.VIII(3)SOJ/75, dated 15-3-1981---Interpretation of S.3(2), Sindh Rented Premises Ordinance, 1979 and the scope of expression "premises" as defined in S.2(h) of the Ordinance---Object of law behind the enactment of S.3 of the Ordinance and the notification issued thereunder was to exclude properties owned by or belonging to the Federal Government or the Provincial Government from the operation of the provisions of Sindh Rented Premises Ordinance, 1979---In present case a building had been constructed by a third party and it had been let out to a private person and was neither requisitioned by the Federal Government nor by the Provincial Government---Exemption from operation in favour of such premises, would not arise under any circumstance---Principles.

B.S. Khan v. Pakistan State Oil Company Ltd. 1989 SCMR 75 and Director of Schools v. Zaheeruddin 1996 SCMR 1767 distinguished.

Azmatullah Ltd. v. S.N.K. Trading Company Ltd. 1989 CLC 877 and Khaliq Raza Khan v. Pakistan State Oil Ltd. 1998 SCMR 2092 ref.

A. Aziz Khan, Advocate-on-Record/Advocate Supreme Court and Abdul Qadir, Advocate Supreme Court for Petitioner.

Farogh Nasim, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent No.1.

Nemo. for Respondents Nos.2 and 3.

Date of hearing: 20th October, 2005.

2006 S C M R 145

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

GHULAM MUSTAFA BUGHIO---Petitioner

Versus

ADDITIONAL CONTROLLER OF RENTS, CLIFTON and others ---Respondents

C.P.L.A. No.620-K of 2005, decided on 12th October, 2005.

(On appeal from judgment of High Court of Sindh at Karachi, dated 22-8-2005 passed in R.F.A. No.2 of 2005).

(a) Cantonments Rent Restrictions Act (XI of 1963)---

----Ss. 6-A, 17 & 24---Ejectment of tenant was sought on the ground of bona fide personal need of the landlord---Tenant, on expiry of 11 months lease period, filed suit for permanent injunction against the landlord seeking permanent and interim restraint orders against his ejectment from rented premises---Validity---Such was patently a mala fide act to forestall any proceedings for eviction and avoidance to pay amount of rent.

(b) Cantonments Rent Restrictions Act (XI of 1963)---

----Ss. 6-A, 17 & 24---Constitution of Pakistan (1973), Art.185(3)---Bona fide personal need of landlord---Tenant deliberately failed to comply with order directing to deposit the arrears and monthly rent---Rent Controller, on the motion of landlord passed an order striking off defence of the tenant in terms of S.17(9) of the Cantonments Rent Restrictions Act, 1963, directing him to vacate the premises and hand over possession thereof to the landlord---Tenant, instead of filing a regular appeal before the High Court filed an application under S.151, C.P.C. before the Rent Controller, who recalled the order of ejectment, subject to payment of fine, with direction to the parties to file rent-account on the next date of hearing---Tenant filed written statement on the same day which was allowed to be placed on record in which he had claimed to have paid a sum of Rs.6,46,800 in cash to the landlord on account of rent of the premises upto 31-2-2006 without the execution of any acknowledgment receipt---Tenant, however, did not comply with the rent deposit order of the Rent Controller--When the case came up for hearing before the successor Rent Controller, he, after hearing the parties, restored earlier order of ejectment passed by his predecessor and directed the tenant to hand over vacant possession of the premises to the landlord---High Court dismissed the appeal against the said order of the successor Rent Controller---Validity---Held, Rent Controller was legally justified in passing the order directing the tenant to deposit tentatively arrears of rent and continue to deposit future rent---No exception could be taken to said order, which remained unattended and not complied with by the tenant without any legal justification---Non-compliance with the said order was bound to result in punitive consequences and culminated in striking off defence of the tenant which was passed after providing an opportunity to the tenant whose representative had appeared before the Rent Controller and candidly admitted that no payment on account of rent had been made by the tenant---Rent Controller, in view of admitted and uncontested position was perfectly justified and duty bound in striking off defence of the tenant and directing his eviction forthwith---Such order of the Rent Controller, though was appealable before the High Court, instead of challenging the same in appeal, the tenant moved an application under S.151, C.P.C. and the incumbent Rent Controller was persuaded to recall of order of eviction, which by reason of non-challenge and with passage of time had attained finality--- Landlord though had not challenged the order of the Rent Controller, but the fact remained that such order being void ab initio, coram non judice and nullity in the eyes of law, could be ignored---Successor incumbent of the Controller, after hearing the parties and realizing that there was absolutely no truth in the submission of the tenant that he had paid a sum of Rs.6,46,800 in advance to the landlord covering the rent upto 31-2-2006 was justified in recalling the order illegally passed by his predecessor---Principles---Supreme Court observed that it was high time that Government should take steps for amendment in the provisions of Cantonments Rent Restrictions Act, 1963 providing for appointment of Judicial Officers as Rent Controller and Additional Controller of Rent under S.6 of the Act instead of conferring quasi-judicial powers on Executive Officer of the Cantonment, who was generally not fully well-versed with the complexities of law but otherwise invested with the power to deal with very valuable property rights of the citizens owning properties in Cantonment areas throughout the country.

Farooq H. Naik, Advocate Supreme Court for Petitioner.

Nemo. for Respondents.

Date of hearing: 12th October, 2005.

2006 S C M R 150

[Supreme Court of Pakistan]

Present: Tassadduq Hussain Jillani and Saiyed Saeed Ashhad, JJ

ZAFAR IQBAL---Petitioner

Versus

MUHAMMAD ILYAS and another---Respondents

Cr. P. L. A. No. 330 of 2005, decided on 21st November, 2005.

(On appeal from the order of the Lahore High Court, Multan Bench, Multan dated 26-7-2005 passed in Criminal Miscellaneous No.988/B of 2005).

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/380/452/148/149---Constitution of Pakistan (1973), Art.185(3)---Bail, cancellation of---Accused had not appeared in Court despite service---Accused was specifically named in the F.I.R. with a definite role to have come to the spot armed with a rifle and to have fired at the deceased and also to have fractured his left arm with a butt blow---Police, prima facie, had no tenable ground to disbelieve the injured witnesses---Case of accused in view of the allegations levelled against him squarely fell within the mischief of S.302, P.P.C.---Impugned order granting bail to accused, thus, was not sustainable---Petition for leave to appeal was consequently converted into appeal and allowed and the bail allowed to accused by High Court was cancelled accordingly.

Ch. Muhammad Abdus Saleem, Advocate Supreme Court for Petitioner.

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

Date of hearing: 21st November, 2005.

2006 S C M R 152

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

ALLIES BOOK CORPORATION through L.Rs.---Petitioners

Versus

SULTAN AHMAD and others---Respondents

Civil Petition No.583-K of 2005, decided on 16th November, 2005.

(On appeal from the judgment of Sindh High Court, Karachi, dated 2-6-2005 passed in Constitutional Petition No.S-773 of 2002).

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

----S. 15---Constitution of Pakistan (1973), Arts.199 & 185(3)---Constitutional petition before High Court---Bona fide personal need of the landlord---Concurrent findings by forums below---Interference of High Court under its constitutional jurisdiction---Scope---Special forum or Tribunal proceeding with a case under Special Statute was legally bound to decide the case rightly and in accordance with law and it had no arbitrary or fanciful discretion to decide the case wrongly---Where the concurrent findings by forums below suffered from illegality, infirmity, misreading and non-reading of evidence on record, misconstruing the evidence or based on extraneous material, then the High Court would be justified in setting aside such concurrent findings---High Court was possessed of power in exercise of its constitutional jurisdiction to substitute the findings of the forums below with its own findings.

Utility Stores Corporation Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447; `Muhammad Sadiq v. Punjab Labour Court No.1, Lahore and another PLD 1988 SC 633; and Messrs Olympia Spinning and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan 2001 SCMR 1103 ref.

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

----S. 15---Bona fide personal need of the landlord---Material facts in establishing the good faith and bona fides---Landlord though has the prerogative to choose a particular house, shop or building for his bona fide personal occupation and use in case the landlord has more than one premises but for exercising such prerogative it is the duty of landlord to give plausible and satisfactory ground/explanation for his insistence to occupy a particular premises in preference to occupy any other premises available for occupation and use---Where the landlord, instead of providing plausible, satisfactory and cogent grounds for not occupying the premises which had become available for occupation did not even disclose the factum of premises having become vacant, same completely negated his good faith and bona fides---Concealment by the landlord of, one or more premises having fallen vacant during pendency of the ejectment proceedings would reflect adversely on the bona fide of his personal need and good faith and would be detrimental to his case.

Mst. Saira Bai v. Syed Anisur Rehman 1989 SCMR 1366 and Ghulam Haider v. Abdul Ghaffar and another 1992 SCMR 1303 ref.

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

----S. 15---Constitution of Pakistan (1973), Art.199---Constitutional petition before High Court---Bona fide personal need of the landlord---Concurrent findings of the two Courts below having been arrived upon justly, fairly and legally, were not liable to be interfered with if the same were neither wrong or incorrect nor were based on arbitrary or fanciful discretion so as to be interfered with.

Utility Stores Corporation Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447; Muhammad Sadiq v. Punjab Labour Court No.1, Lahore and another PLD 1988 SC 633; and Messrs Olympia Spinning and Weaving Mills Ltd. and another v. State Life Insurance Corporation of Pakistan 2001 SCMR 1103 ref.

Neel Keshav, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record (absent) for Petitioners.

Mian Mushtaq Ahmad, Advocate Supreme Court and Raja Sher Muhammad, Advocate-on-Record (absent) for Respondents Nos.1 to 10.

Nemo. for Respondents Nos.11 and 12.

Date of hearing: 12th October, 2005.

2006 S C M R 161

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Raja Fayyaz Ahmad, JJ

MUHAMMAD NISAR---Petitioner

Versus

THE STATE---Respondent

Jail Petition No.381 of 2003, decided on 14th October, 2005.

(On appeal from the judgment, dated 16-10-2003 of Peshawar High Court, Peshawar passed in Criminal Appeal No.451 of 2003).

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

----Ss. 302(b) & 324---Constitution of Pakistan (1973), Art.185(3)---Deceased and his injured brother (complainant) according to medical evidence had been subjected to repeated fires out of which a fatal shot hit the deceased at the vital part of his body. and it could not be said that only one shot was fired by the assailant---Brother of the deceased luckily survived who too had sustained serious firearm wound on the left side of his chest---Direct evidence adduced in support of the incident by the ocular witnesses could not be doubted, discredited or discarded on mere suppositions or any hypothesis not emerging from the prosecution evidence---Record did not indicate that something had preceded the incident causing abrupt provocation to accused to resort to firing---Non­recovery or failure on the part of the Investigating Officer to recover the weapon of offence from the accused who had absconded after commission of the offence and seizure of one crime-empty from the place of occurrence, per se, could not have an adverse effect on the prosecution case in view of the unimpeached ocular account of the incident which was corroborated by medical evidence and other pieces of incriminating circumstantial evidence---Leave to appeal was refused to accused in circumstances.

Fazle Malik and another v. The State 1969 PCr.LJ 908; Muhammad Bashir v. The State PLD 1982 SC 139; Zahir Parvez and another v. The State PLD 1991 SC 575; Khalid Javed v. Ansar Khan and others 1995 SCMR 1846; Ali Muhammad son of Noor Muhammad v. Ali Muhammad son of Wali Muhammad PLD 1996 SC 274; Tayyab Hussain Shah v. The State 2000 SCMR 683 and Bashir Ahmed v. The State 2000 SCMR 1666 ref.

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

----S. 302(b)---Sentence---Solitary fatal blow---Principles---Awarding of lesser sentence is not a universal rule in the case of solitary fatal blow as the Courts have to take notice of the seat of injury, weapon used and the damage done together with the relevant knowledge, preparation, intention or premeditation, which are to be considered while awarding lesser sentence.

Muhammad Bashir v. The State PLD 1982 SC 139 ref.

Muhammad Zaman Bhatti, Advocate. Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 14th October, 2005.

2006 S C M R 170

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

COMMISSIONER OF INCOME-TAX, COMPANIES ZONE-IV, KARACHI---Petitioner

Versus

HAKIM ALI ZARDARI---Respondent

Civil Petition No.820-K of 2003, decided on 8th November, 2005.

(On appeal from the judgment of Sindh High Court, Karachi dated 28-8-2003 passed in Wealth Tax Case No. 178 of 2003).

(a) Wealth Tax Act (XV of 1963)---

----S. 17---Constitution of Pakistan (1973), Art.185(3)---Income Tax Appellate Tribunal Rules, 1982, Rr.10 & 14---Limitation---Date of notice under S.17, Wealth Tax Act, 1963 was not mentioned in the assessment order nor was the notice produced before the Appellate Tribunal, therefore, it could be safely assumed by the Tribunal that the notice was hit by limitation---Both under Cl.(a) and (b) of subsection (1) of S. 17, Wealth Tax Act, 1963, said limitation was not applicable to the assessment but limitation prescribed in S.17 of the Act was applicable to the service of notice only---Tribunal was justified to accept the assesee's appeal on the issue of limitation by cancelling the assessment and modifying the order of the Commissioner so as to vacate the same to the extent of the relevant assessment year---Violation of Rr.10 & 14 of Income Tax Appellate Tribunal Rules, 1982 would in no way render the action and the finding of the Tribunal as illegal or contrary to law---No illegality, infirmity or irregularity in the order of the Appellate Tribunal, which was affirmed by the High Court, having been found, Supreme Court dismissed petition for leave to appeal against said orders.

(b) Limitation---

----Question of limitation being a matter of statute and the provisions thereof being mandatory, same could not be waived and even if waived could be taken up again by the party waiving it and even by the Court itself---Matter of limitation would not be left to pleadings of parties but a duty was imposed on the Court itself to decide whether the proceedings had been filed within the period of limitation---Higher forum would be competent to examine the question of limitation in filing the proceedings before the original/lower forum, if such issue was raised and agitated before it---Principles.

Muhammad Ishaq and another v. Shah Muhammad and others 1985 SCMR 799; Hakeem Muhammad Boota and another v. Habib Ahmad and others PLD 1985 SC 153 and Haji Ghulam Rasul and others v. Government of the Punjab and others 2003 SCMR 1815 ref.

A.R. Akhtar, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 8th November, 2005.

2006 S C M R 175

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Raja Fayyaz Ahmad, JJ

RAJAB alias RAJOO alias NANG and another---Petitioners

Versus

THE STATE---Respondent

Jail Petition No. 119 of 2003, decided on 12th October, 2005.

(On appeal from the judgment, dated 6-5-2003 of the High Court of Sindh, Circuit Court, Larkana, passed in Criminal Jail Appeal No.61 of 1994).

Penal Code (XLV of 1860)---

----S. 365-A---Constitution of Pakistan (1973), Art.185(3)---Statements of the abductees were corroborated by the natural witnesses of the incident including the complainant, who were not shown to have any animosity or motive to implicate the accused falsely in the case---Prosecution evidence was true and inspired confidence---Record did not show that the confessional statement of accused was obtained through any coercion, pressure or duress---Courts below, after having rightly appraised the evidence had correctly convicted and sentenced the accused on well-founded reasons in accordance with the well-established judicial norms and no miscarriage of justice had resulted in the case---Ransom amounts were proved on record to have been paid to the accused for the release of the abductees---Supreme Court usually did not interfere with the proper discretion exercised by the lower Courts---No mitigating circumstances could be pointed out for reduction in the sentence of accused---Leave to appeal was declined to accused in circumstances.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioners.

Nemo for the State.

Date of hearing: 12th October, 2005.

2006 S C M R 178

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY, KARACHI---Petitioner

Versus

MUNIR AHMED GHULAM MUSTAFA AKHTAR---Respondent

C.P.L. A. No.260-K of 2004, decided on 11th October, 2005.

(On appeal from the judgment of High Court of Sindh, Karachi dated 11-11-2003 passed in C. P. No. 13,482 of 2000).

Pakistan Defence Officers' Cooperative Housing Authority Order [P.O. No.7 of 1980]---

---- Art. 17, proviso---Constitution of Pakistan (1973), Art.185(3)---Cancellation of allotment of commercial plot by the Executive Board of the Authority---Validity---Proviso to Article 17 of the Pakistan Defence Officers' Cooperative Housing Authority Order, 1980, had authorized Executive Board of the Authority to cancel allotment of a plot, which was made or issued in contravention of the bye-laws of the Society or resolution of the Managing Committee of the Society---Commercial plot, in the present case, was allotted to the respondent in consonance with the Regulations of the Authority and as a member duly enrolled with the Authority on account of his old membership with the erstwhile Society irrespective of the fact that at the time of actual allotment he was no longer working in Military Accounts Service and was posted by the Federal Government as Chairman of Government owned Corporation---Membership of the respondent having remained intact, there was hardly any question of cancellation of his allotment---Valuable right and interest had already accrued in favour of respondent and he did not cease to be the member of the Authority, as wrongly and erroneously understood by the officials of the Authority---Allotment of commercial plot in favour of the respondent, after full payment, had attained finality and it being a past and closed transaction, could not be reopened on imaginary and elusive consideration that at the time of allotment, he was not physically serving in Military Accounts Service and not receiving his emoluments from Defence budget/estimates---Right accrued in favour of a person could not be disturbed and destroyed by subsequent developments and once a person continued to he a lawful member of a Society or the Authority, he did not lose his right and interest in the property already accrued to him---No contravention of the bye-laws of the Society or the resolution of the Managing Committee was committed because the allotment in favour of the respondent took place long after the creation of the petitioner-Authority in normal course of business in a fair and, transparent manner---Such allotment had the blessings of Executive Committee and doctrine of promissory estoppel could be pressed into service against the petitioner-Authority---Colourful exercise of power on the part of the Executive Board, therefore, suffered from patent illegality and was rightly declared as such by the High Court in the exercise of its constitutional jurisdiction---Jurisdiction exercised by the High Court within the contemplation of Art.199 of the Constitution did not suffer from any legal or factual infirmity so as to warrant interference by Supreme Court---No question of law of public importance was spelt out in circumstances---Petition for leave to appeal against the order of the High Court was dismissed.

Khalid Javed, Advocate Supreme Court and Raja Sher Muhammad Khan, Advocate-on-Record for Petitioner.

Respondent in person.

Date of hearing: 11th October, 2005.

2006 S C M R 182

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Raja Fayyaz Ahmad, JJ

NEHAAL AHMED---Petitioner

Versus

THE STATE---Respondent

Jail Petition No.33 of 2005, decided on 21st December, 2005.

(On appeal from the judgment, dated 13-12-2004 passed by the Lahore High Court, Lahore in Criminal Appeal No. 17 of 2001).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Woman in the natural course of events and the traditions prevalent in the locality would go out of the house to attend the call of nature after Fajar prayer time along with other female members of the family and not all alone---Two witnesses i.e. mother and sister of the deceased who had deposed against the accused,, thus, could not be termed as unnatural witnesses and their presence at the crime spot at the relevant time could not be doubted---Medical evidence had also supported the ocular account furnished by the said two witnesses---Verdict rendered by the two Courts below regarding the guilt of accused was in accordance with the evidence on record and nothing material was pointed out to create any doubt in the prosecution case---Leave to appeal was declined to accused in circumstances.

Hafizur Rehman, Advocate Supreme Court for Petitioner. M. Zaman Bhatti, Advocate Supreme Court for the State.

Date of hearing: 21st November, 2005.

2006 S C M R 185

[Supreme Court of Pakistan]

Present: Javed Iqbal and Hamid Ali Mirza, JJ

MUHAMMAD AMIR through L.Rs.---Petitioners

Versus

MUHAMMAD SHER and others---Respondents

Civil Petition No.3344 of 2003, decided on 7th October, 2005.

(On appeal from the order of the Lahore High Court, Lahore, dated 16-10-2003 passed in C.R. No. 1892 of 2003).

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

----S. 13---Constitution of Pakistan (1973), Art.185(3)---Right of pre-emption, exercise of---Concurrent findings of fact by the Courts below---Suit filed by pre-emptor, was dismissed by Trial Court and judgment was maintained by Appellate Court as well as by High Court---Validity---Concurrent findings of facts recorded by the Courts below could not be reversed without any lawful justification, which was lacking in the present case---Witnesses of pre-emptor did not even support his claim and he failed to prove Talb-i-Muwathibat by producing any cogent and concrete evidence---Evidence led by pre-emptor was contrary to the version of pre-emptor ---Judgment passed by High Court was well based and did not warrant interference by Supreme Court---Leave to appeal . was refused.

Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rashid Ahmed v. Muhammad Siddique PLD 2002 SC 293 rel.

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

----O. XX, R.5---Judgment---Non-giving of issue-wise findings---Effect---Judgment which deals with all points raised, fulfils the requirements of law even though it may not have discussed each issue separately cannot be termed as `illegal or ab initio void'.

Umar Din v. Ghazanfar Ali 1991 SCMR 1816 rel.

Ch. Akhtar Ali, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 7th October, 2005.

2006 S C M R 188

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

DISTRICT OFFICER REVENUE, KASUR---Petitioner

Versus

ABDUL REHMAT SHAUKAT- Respondent

Criminal Petition No.433/L of 2004, decided on 29th November, 2005.

(On appeal from the order, dated 9-6-2004 passed by Lahore High Court, Lahore in Criminal Original No. 1488/W of 2002).

Constitution of Pakistan (1973)---

----Art. 185(3)---Petition for leave to appeal---Land of the respondent was utilized without recourse to lawful procedure which act was not only illegal but highly immoral and reprehensible since the Province/State and its functionaries were supposed to protect the life, liberty and the property of citizen rather than forcibly use the same for the benefit of a person in power---Constitutional petition filed by the respondent to question the legality of taking over his property was allowed by the High Court on the statement of the then Advocate-General, with direction to the Provincial Government to allot agricultural land to the respondent---Judgment of High Court was upheld by the Supreme Court while petition of the Provincial Government was dismissed--- For almost five years the petitioner (District Officer Revenue) and other functionaries of the Province dragged their feet and did not implement the direction of the Supreme Court and respondent was compelled to file contempt application in the High Court---High Court, instead of punishing the delinquent officials, considered it expedient to once again direct such officials to implement the direction within one month of the judgment of the High Court---Once again the petitioner did not comply with the direction and instead filed the present petition for leave to appeal---Validity---Supreme Court took notice of non-compliance and sensing the mood of the Supreme Court the Chief Secretary of the Province, appeared and stated that "the compact piece of agricultural land was being mutated and handed over to respondent" and consequent to the undertaking of the Chief Secretary the land had been mutated in favour of the respondent and its possession delivered---Not only the District Officer Revenue but all the concerned officials of the Provincial Government had been guilty of non-compliance of not only the judgment and direction of the High Court but even that of the Supreme Court---Initiation of contempt proceedings did not spur the officials to do that which they were legally bound to do---High Court, in its wisdom did not take the penal action and instead gave said officials another opportunity to comply with the direction and officials still did not move and chose to challenge the direction of the High Court by filing the present petition for leave to appeal---Had the Supreme Court not shown its displeasure, the petitioner and other officials had no intention to implement the direction of the High Court which reflected an extremely unsatisfactory state of affairs---If it could be said by the petitioner that the respondent had taken little more than what he deserved, it was the officials who had to take the blame for this; they had committed not only an illegal, 'inequitable and immoral but criminal act in forcibly utilizing the land of the respondent in order to please the Chief Minister and his relatives--Respondent was to be compensated not only for the land actually taken but for the long suffering and agony for about a decade---Supreme Court being satisfied with the explanation of the respondent declined to take further action in the matter and dismissed the petition for leave to appeal---Supreme Court, however, recorded its displeasure over the conduct of the concerned officials involved in the episode and observed that if penal action was not being taken against said officials, it was with the hope that in future the orders of the Courts would be shown due respect and duly complied with.

Ch. Muhammad Ashraf, Advocate Supreme Court and Ch. Muhammad Hanif Zahid, Advocate-on-Record for Petitioner.

Shahzad Shaukat, Advocate Supreme Court, Ali A.kbar Qureshi, Advocate Supreme Court, Ameer Alam Khan, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Respondents.

Ch. Muhamrad Sadiq, Additional Advocate-General Punjab, Tariq Yousaf, Member, Colonies Board of Revenue, Punjab, Lahore, Anwar Aziz, District Officer, Revenue Kasur and Shahbaz Ahmad, Tehsildar, Pattoki for the State.

Date of hearing: 29th November, 2005.

2006 S C M R 193

[Supreme Court of Pakistan]

Present: Javed Iqbal and Hamid Ali Mirza, JJ

Mst. SAADAT SULTAN and others---Petitioners

Versus

MUHAMMAD ZAHUR KHAN and others---Respondents

Civil Petition No.294 of 2004, decided on 14th November, 2005.

(On appeal against the judgment, dated 15-2-2003 passed by Peshawar High Court, Abbottabad Bench, in Civil Revision No.85 of 1996).

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

----Arts. 59, 60 & 61---Expert opinion---Handwriting expert---Scope---Opinion of handwriting expert is very weak type of evidence and is not of a conclusive nature---Expert's evidence is only confirmatory or explanatory of direct or circumstantial evidence and confirmatory evidence cannot be given preference where confidence inspiring and worthy of credence evidence is available---No doubt that opinion of handwriting expert is relevant but, it does not amount to conclusive proof and can be rebutted by overwhelming independent evidence---Always risky to base findings of genuineness of writing on expert's opinion---Nothing in Qanun-e-Shahadat exists which requires the evidence given by an expert in any particular case to be corroborated before it can be acted upon as sufficient proof of what the expert states---Question as to how much reliance a Court should place on the statement of any particular witness in any particular case must necessarily depend on the facts and circumstances of that case.

Yaqoob Shah v. The State PLD 1976 SC 53; Abdul Majeed v. State PLD 1976 Kar. 762; Ali Nawaz Gardezi v. Muhammad Yousuf PLD 1963 SC 51; Kazim Hussain v. Shambhoo Nath 1931 O. 298; Deputy Commissioner, Lucknow v. Chandra Kishore Tewari 1947 O. 180; Mushtaq Ahmad Gurmani v. Z.A. Sulehri PLD 1958 Lah. 747; Sadiqa Begum v. Ata Ullah 1933 L. 885; Lt.-Col. Muhammad Yousuf v. All Nawaz Gardezi PLD 1963 Lah. 141; Indar Datt v. E. 1931 L. 408 and Ladharam Narsinghdas v. E. 1945 S.4 rel.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Art.61---Constitution of Pakistan (1973), Art.185(3)---Declaration of title and cancellation of mutation---Concurrent findings of fact by the Courts below---Opinion of handwriting expert---Plaintiffs sought cancellation of sale mutation attested in favour of defendant, on the ground of fraud and without consideration---Plaintiffs alleged that signatures of deceased owner of the land on disputed mutation were forged---Plaintiffs produced handwriting expert who opined that the signatures available on the mutation were not made by the deceased owner---Such opinion was rebutted by defendant by producing cogent, concrete and forthright oral evidence---Trial Court, instead of relying upon the opinion of handwriting expert, relied upon the testimony of witnesses produced by defendant and dismissed the suit---Judgment and decree passed by Trial Court was maintained by Appellate Court as well as by High Court---Validity---Concurrent findings of fact recorded by Trial Court and Appellate Court which had been upheld by High Court, could not be reversed without any lawful justification which was lacking in the case---Concurrent findings of fact recorded by Courts below though not being sacrosanct yet could not be reversed unless and until it was established that there was misreading or non-reading of evidence---Plaintiffs could not point out any misreading or non-reading of evidence or illegality or irregularity committed by the Courts below in arriving at the conclusion, which was in accordance with the evidence, which had rightly been appreciated by the Courts below--Sale consideration was proved to be received by the deceased owner of the suit land thus the contention of plaintiffs that no sale could be finalized unless and until its consideration was passed on to the vendor was fallacious---Supreme Court declined to interfere in the concurrent judgments and decrees passed by the Courts below---Leave to appeal was refused.

Syed Muhammad Ayub Bokhari, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 14th November, 2005.

2006 S C M R 198

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, Mian Shakirullah Jan and Raja Fayyaz Ahmed, JJ

MUHAMMAD ASLAM alias MOAVIA alias ABDUL REHMAN----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.22 of 2005, decided on 22nd November, 2005.

(On appeal from the judgment, dated 5-11-2004 of Lahore High Court High, Lahore passed in Criminal Appeal No.59/J of 2003).

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

----S. 7---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal; refusal of---Delay per se in holding the identification test of the accused after interrogating him in Jail, had not vitiated the test proceedings in the absence of indication, apparent or inherent, from the record that such delay was caused to tutor the identifier about the description and features etc. of the accused---Accused had killed the deceased by firing in broad-daylight in the presence of his son, who had also identified the accused at the trial and his statement was firm, straightforward, convincing and credible---Defence had failed to show at the trial that the accused had been shown to the prosecution witnesses who had identified him in the identification test or that his photographs were shown to them or published in the newspapers etc., therefore, it could not be presumed hypothetically that the said prosecution witnesses had the chance or the opportunity to have seen the accused or his photographs---Both the. Courts below had deeply scrutinized the entire evidence and attended to all the material aspects of the case, without any misreading or non-reading of evidence---Impugned judgment did not suffer from any illegality or infirmity---Leave to appeal was declined to accused in circumstances.

Zulfiqar Ahmad Bhutta, Advocate Supreme Court for Petitioner.

M. Aslam Malik, Advocate Supreme Court for the State.

Date of hearing: 22nd November, 2005.

2006 S C M R 204

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Khalil-ur-Rehman Ramday, JJ

NASIR MEHMOOD and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.50 of 2000, decided on 31st May, 2004.

(On appeal from the judgment, dated 20-2-2001 of the Lahore High Court, Lahore, passed in Criminal Appeal No.762 of 1995 and Murder Reference No.305 of 1995).

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

----Ss. 302(b)/34, 337-A(ii)/34, 337-L(ii)/34 & 337-D---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was allowed to accused to consider whether the main accused could be punished with Qisas for the Qatl-i-Amd of his wife in view of the provisions of S.306, P.P.C., who had left behind two daughters out of her wedlock with the accused who were the Wali of the deceased and direct descendants of the accused.

(b) Penal Code (XLV of 1860)-

-------S. 306---Qatl-i-Amd not liable to Qisas---Extent and scope---Provisions of S.306, P.P.C. provide only that Qisas shall not be enforced on an offender whose descendants were Wali of the deceased person.

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

----Ss. 302(b)/34, 337-A(ii)/34, 337-L(ii)/34 & 337-D---Appraisal of evidence---Main accused had not been punished with death by way of Qisas under S.302(a), P.P.C., but had been directed to suffer death by way of Tazir under S.302(b)/34, P.P.C.---Question to resolve on which the leave to appeal had been granted, therefore, did not require determination and the other issues formulated in the leave granting order, thus, had also lost significance in the case---All the four eye-witnesses were not only injured in the occurrence but they were also the natural witnesses of the incident being the residents of the place where the" crime had been committed---No background of any previous enmity existed between the parties to lead the eye-witnesses to maliciously involve the accused in the present occurrence---Defence plea taken by accused had been rightly discarded by the Courts below for sound' reasons---Accused had acted in a callous, ruthless and brutal manner in his efforts to take back his estranged wife and was responsible for the death of two innocent persons and for causing injuries to four other innocent victims---Accused did not deserve any sympathy or leniency---Appeal filed by accused was dismissed accordingly.

Muhammad Ozair Chughtai, Advocate-on-Record for Appellants.

Raja Abdul Rehman, A.A.-G. for the State.

Date of hearing: 31st May, 2004.

2006 S C M R 207

[Supreme Court of Pakistan]

Present: Tassadduq Hussain Jillani and Ch. Ijaz Ahmad, JJ

PUNJAB ROAD TRANSPORT CORPORATION----Petitioner

Versus

ZAHIDA AFZAL and others----Respondents

Civil Miscellaneous Application No.1604/L of 2005 in C.P.L.A. No.4081/L of 2001, decided on 2nd December, 2005.

(On appeal from judgment/order dated 24-10-2003 in R.F.A. 34 of 1992).

Per Ch. Ijaz Ahmad, J; Tassaduq Hussain Jillani, J. agreeing---

(a) Tort---

----Fatal accident---Suit for damages/compensation against Road Transport Corporation (Government owned) when Bus of the Corporation being driven by its employee rashly, carelessly and negligently and on the wrong side, rammed into a motor car occupied by a family wherein a Medical Doctor and his minor child died on the spot while his wife sustained injuries and car was severely damaged---Surviving members claimed to be totally dependent upon the late Doctor and on account of his death claimed damages and compensation---Courts below had given concurrent findings of fact against the Corporation stating that driver of the vehicle had driven the vehicle at relevant time on the wrong side of the road with high speed; that vehicle in question was driven by the Driver of the Corporation negligently and carelessly due to which two innocent persons died and that their car was damaged whereas the vehicle of the Corporation was not damaged---Validity---Such findings were given after proper appreciation of evidence by the Courts below---Claim for compensation was projected determination of compensation as to be made on the basis of average expectancy of life in the community as a whole---Plaintiff had to prove the factum 'of accident whereafter the burden had shifted upon the defendant to prove that the accident occurred not due to his or their negligence---Burden to prove, in the present case, had shifted upon the defendants (Corporation) to prove that deceased died not because of their negligence, which the defendants failed to discharge in accordance with law---Both the Courts below, therefore, were justified to grant damages to the plaintiffs which was not only in accordance with evidence on record but was also in accordance with settled law---Principles.

Davies v. Powell Duffeyu Associated Coleries Ltd. 1942 AC 602; Jalil Ahmad Khan v. Mst. Kulsoom and another 1968 SCMR 448; Sri Manmatha Nath Kuri v. Moulvi Muhammad Mokhlesur Rehman PLD 1969 SC 565; Karachi Transport Corporation v. Latif-ur-Rehman and others 1993 SCMR 1149 and Pakistan Steel Mills Corporation v. Nazar Hussain 1990 CLC 515 ref.

(b) Tort---

----Fatal accident---Damages and compensation---Determination of---Principles to be kept in view by the Court while awarding damages in case a person died on account of accident due to negligence of the driver of an employer's vehicle causing death of the victims, enumerated.

Following are the principles to be kept in view while awarding damages in case a person dies on account of accident due to the negligence of the driver of the employer's vehicle:--

(i) the position of each dependent of the deceased should be considered separately;

(ii) the damages are not to be given as solatium but should be calculated with reference to a reasonable expectation of pecuniary benefit, from the continuance of the life of the deceased. Damages claimed by dependents for their own pain and suffering or for the loss occasioned to them due to the death of the deceased which is not referable to the expectation of any such pecuniary benefit, is outside the scope of the Act;

(iii) the deceased need not be earning or the dependents need not be actually deprived of benefit. Reasonable expectation of such earning or benefit is enough;

(iv) the pecuniary loss due to the death should stem not from a mere speculative possibility of pecuniary benefit from the continuance of the life of the deceased but only from a reasonable possibility of such benefits;

(v) where the actual extent of such pecuniary loss cannot be ascertained accurately, the sum may be an estimate or partly a conjecture;

(vi) in assessing the damages all circumstances which may be legitimately pleaded in diminution of the damages should be considered;

(vii) the pecuniary loss of each dependent should be ascertained by balancing on the one hand the loss to him of future pecuniary benefits and on the other any pecuniary advantage which from whatever source comes to him by reason of death.

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

----Arts. 4 & 5(2)---Duty of each and every organ of the State and people to work within the framework of the Constitution and law.

The Constitution of a country is a kind of social contract which binds people, society and a State. The terms of the contract foster feelings of interdependence of belonging to an entity and of adherence to law. An honest commitment to the goals set out in the Constitution ensures promotion of nationhood and stability of the system. In view of Article 4 read with Article 5(2) of the Constitution, it is the duty of each and every organ of the State and people of Pakistan to work within the framework of Constitution and law.

?

Ch. Zahoor Elahi's case PLD 1975 SC 383 and Zahid Rafique's case PLD 1995 SC 530 ref.

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

----Chap. I [Arts.8 to 28]---Fundamental Rights---Implementation---Supreme Court desired the promotion of law of tort so that the people must understand that they could not live as a nation without performing their duties within the framework of law---Principles.

Constitution contains Chapter I relating "Fundamental Rights" in which life of human being is given due importance. It requires every one to work for the welfare of the people of Pakistan but a person who is violating the law and Constitution works against the welfare of the people that is why it is high time to promote the law of tort so that the people must understand that they cannot live as a nation without performing their duties within the framework of law.

Mere framing of law does not provide good results unless the law is strictly implemented by all the sections of the society in letter and spirit without fear, favour and nepotism as envisaged in "Sura-e-Baqra" of Holy Qur'an. To achieve the goal of ensuring every citizen and organ of the State on a right path the nation, as a whole, has to honour the commitment in terms of the Constitution and law. One of the modes to achieve this goal is to file a suit for damages against the offenders by the aggrieved persons. It is the duty of the members of the Bar Associations and Bar Council to educate the people and to file suits for damages against the offenders apart from the criminal proceedings. It is also the duty and obligation of media to provide to cultivate awareness of rights specially law of tort which will ultimately bring/compel every authority and functionary including the Chief Executive of the country to work within the framework of law and Constitution.

Sura-e-Baqra of Holy Qur'an ref.

Ahmad Awais, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Petitioner.

Nemo. for Respondent.

Date of hearing: 2nd December, 2005.

2006 S C M R 216

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

MUHAMMAD IQBAL----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.148 of 2004, decided on 19th October, 2005.

(On appeal from the judgment, dated 11-2-2004 of the Lahore High Court, Lahore passed in Criminal Appeal No.999 of 2001).

Penal Code (XLV of 1860)---

------S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Ocular evidence furnished by the complainant and other prosecution witness was fully corroborated by medical evidence---Accused, according to record, had been changing his stance---Motive put forth in the F.I.R. was stated differently which had no nexus with the theory put forth by the accused in his statement recorded under S.342, Cr.P.C.---Accused had not asked any question on motive as mentioned in the F.I.R. during cross­ examination---Prosecution, thus, had fully established its case against the accused---No illegality, misreading or non-reading of evidence could be pointed out by the defence warranting interference by Supreme Court---Leave to appeal was refused to accused accordingly.

Sardar M. Siddique Khan, Advocate Supreme Court for Petitioner.

Nemo. for Respondents.

Date of hearing: 19th October, 2005.

2006 S C M R 219

[Supreme Court of Pakistan]

Present: Yaved Iqbal and Hamid Ali Mirza, JJ

FAIZ BAKHSH and others----Petitioners

Versus

DEPUTY COMMISSIONER/LAND ACQUISITION OFFICER, BAHAWALPUR and others----Respondents

Civil Petition No.1597 of 2003, decided on 11th October, 2005.

(On appeal against the judgment, dated 22-4-2003 passed by Lahore High Court, Bahawalpur Bench in I.C.A. No.16 of 1997/BWP).

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Factual controversies cannot be resolved in Constitutional jurisdiction.

State Life Insurance Corporation v. Pakistan Tobacco Company Limited PLD 1983 SC 280; Muhammad Younas Khan v. Government of N.-W.F.P. through Secretary, Forest and Agriculture, Peshawar 1993 SCMR 618 and Fateh Ali v. Province of Balochistan through Secretary, Health 1997 SCMR 1687 rel.

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

----Arts. 185(3) & 199---Constitutional jurisdiction of High Court---Scope---Concealing of facts---Disputed land was acquired by Government in years 1955 to 1960, for establishment of cantonment but it could not be incorporated in record of rights and the omission was rectified on 20-6-1990---Grievance of petitioners was that no compensation was given to them---Petitioners relied upon revenue record for the year 1984 and 1985, wherein they were shown as owners---Earlier, petitioners filed civil suit which was withdrawn by them and later on another suit was filed, which was dismissed---Petitioners without disclosing the fact of filing of civil suits, filed the Constitutional petition, which was dismissed by the High Court---Intra-Court Appeal was also dismissed by Division Bench of High Court---Validity---Petitioners failed to reply the question whether the disputed land was ancestral property or it was purchased, got allotted or was leased out to them---Petitioners also could not show if they were in physical possession, cultivatory or constructive at the time when the land was acquired---No documentary evidence, except record of right pertaining to years 1984 and 1985, was produced by petitioners to establish their ownership and possession---Petitioners could have substantiated their claim by producing copies of record of rights pertaining to years 1956 to 1990, when disputed mutation was got attested---Petitioners were not in a position to mention the specific year when the title/ownership of the property was acquired by them nor were able to explain as to why compensation could not be claimed at the relevant time---Had the petitioners been landowners, they would have been compensated but no claim whatsoever was made for compensation and rightly so because they were not the owners of the land which was acquired---Constitutional jurisdiction of High Court under Art.199 of the Constitution could not be invoked by any one who was guilty of bad faith and of unconscionable conduct---Right was in the nature of ex debito justitiae, but would only be granted if the petitioners could show that their conduct was not such as to disentitle them of such relief---Supreme Court declined to interfere in the judgments passed by the Courts below---Leave to appeal was refused.

Manzoor Hussain v. Zulfiqar Ali 1983 SCMR 137; Khan Gul v. District Judge, Attock PLD 1990 Lah. 263; P.G. Barganza v. Border Area Allotment Committee 1984 CLC 1479; Muntizma Committee v. Director K.A. PLD 1992 Kar. 54; Mahmoona v. Ilam Din PLD 1984 Lah. 228; Khairuddin v. Settlement Commissioner 1988 SCMR 988; Muhammad Ali v. Government of Sindh 1986 CLC 1123; Ghulam Rasool v. Tauheed Akhtar 1991 MLD 1755; Raza Khan v. V.C. N.-W.F.P. University of Engineering and Technology 1982 SCMR 560; Shams Din v. Additional Settlement Commissioner PLD 1985 Lah. 508; Muhammad Azhar v. Province of Punjab PLD 1975 Lah. 921; Ghulam Haider v. Station House Officer CPS PLD 1988 Quetta 52; Syed Shah v. Political Agent Bajaur Agency PLD 1981 Pesh. 57; Muhammad Aman v. Atta Muhammad 1982 SCMR 270; Abdur Rahim Khan v. Town Committee 1985 CLC 2805 and Rehmatullah Khan v. Pir Shahzada PLD 1961 Pesh. 40 rel.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction of High Court under Art.199 of the Constitution could not be invoked by anyone who was guilty of bad faith and of unconscionable conduct---Right was in the nature of ex debito justitiae, but would only be granted if the petitioners could show that their conduct was not such as to disentitle them of such relief.

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

----Art. 199---Constitutional jurisdiction of High Court---Enforcement of fundamental rights---Principles---High Court, under its Constitutional jurisdiction is fully empowered for enforcement of fundamental rights but it must be satisfied with such allegations which are well founded, without bias and based on concrete evidence---Main object of the provisions as contained in Art.199 of the Constitution is the enforcement of right and not the establishment of legal rights---In such view of the matter, the petitioner who seeks to enforce such legal rights must be specific, precise, clear and unambiguous and besides that there must be an actual infringement of the rights so asserted.

State of Bombay v. United Motors Ltd. AIR 1953 SC 252 and State of Orissa v. Ram Chandra AIR 1964 SC 685 rel.

Ejaz Ahmed Ansari, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners.

Nemo. for Respondents.

Date of hearing: 11th October, 2005.

2006 S C M R 228

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Raja Fayyaz Ahmad, JJ

MUHAMMAD ASLAM and another----Petitioners

Versus

THE STATE----Respondent

Jail Petition No.116 of 2003, decided on 11th October, 2005.

(On appeal from the judgment, dated 23-7-2001 of the Lahore High Court, Multan Bench, Multan, passed in Criminal Appeal No.193 of 2005).

Penal Code (XLV of 1860)---

----Ss. 302(b)/34 & 324/34-Constitution of Pakistan (1973), Art.185(3)---Petition for leave to appeal was barred by 640 days for which, no plausible 'explanation had been furnished---Eight persons including an Unborn child of eight months had lost their lives in the case, who had been brutally murdered by the accused---Case against accused admittedly was not one of mistaken identity---Two injured eye-witnesses, real cousins, had categorically deposed against the accused, who had furnished irrefutable ocular account of the occurrence---Motive had also been believed by both the Courts below---No legal infirmity, irregularity, misreading or non-reading of evidence had been pointed out in the impugned judgment---Leave to appeal was declined to accused both on merits as well as on the point of limitation in circumstances.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioners.

Nemo. for Respondent.

Date of hearing: 11th October, 2005.

2006 S C M R 231

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Falak Sher and Nasir-ul-Mulk, JJ

SAJID MUMTAZ and others----Petitioners

Versus

BASHARAT and others----Respondents

Criminal Petitions Nos.92-L and 145-L of 2003, decided on 28th September, 2005.

(On appeal from the judgment, dated 8-1-2003 passed by the Lahore High Court, Lahore in Criminal Appeals Nos.1316, 1317, 1294, 1318, 1561 of 2002 and Criminal Revision No.857 of 2002 with Murder Reference No.76-T of 2002).

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

----Ss. 365-A/114, 302(b)/34 & 201---Anti-Terrorism Act (XXVII of 1997), Ss.7(a), 7(b) & 6(2)(a)---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal of accused by High Court---Writing of the different samples of the letter demanding ransom allegedly written by the accused was not at all legible muchless comparable by the Expert---Even otherwise, said circumstantial evidence was never put to accused when examined under S.342, Cr.P.C.---Moulds of footprints and tyres lifted from near the dead body of the deceased, claimed by the prosecution to be of the joggers and motorcycle of the accused, having been found unfit for comparison, were of no avail to prosecution---Recovery of the jacket and the slip regarding payment of school fee, relied upon by the prosecution, also did not help it, because neither the jacket was proved to be that of the deceased nor the payment of fee was independently proved from the quarter concerned---Picture frame containing the photo of the accused lying in the house relied upon as a source of identification of accused, was a useless effort of the prosecution, as the deceased boy was allegedly kidnapped from a public place by his neighbours who must have been identified there and then---Recovery of chloroform was again useless as no evidence was available on record that the abductee was administered chloroform either at the time of occurrence or at any subsequent stage, nor there was any medical report to that effect---"Chhuri" did not carry any stains of blood and was a normal "Chhuri" usually found in every house as a kitchen knife---Recovery of a pair of slippers allegedly belonging to the deceased was not believable as admittedly the same had remained on the person of the deceased till the recovery of his dead body and it was not known as to which pair of slippers was recovered in the case---Evidence of sniffing dogs was contradictory as well as self-destructive---Extra-judicial confessions allegedly made by accused, out of whom those of two accused were jointly made, were excluded from consideration, as the witnesses of the same were neither the close confidents of the accused. nor they in any manner were said to be sharing any habit or association with the accused and were of no social or official status---Above all, none of the accused had any apprehension of being suspected, involved or arrested on the day of making the extra judicial confessions, which were absolutely unnatural---All the pieces of circumstantial evidence, thus, were not worthy to be placed reliance upon---High Court had rightly acquitted the accused---Leave to appeal was refused to the State and the complainant accordingly.

Ahmed v. The Crown PLD 1951 FC 103 ref.

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

----S. 164---Confession---Extra-judicial confession---Purpose and philosophy---Guidelines stated---Extra-judicial confession must be received with utmost caution---Court before acting upon a retracted extra-judicial confession must inquire into all material points and surrounding circumstances to satisfy itself fully that the confession cannot but be true---As an extra-judicial confession is not a direct evidence, it must be corroborated in material particulars before being made the basis of conviction---Status of the person before whom the extra-judicial confession is made must be kept in view---Joint confession cannot be used against either of accused---Extra-judicial confession is always a weak type of evidence which can easily be procured, whenever direct evidence is not available---Exercise of utmost care and caution has always been the rule prescribed by the Supreme Court in such cases---Motivating factors for a person guilty of offence entailing capital punishment to make a confession generally are (i) to boast off, (ii) to ventilate the suffocating conscience and (iii) to seek help when actually trapped by investigation from a third person who is authoritative, socially or officially--Extra-judicial confessions have almost become a norm when the prosecution cannot otherwise succeed---When the Investigating Officer fails to properly investigate the case, he resorts to padding and concoctions like extra-judicial confessions, which by now ' have become the signs of incompetent investigation---Judicial mind, therefore, before relying upon such weak type of evidence, capable of being effortlessly procured, must ask a few questions, like why the accused should at all confess, what is the time lag between the occurrence and the confession, whether the accused had been fully trapped during investigation before making the confession, what is the nature and gravity of the offence involved, what is the relationship or friendship of the - witnesses with the maker of confession and what above all is the position or authority held by the witnesses.

Ahmed v. The Crown PLD 1951 FC 103 ref.

Mian Aftab Farrukh, Advocate Supreme Court for Petition (in Criminal Petition No.92/L of 2003).

Zafar Iqbal Ch., Advocate Supreme Court for Respondents Nos.1, 2 and 5 (in Criminal Petition No.92/L of 2003).

Malik Abdul Wahid, Advocate Supreme Court for Respondent No.3 (in Criminal Petition No.92/L of 2003).

Malik Rab Nawaz Noon Senior Advocate Supreme Court for Respondent No.4 (in Criminal Petition No.92/L of 2003).

Ms. Afshan Ghazanfar, Assistant Advocate-General, Punjab for the Petitioner/State (in Criminal Petition No.92/L of 2003).

Ms. Afshan Ghazanfar, Assistant Advocate-General, Punjab for the State (in Criminal Petition No.145/L of 2003).

Malik Rab Nawaz Noon, Senior Advocate Supreme Court for Respondent No.1 (in Criminal Petition No.145/L of 2003).

Zafar Iqbal Ch. Advocate Supreme Court for Respondents Nos.2 and 3 (in Criminal Petition No.145/L of 2003).

Malik Abdul Wahid, Advocate Supreme Court for Respondent No.4 (in Criminal Petition No.145. L of 2003).

Date of hearing: 28th September, 2005.

2006 S C M R 240

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

MUHAMMAD RAZZAQ----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.60 of 2004, decided on 20th October, 2005.

(On appeal from the judgment, dated 26-1-2004 of the Lahore High Court, Lahore, passed in Criminal Appeal No.115-J of 2000 and. Murder Reference No.138 of 2000).

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

------S. 302(b)-Constitution of Pakistan (1973), Art. 185(3)---Straightforward and consistent ocular testimony did not suffer from any inherent defect or material lacuna---Eye-witnesses being natural witnesses of the occurrence, their presence at the site had been established---Mere relationship of the eye-witnesses with the deceased was no ground to discard their evidence, which otherwise was true, natural and believable---Prosecution had fully proved its case against the accused by producing cogent evidence---No extenuating circumstance was available on record for award of lesser penalty---Concurrent findings of the two Courts below did not suffer from any illegality or irregularity---Leave to appeal was refused to accused accordingly.

Arshad Ali Chaudhry, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 20th October, 2005.

2006 S C M R 243

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Mian Shakirullah Jan, JJ

Haji NOOR AHMED and others----Appellants

Versus

GOVERNMENT OF PUNJAB and others----Respondents

Civil Appeal No.2128 of 2004 and Civil Petitions Nos.1178/L and 1179/L of 2004, decided on 13th October, 2005.

(On appeal from the judgment, dated 2-4-2003 passed by the Punjab Service Tribunal, Lahore in Appeal No.1098 of 1998, Appeal No.2555 of 2003 and in Appeal No.1426 of 2003 dated 6-1-2004).

(a) Punjab Education Department (Schools Education) Recruitment Rules, 1987---

----Sched., item No.5---Constitution of Pakistan (1973), Art. 212 (3)---Leave to appeal was granted by Supreme Court to consider the contention of civil servant that requirement of possessing degree at least of second Division in M.A. was meant for those candidates who had applied for initial recruitment against 33% quota, whereas candidates whose cases were covered under 67% of promotion quota, amongst SSTs for the posts of Headmaster/Headmistress were not required to at least possess second Division in M.A.

(b) Punjab Education Department (Schools Education) Recruitment Rules, 1987---

----Sched., item No.5---Service Tribunals Act (LXX of 1974), S.4-Promotion-Eligibility-,--Civil servant possessed third division masters degree and was appointed before enforcement of Punjab Education Department (Schools Education) Recruitment Rules, 1987---Grievance of civil servant was that he was wrongly denied promotion to the post of Headmaster / Deputy District Education Officer in BPS-18---Appeal filed by civil servant was dismissed by Service Tribunal---Validity---By virtue of Note-1 in Item No.5 of Schedule to Punjab Education Department (Schools Education) Recruitment Rules, 1987, an exception was created in Rules to protect the right of promotion of SS Teachers in service of Education Department, Government of Punjab, immediately before enforcement of Rules---Such SS Teachers were of two categories, graduate and post-graduate---Right of promotion of the first category of SS Teachers was protected against the posts of Headmaster/Deputy District Education Officer in BPS-17 of promotion quota and SS Teachers of second category possessing master degree in any division, were made eligible for promotion to BPS-18 post and could also be posted as Subject Specialist---No ambiguity was found in the Punjab Education Department (Schools Education) Recruitment Rules, 1987, to suggest that the exception created in Rules, would be confined only to the extent of post of Headmaster/Deputy District Education Officer other than BPS-18 posts of promotion quota---No distinction existed in the Rules so far as the qualification of master degree for promotion to BPS-18 was concerned except that the condition of second division was relaxed for a limited class of SS Teachers, who were in service prior to the enforcement of rules in question---Purpose of such relaxation was to protect their rights of promotion and most probably reason for exclusion of strict application of condition of second division Master Degree for such category of SS Teachers was that in the old promotion policy, there was no such condition of second division M.A./M.Sc. degree for promotion to BPS-18 for Headmaster/Deputy District Education Officer---Placing a different construction on the Rules, would amount to deprive such limited class of SS Teachers from their legitimate right of promotion---Civil servant was eligible for promotion to BPS-18 under Punjab Education Department (Schools Education) Recruitment Rules, 1987---Supreme Court set aside the judgment passed by Service Tribunal and directed the authorities to consider the civil servant for promotion for the post of Headmaster/Deputy District Education Officer BPS-18, as per his entitlement in accordance with law---Appeal was allowed.

Amir Alam Khan, Advocate Supreme Court with Mahmood A. Qureshi, Advocate-on-Record for Appellant (in C.A. No.2128 of 2004).

Syed Sajjad Hussain Shah, A.A.-G. Punjab for Respondents.

Syed Sajjad Hussain Shah, A.A.-G., Punjab for Petitioners (in C.P. No.1178/L of 2004 and C.P. No.1179/L of 2004).

Respondent in person.

A.H. Masood, Advocate-on-Record for Respondent.

Date of hearing: 13th October, 2005.

2006 S C M R 249

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Raja Fayyaz Ahmed, JJ

MUHAMMAD HANIF and another----Petitioners

Versus

THE STATE----Respondent

Jail Petition No.283 of 2002, decided on 11th October, 2005.

(On appeal from the judgment, dated 9-5-2002 of the Lahore High Court, Lahore passed in Criminal Appeals Nos.195/J, 997, 998 of 2000 and Murder Reference No.46/T of 2001).

Penal Code (XLV of 1860)---

----Ss. 302(b)/34 & 394/34---Constitution of Pakistan (1973), Art.185(3)---No inordinate delay requiring explanation from the prosecution had occurred in the registration of the case---Defence evidence had been disbelieved by the Trial Court and the High Court for cogent and plausible reasons---Courts below had independently scrutinized the entire evidence in depth without misconstruing, misappreciating or misreading any part thereof---Dying declaration of the deceased had withstood the consistent and well-settled principles set out by the superior Courts for believing or disbelieving such statement, which had left no chance of mistake on the part of the dying man in identifying his assailants and the same was free from being prompted and tipped from any outside quarter---Said dying declaration was also consistent with the evidence and circumstances of the case and had been duly proved on record---Medical evidence and the circumstances of the case had further corroborated the dying statement, which had become a substantive evidence against the accused and the defence had failed to discredit the same---Leave to appeal was declined to accused in circumstances.

Sardar M. Siddique Khan, Advocate Supreme Court for Petitioners.

Nemo for the State.

Date of hearing: 11th October, 2005.

2006 S C M R 259

[Supreme Court of Pakistan]

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

Mst. ATTA ELAHI through Special Attorney----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MUZAFFARGARH and 4 others----Respondents

Civil Petition No.883 of 2004, decided on 28th November, 2005.

(On appeal from the judgment, dated 23-12-2003 passed by the Lahore High Court, Multan Bench, Multan in Writ Petition No.216/PR of 1996).

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

----S. 35(2)---Constitution of Pakistan (1973), Art. 185(3)---Right of pre­emption---Non-mentioning of Talb-i-Ishhad in the plaint---Effect---Time ­barred petition for leave to appeal---Courts below declined to revive suit of pre-emptor which was dismissed for non-performance of required Talb---petition for leave to appeal was time-barred by 38 days--Plea raised by pre-emptor for condonation of delay was that the time was lost in obtaining copies of Civil Court record-Validity-High Court rightly refused to revive the suit for the reason that facility of proving Talb-i-Ishhad under S.35(2) of Punjab Pre-emption Act, 1991, was not available due to being a question of fact, having not been alleged in the plaint---Plea raised by pre-emptor for condonation of delay was not tenable as the period which was not computed under law was the one spent in obtaining copies of impugned judgment or order and not for any other copies that the petitioner might require---Delay was not condoned by Supreme Court---Leave to appeal was refused.

Kamal Shah's case PLD 1986 SC 360 and Haji Rana Muhammad Shabbir Ahmed Khan's case PLD 1994 SC 1 ref.

Pir Muhammad Asif Rafi, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 28th November, 2005.

2006 S C M R 261

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

KHURSHID AHMED----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.262 of 2003, decided on 8th November, 2005.

(On appeal from the judgment, dated 28-4-2003 of the Lahore High Court, Multan Bench, Multan passed in Criminal Appeal No.176 of 1995).

Penal Code (XLV of 1860)---

----Ss. 302(b) & 324---Constitution of Pakistan (1973), Art.185(3)---Accused from the stage of framing of the charge had all along admitted to have killed seven persons and seriously injured two prosecution witnesses due to "Ghairat" as the deceased used to run a brothel in their house where his wife was also residing who was not allowed to go with him---Accused in order to substantiate the said plea had neither examined himself on oath nor produced any evidence in proof thereof---Ocular testimony of the injured witnesses was fully corroborated by motive, medical evidence, evidence of recovery of the rifle and its matching with the crime-empties recovered from the place of occurrence---Cruel, gruesome and brutal manner in which the accused had acted, had disentitled him to any leniency---Impugned judgment suffering from no illegality or irregularity did not warrant any interference by Supreme Court---Leave to appeal was declined to accused in circumstances.

Sheikh Muhammad Saleem, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 8th November, 2005.

2006 S C M R 265

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and Hamid Ali Mirza, J

BOARD OF GOVERNORS, AREA STUDY CENTRE and another----Petitioners

Versus

Ms. FARAH ZAHRA----Respondent

Civil Petition No.1662 of 2005, decided on 18th October, 2005.

(On appeal against the judgment, dated 5-4-2005 and 13-7-2004 passed by Lahore High Court, Rawalpindi Bench in I.C.A. No.177 of 2004 and Writ Petition No.45 of 2004 respectively).

Centres of Excellence Act (XXIV of 1974)---

----S. 10(1)(o)---Centres of Excellence Employees (Service, Appointment, Promotion and Transfer) Rules, 1989---Constitution of Pakistan (1973), Art.185 (3)---Appointment for the post of Assistant Professor---Period of experience, calculation of---Selection Board recommended appointment of respondent for the post in question but Board of Governors did not find her eligible for the post---High Court in exercise of constitutional jurisdiction allowed the petition filed by respondent and directed the authorities to issue her appointment letter---Validity---Leave to appeal was granted by Supreme Court to consider; whether High Court in exercise of jurisdiction under Art.199 of the Constitution could issue writ of mandamus directing petitioner to appoint respondent as Assistant Professor; whether High Court in exercise of writ jurisdiction could substitute the findings of Board of Governors holding that respondent had no four years experience in the relevant field in National or International Organization; what should have been the mode to determine whether the experience possessed by respondent could be equated to the experience of four years or above, to make her eligible for the appointment against the post of Assistant Professor; whether High Court had an obligation in writ jurisdiction to decide factual controversy between the parties with regard to four years experience of respondent in the relevant field in National or International Organization; whether relief in a writ jurisdiction could have been denied to. respondent for technical reasons; whether petition had been filed without authorization of Board of Governors; and whether Higher Education Commission in exercise of the powers under S.10(1)(o) of Centres of Excellence Act, 1974, could not calculate the experience of four years of the respondent in National or International Organization to make her qualified for appointment against the post of Assistant Professor.

State of Uttar Pradesh and others v. Dr. Vijay Anand Maharaj AIR 1963 SC 946; Ramesh and another v. Gendalal Motilal Patni and others AIR 1966 SC 1445; Udai Bhan Singh and others v. The Board of Revenue, U.P. Allahabad and others AIR 1974 All. 202; Bishambhar and another v. IIIrd Additional District Judge, Azamgarh and others AIR 1992 All. 178; Ghulam Jillani v. Government of the Punjab and another 2001 PLC (C.S.) 157; Wazir Khan v. Government of N.-W.F.P. through Secretary Irrigation, Peshawar and 4 others 2002 PLC (C.S.) 876; Dalpat Abasaheb Solunke and others v. B.S. Mahajan and others Civil Appeal No.3507-10 of 1989; Berhampur University and another v. Dr. Sailabala Padi AIR 1997 SC 2257; Malik Asad All and others v. Federation of Pakistan through Secretary Law, Justice and Parliament Affairs; Islamabad and others PLD 1998 SC 161; Government of Sindh through Secretary, Home Department and others v. Abdul Jabbar and others 2004 SCMR 639; Government of Punjab through Secretary, (Services), Services General Administration and Information Department and another v. Muhammad Saleem PLD 1995 SC 396; Michael Supperstone QC; James Goudie QC Judicial Remedies in Public Law by Clive Lewis and Administrative Law by Sir William Wade ref.

Makhdoom Ali Khan, Attorney-General for Pakistan.

Gul Zarin Kiani, Advocate Supreme Court, M.S. Khattak, Advocate-on-Record and Dr. Amjad Islam, Director Quaid-e-Azam University, Islamabad for Petitioners.

Respondent in person along with Waseem Sajjad, Senior Advocate Supreme Court.

Date of hearing: 18th October, 2005.

2006 S C M R 276

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Ch. Ijaz Ahmad, JJ

Col. SHAH SADIQ----Petitioner

Versus

MUHAMMAD ASHIQ and others----Respondents

C.P. No.1206/L of 2005, decided on 15th December, 2005.

(On appeal from the order, dated 11-4-2005 passed by Lahore High Court in Writ Petition No.2278 of 2005).

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court has no jurisdiction to resolve the disputed question of fact in constitutional jurisdiction.

Muhammad Saeed Azhar v. Martial Law Administrator Punjab and others 1979 SCMR 484; Umar Hayat Khan v. Inayatullah Butt and others 1994 SCMR 572; Mst. Kaniz Fatima through Legal Heirs v. Muhammad Salim 2001 SCMR 1493; Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Division Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415 and Wazir Ali Soomro v. Water and Power Development Authority and others 2005 SCMR 37 ref.

(b) Constitution of Pakistan (1173)---

---Art. 199---Criminal Procedure Code (V of 1898), Ss.173, 265-K, 249-A, 551, 561-A, 190 & 63---Police Rules, 1934, R.24.7---Penal Code (XLV of 1860), Ss.420, 468 & 471---Quashing of F.I.R.---Required circumstance---Constitutional jurisdiction of High Court---Scope---If, prima facie, an offence had been committed, ordinary course of trial before the Court should not be allowed to be deflected by resorting to constitutional jurisdiction of High Court---High Court had no jurisdiction to quash F.I.R. by appreciation of documents produced by the parties without providing chance to cross-examine or confronting the documents in question---High Court would err in law to short circuit the normal procedure of law as provided under Criminal Procedure Code, 1898---Party seeking the quashing of F.I.R. had alternative remedy to raise objection at the time of framing the charge against them by the Trial Court or at the time of final disposal of the trial after recording the evidence---Said party had more than one alternative remedies before the Trial Court under Ss.265-K & 249-A, Cr.P.C. or to approach the concerned Magistrate for cancellation of the case under the provisions of Cr.P.C.---Alternative remedies available to the party enlisted---Principles.

Muhammad Saeed Azhar v. martial Law Administrator Punjab and others 1979 SCMR 484; Umar Hayat Khan v. Inayatullah Butt and others 1994 SCMR 572; Mst. Kaniz Fatima through Legal Heirs v. Muhammad Salim 2001 SCMR 1493; Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Division Forest Officer v. Ghulam Nabi and 3 others PLD 2001 SC 415; Wazir Ali Soomro v. Water and Power Development Authority and others 2005 SCMR 37; A. Habib Ahmad v. M.K.G. Scott Christian PLD 1992 SC 353; Ghulam Muhammad v. Muzammal Khan and 3 others PLD 1967 SC 317; Mohsin Ali and another v. The State 1992 SCMR 229; Abdul Rehman v. Muhammad Hayat Khan and others 1980 SCMR 311; Marghoob Alam and another v. Shamas Din and another 1986 SCMR 303; Sheikh Muhammad Yameen v. The State 1973 SCMR 622; Bashir Ahmad v. Zafar-ul-Islaam and others PLD 2004 SC 298; Kh. Nazir Ahmad's case AIR 1945 PC p.18; Shahnaz Begum v. The Honourable Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677; Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2.others 1994 SCMR 2142; Kh. Fazal Karim's case PLD 1976 SC 461; Ahmad Saeed v. The State and another 1996 SCMR 186; Bahadur and another v. The State and another PLD 1985 SC 62; Zia-ur-Rehman's case PLD 1973. SC 49 and Mian Nawaz Sharif's case PLD 1973 SC 473 ref.

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

----Art. 199---Constitutional jurisdiction of High Court---Scope---Exercise of the jurisdiction of High Court under Art.19) of the Constitution though is discretionary with the High Court but such powers must be exercised in good faith, fairly, justly and reasonably having regard to all relevant circumstances.

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

----Preamble---Trichotomy of powers which is delicately balanced in the Constitution, cannot be disturbed as it grants powers to each organ to decide the matters in its allotted sphere.

Sh. Naveed Sharyyar, Advocate Supreme Court with Haji M. Rafi Siddiqui, Advocate-on-Record for Petitioner.

Ch. Inayat Ullah, Advocate Supreme Court with S. Fayyas Ahmad Sherazi, Advocate-on-Record for Respondents Nos. 1 and 2.

Dr. Khalid Ranjha, Advocate Supreme Court with M.A. Qureshi, Advocate-on-Record and Mian Abdul Quddus, Advocate Supreme Court for Respondent No.3.

Rizwan Ullah Khan, Investigating Officer, Khalid Saeed, S.H.O. Police Station North Cantt. Lahore, Shaukat Ali, D.D.O.R. Cantt. Lahore and Akhtar Ali Kureshi, A.A.-G. for the State.

Date of hearing: 15th December, 2005.

2006 S C M R 285

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Nasir-ul-Mulk, JJ

MUHAMMAD ZAHID IQBAL and others----Petitioners

Versus

D.E.O., MARDAN and others----Respondents

Civil Petitions Nos.350-P to 356-P, 364-P, 377-P to 379-P, 389-P to 398-P, 406-P to 408-P, 435-P to 468-P, 473-P to 477-P, 492-P to 495-P, 501-P, 506-P, 541-P,. 560-P, 597-P, 598-P, 413-P, 478-P to 484-P, 496-P to 500-P, 504-P, 507-P to 509-P, 532-P, 540-P, 543-P to 545-P, 561-P and 562-P, 603-P to 605-P, 510-P to 512-P; 542-P, 547-P to 549-P, 569-P to 572-P, 576-P to 579-P, 590-P to 600-P, 550-P to 557-P, 582-P to 584-P and 589-P of 2005, decided on 26th October, 2005.

(On appeal from the judgment, dated 11-6-2005 of the N.-W.F.P. Service Tribunal, Peshawar passed in Appeals Nos.2054, 2001, 2353, 2182, 2605, 2037, 2203, 561, 2347, 2346, 2352 of 2000, 258 of 2003, 116 of 2002, 15, 16, 17, 1184, 1186, 1187 of 2003; 1237 of 2002, 158, 298 of 2004, 2036, 2193, 2889 of 2000, 935, 944, 1013 of 2001, 401, 539, 620, 668, 707, 807, 645, 808, 809, 810, to 816, 860, 861, 870, 908, 915, 1027, 1126, 1166 of 2002, 10, 281, 282, 634 of 2003, 236 of 2004, 1020 of 2001, 1021 of 2001, 634, 1237 of 2002, 157 of 2003, 907 of 2000, 606 of 2002, 246, 1163 of 2003, 260 of 2001, 686, 714 of 2002, 244 of 2003, 344 of 2005, 344 of 2004, 658 of 2002, 505 of 2003, dated 7-7-2005, passed in Appeal No.387 of 2005, dated 4-7-2005 in Appeals Nos.361 of 2003., 638, 644, 700 of 2002, 229 of 2003, 32, 341 of 2004, 1011 of 2001, 2232 of 2000, 7, 6 of 2003, 208, 552 of 2004, 702 of 2002, 768, 917, 1282 of 2003, 634, 1024, 680 of 2003, 645, 679 of 2004, 916, 13 of 2003, dated 4-8-2005 in Appeals, Nos.869 of 2002, 569, 1002 of 2004, 737 of 2002, 345, 1346 of 2003, 870 of 2004, 401, 567, 568, 510, 50, 242, 569, 1347, 504, 604, 507, 618 of 2003, 859 of 2004, 524, 526, 920 of 2003, dated 14-4-2005 passed in Appeals Nos.594, 602, 598, 606, 610, 623, 667, 1079 of 1997, dated 10-9-2005 in Appeals Nos.800 of 2004, 254, 260 of 2005 and 817 of 2004, respectively).

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

----S. 4---Constitution of Pakistan (1973), Art. 212 (3)---Termination of service---Illegal appointments---Lack of basic eligibility---Illegality committed by department---Grievance of petitioners was that their services were terminated on the allegation of illegal and political appointments but the Service Tribunal dismissed their appeals---Plea raised by petitioners was that if once illegality was committed by department itself, it could not turn around and reverse its own order taking benefit of its own illegality---Validity---Once the appointees were qualified to be appointed, their services could not subsequently be terminated on the basis of lapses and irregularities committed by department itself---Such laxities and irregularities committed by Government could be ignored by the Courts only when the appointees lacked basic eligibilities, otherwise not---Petitioners could not draw any benefit' from such view for the reason that at the time of their initial appointments, they lacked basic qualifications, requirements and eligibilities---Supreme Court declined to interfere in the judgment passed by Service Tribunal---Leave to appeal was refused.

Hameed Akhtar Niazi's case 1996 SCMR 1185 ref.

Secretary to Government of N.-W.F.P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan 1996 SCMR 413; Syed Sikandar Ali Shah's case 2002 SCMR 1124; Sui Southern Gas Company Limited PLD 2003 SC 724; WAPDA v. Abbas Ali Malano and another 2004 SCMR 630; Collector of Customs and Central Excise, Peshawar and 2 others v. Abdul Waheed and 7 others 2004 SCMR 303 and Muhammad Shoaib's case 2005 SCMR 85 rel.

Dr. Hussain Khan, Advocate-on-Record for Petitioners (in C.Ps. Nos.350-P, 352 to 356, 389, 397-P, 406 to 408-P of 2005).

Fateh Muhammad Khan, Advocate-on-Record for Petitioners (in C.Ps. Nos.390-P to 396, 413 and 544-P of 2005).

Khushdil Khan Mohmand, Advocate Supreme Court with Mir Adam Khan, Advocate-on-Record for Petitioners (in C.Ps. Nos.435-P to 468, 473 to 477, 492 to 495, 502, 503, 505, 506, 541, 560, 597, 478 to 484, 496 to 500, 504, 507 to 509, 532, 540, 544, 545, 561, 562, 510 to 512, 542, 547 to 549, 569 to 572, 576 to 579, 590, 591, 598 to 600, 582 to 584-P of 2005).

Mir Adam Khan, Advocate-on-Record for Petitioners (in C.Ps. Nos.550-P to 577 and 589-P of 2005).

Petitioners in person (in C.Ps. Nos.351-P, 377 to 379, 501, 398, 543, 603 to 605-P of 2005).

Nemo for Petitioner (in C.P. No.364-P of 2005).

Muhammad Younas Tanoli, Advocate-General, N.-W.F.P., Imtiaz Ali, Advocate Supreme Court and Hafiz Aman, Advocate Supreme Court for Respondents (in all cases).

Date of hearing: 26th October, 2005.

2006 S C M R 290

[Supreme Court of Pakistan]

Present: Javed Iqbal and Raja Fayyaz Ahmed, JJ

WALA KHAN----Petitioner

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary, and 3 others----Respondents

Civil Petition No.87-Q of 2005, decided on 27th October, 2005.

(On appeal from the judgment, dated 27-6-2005 of High Court of Balochistan, Quetta passed in Constitution Petition No.523 of 2000).

Constitution of Pakistan (1973)---

----Art. 199---Balochistan Model Residential Secondary School Ordinance (XVII of 1983), S.10---Writ of mandamus---Nature and essentials---Mandamus is a high prerogative writ of a most extensive remedial nature and is, in form of a command issuing from the High Court directing any person, corporation or subordinate Court requiring it to do some particular thing specified therein which pertains to him or his office and is in the nature of public duty---Purpose of mandamus is to do justice, in all cases where there is a specified legal remedy for enforcing such right---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 which cannot be enforced by any other adequate legal remedy---Where the essentials for issuing the writ in the nature of mandamus are lacking, mandamus could not be issued---Provincial Secretary Education, in the present case, had not been described as original, appellate or revisional authority or an authority competent and empowered to hear, decide and to issue direction to the Principal of the college on any representation, appeal or review petition of a college employee nor under scheme of Balochistan Model Residential Secondary School Ordinance, 1983, Regulations framed by the Board of Governors of the College, he could issue such a direction---Direction so issued by the Provincial Secretary Education did not result into creating any right in favour of the petitioner enforceable through writ of mandamus.

Basu's Commentary on Constitution of India 6th Edn. Vol.1 quoted.

Muhammad Aslam Chisti, Senior Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 27th October, 2005.

2006 S C M R 299

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, Mian Shakirullah Jan and Raja Fayyaz Ahmed, JJ

KHAIR MUHAMMAD----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.228 of 2004, decided on 22nd November, 2005.

(On appeal from the judgment, dated 19-5-2004 of High Court of Balochistan, Quetta passed in Criminal Appeal No.298 of 2002).

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

----S. 9(c)---Constitution of Pakistan (1973), Art.185(3)---Accused had led to the recovery of 61 Kgs. "Charas" from the secret parts of the Pajero Jeep about which he alone had the exclusive knowledge---Samples sent to the Chemical Examiner were confirmed by him to be "Charas"--No animosity of any sort with the police was shown by the accused for his false implication or substitution in the case---Such a huge quantity of contraband could not be foisted without any valid reason which was missing in the case---Prosecution evidence was truthful and convincing--- Judgments of the Courts below did not suffer from any illegality, misreading or non-appreciation of evidence---Leave to appeal was refused to accused in circumstances.

Hafizur Rehman, Advocate Supreme Court for Petitioner.

Raja Abdul Ghafoor, Advocate Supreme Court for the State.

Date of hearing: 22nd November, 2005.

2006 SC MR 301

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Muhammad Nawaz Abbasi, JJ

MUHAMMAD ASLAM JAVED----Petitioner

versus

UNITED BANK LTD. through Circle Executive----Respondent

Civil Petition No.1737 of 2005, decided on 14th December, 2005.

(On appeal from the judgment dated 8-4-2005 of the Lahore High Court, Lahore passed in Labour Appeal No.239 of 2004).

Industrial Relations Ordinance (XCI of 2002)---

----S. 48---Industrial Relations Ordinance (XXIII of 1969), S.25-A---Service Tribunals Act (LXX of 1973), Ss.2-A & 6---Appeal before wrong forum---Abated appeal, decision of---Employee of bank was reinstated by Labour Court---Bank filed appeal before Labour Appellate Tribunal but on abolition of Tribunal, appeal was transferred to High Court, which was allowed in favour of bank on 8-4-2005---Plea raised by the employee was that during pendency of appeal before High Court S.2-A was inserted in Service Tribunals Act, 1973, and jurisdiction to hear appeal vested only with Service Tribunal thus all appeals before other forums stood abated---Validity---Remedy provided to parties concerned was available in proviso to S.6(2) of Service Tribunals Act, 1973, which allowed a period of 90 days to a party concerned to file appeal before Service Tribunal---Bank being appellant, did not invoke jurisdiction of Service Tribunal within 90 days and even long thereafter---High Court decided appeal which was never in existence before it and which had abated long ago---No cause was deemed to have been pending before High Court due to the operation of abatement---High Court had neither the jurisdiction to adjudicate upon the matter nor any matter was pending before it---Supreme Court converted petition for leave to appeal into appeal and 'set aside the judgment passed by High Court---Appeal was allowed.

Hafiz S.A. Rehman, Senior Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Petitioner.

Mian Mahmood Saleem, Advocate Supreme Court for Respondent.

Date of hearing: 14th December, 2005.

2006SCMR304

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, Mian Shakirullah Jan and Raja Fayyaz Ahmed, JJ

EHSANU LLAH----Petitioner

versus

THE STATE----Respondent

Jail Petition No.232 of 2004, decided on 22nd November, 2005.

(On appeal from the judgment, dated 8-4-2004 of Lahore High Court, Lahore passed in Criminal Appeal No.289 of 2002).

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

----S. 9(c)---Constitution of Pakistan (1973), Art.185(3)---Prosecution evidence was natural and convincing---Huge quantity of 19 kilograms of opium had been recovered from the house of accused at his pointation, which in ordinary circumstances, could not be planted---Nature of enmity having not been disclosed and proof of false implication having not been produced by the accused, recovery of such a large quantity of opium itself was sufficient to base his conviction on---Failure to examine himself on oath under S.340(2), Cr.P.C. showed that the accused had nothing to say in his defence-Case was not one of misreading, non-reading or misappreciation of evidence-Concurrent findings of the two Courts below did not call for any interference by Supreme Court---Petition was barred by time for 49 days for which no plausible explanation was offered---Leave to appeal was declined to accused on merits as well as on the point of limitation in circumstances.

Tariq Bilal, Advocate Supreme Court for Petitioner.

Mehmood Ahmed Sheikh, Advocate Supreme Court for the State.

Date of hearing: 22nd November, 2005.

2006 SCMR 306

[Supreme Court of Pakistan]

Present: Javed Iqbal and Tassadduq Hussain Jillani, JJ

GHULAM RASOOL through L.Rs.----Appellants

versus

SAADULLAH KHAN and others----Respondents

Civil Appeals Nos.1227 and 1228 of 2000, decided on 13th December, 2005.

(On appeal from the judgment, dated 11-10-1999 of the Peshawar High Court (D.I. Khan) passed in Civil Revisions Nos.60 and 61 of 1998).

Specific Relief Act (I of 1877)---

----S. 42---Declaration of title---Concurrent findings of fact by the Courts below---Plaintiff assailed sale of land owned by his mother and sought cancellation of sale mutations in favour of defendants, being based upon fraud---Trial Court and Appellate Court concurrently dismissed the suit and appeal respectively---High Court, in exercise of revisional jurisdiction, set aside concurrent findings of fact by the Courts below, and decreed the suit in favour of plaintiff---Validity---Claim and role of plaintiff, who remained Revenue Officer of the area, required deeper and vigilant scrutiny in the light of entire record and evidence which could not be done by High Court---Observations and findings of fact recorded by Appellate Court could not be discarded without any reasoning which must be given in support of conclusion arrived at by High Court---Claim of plaintiff was not to be visualized in isolation but had to be examined in conjunction with the whole mass of evidence on record in which eventually comprehensive spectrum of the picture in its true perspective would be amply exhibited on the screen---Unless and until it was decided as to how much land was sold by mother of plaintiff, the controversy could not be set at rest---High Court had not examined as to in order to avoid multiplicity of proceedings to shorten litigation and to do complete justice, moulded relief could be granted as was done by Courts below---Judgment and decree passed by High Court was .set aside and case was remanded to High Court for deciding revision petition afresh---Appeal was allowed.

Madan Gopal v. Maran Bepari PLD 1969 SC 617; Choori v. Ghulam Hussain 1978 SCMR 404; Muhammad Hussain v. Abbas Khan 1981 SCMR 1233; U. Rai Gyaw Thoo & Co. v. Ma. Hla U Pru AIR 1940 Ran. 126 and Amina Begum v. Ghulam Dastgir PLD 1978 SC 220 rel.

Abdul Aziz Kundi, Advocate-on-Record for Appellants.

Haji Muhammad Zahir Shah, Advocate-on-Record for Respondents Nos.1, 4 and 5.

Respondents Nos.2 and 3: Ex parte.

Date of hearing: 27th September, 2005.

2006 SC MR 310

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Raja Fayyaz Ahmed, JJ

MUHAMMAD YAQOOB----Petitioner

versus

DISTRICT POLICE OFFICER, DISTRICT SAHIWAL and 2 others----Respondents

Civil Petition No.3027 of 2003, decided on 10th November, 2005.

(On appeal from the judgment, dated 2-9-2003 of the Federal Service Tribunal, Islamabad passed in Appeal No.1939 of 2003).

(a) Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)---

----Ss. 3 & 10---Punjab Police (Efficiency and Discipline) Rules, 1975, R.12---Constitution of Pakistan (1973), Art.212 (3)---Compulsory retirement from service---Second revision before departmental authorities---Maintainability---Civil servant was compulsorily retired from service on the charges of gross negligence and misconduct---Civil servant preferred departmental appeal against the penalty imposed by authorities, which was also dismissed---Instead of assailing order of departmental authorities before Service Tribunal, civil servant preferred revision under R.12 of Punjab Police (Efficiency and Discipline) Rules, 1975, which was also rejected---Civil servant filed appeal before Service Tribunal, which appeal was dismissed being time-barred---Plea raised by civil servant was that his appeal before Service Tribunal was within limitation as the same was filed after rejection of revision under R.12 of Punjab Police (Efficiency and Discipline) Rules, 1975---Validity---Civil servant could not seek shelter behind R.12 of Punjab Police (Efficiency and Discipline) Rules, 1975, and could not take its benefit for the reason that no such right was given in special law having overriding effect---Revision contemplated by Punjab Police (Efficiency and Discipline) Rules, 1975, though had given right to Inspector General of Police to revise the order of departmental authority in the circumstances given in the rule itself but the rule did not vest any right in accused civil servant to file a revision as a matter of right---Finding of Service Tribunal was perfectly in accord with the spirit of Punjab Police (Efficiency and Discipline) Rules, 1975, as well as with the provisions of Removal from Service (Special Powers) Ordinance, 2000---Supreme Court declined to interfere in the judgment passed by Service Tribunal---Leave to appeal was refused.

(b) Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)---

----S. 10---Constitution of Pakistan (1973), Art. 212 (3)---Appeal before Service Tribunal---Limitation---Computation---Penalty of compulsory retirement was imposed on civil servant, under Removal from Service (Special Powers) Ordinance, 2000---Departmental appeal was filed on 21-12-2002, and appeal before Service Tribunal was filed on 21-8-2003---Service Tribunal dismissed the appeal being barred by limitation---Validity---Civil servant, under provisio to S.10 of Removal from Service (Special Powers) Ordinance, 2000, was to wait only for a period of sixty days whereafter he was to file appeal within thirty days---Civil servant had only a period of ninety days commencing from the filing of appeal on 21-12-2002, as the appellate authority failed to decide his appeal within sixty days---Civil servant was in fact supposed to have filed appeal before Service Tribunal on 21-3-2003, which, instead was, filed on 21-8-2003---Delay in filing of appeal before Service Tribunal was of five months---Service Tribunal rightly refused to condone the delay and dismissed the appeal---Leave to appeal was refused.

Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Syed Sajjad Hussain Shah Assistant Advocate-General for Respondents.

Date of hearing: 10th November, 2005.

2006SCMR313

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, Mian Shakirullah Jan and Raja Fayyaz Ahmed, JJ

ISRAR AHMED----Petitioner

versus

THE STATE----Respondent

Jail Petition No.162 of 2004, decided on 15th November, 2005.

(On appeal from the judgment, dated 12-1-2004 of this Court passed by Lahore High Court, Lahore, passed in Criminal Appeal No.1088 of 2002).

Penal Code (XLV of 1860)---

----S. 302(c)---Constitution of Pakistan (1973), Art.185(3)---Accused in his statement recorded under S.342, Cr.P.C. had admitted to have committed the murder of the deceased inside his house while causing injuries to the brother-in-law of the deceased---Nothing could be pointed out from the record to indicate that the accused had fired in the right of his self-defence---Accused even did not produce in his defence his mother to substantiate his stand that the injured witness had come to outrage her modesty which prompted him to fire at him---Prosecution case seemed to be more probable and true than the defence plea---Petition was barred by 63 days, for which no plausible explanation was offered---Petition for leave to appeal was dismissed both on merits and being barred by time in circumstances.

Fazal Karim Butt, Advocate Supreme Court for Petitioner.

M. Aslam Malik, Advocate Supreme Court for the State.

Date of hearing: 15th November, 2005.

2006SCMR315

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Mian Shakirullah Jan

and Nasir-ul-Mulk, JJ

MIR AKBAR----Petitioner

versus

SHER BAHADUR and others----Respondents

Civil Petition No.493-P of 2004, decided on 1st December, 2005.

(On appeal from the judgment, dated 12-5-2004 passed by the Peshawar High Court, Peshawar in Civil Revision No.40 of 1997).

Per Nasir-ul-Mulk, J.; Sardar Muhammad Raza Khan, J. agreeing; Mian Shakirullah Jan, contra----

Specific Relief Act (I of 1877)---

----S. 8---Civil Procedure Code (V of 1908), O.VI, R.17 & O.VIII, R.1---Constitution of Pakistan (1973), Art.185(3)---Recovery of possession---Written statement, amendment of---Effect---Plaintiffs sought possession of suit property on the basis of registered sale-deed executed in the year, 1929, while defendant claimed to be the owner on the basis of unregistered sale-deed executed in favour of his predecessor-in­-interest, in the year, 1902---Suit was concurrently dismissed by Trial Court and Appellate Court but High Court in exercise of revisional jurisdiction decreed the suit filed by plaintiffs on the ground that in first written statement the defendant raised the plea of adverse possession while in amended statement he claimed to be the owner on the basis of unregistered sale-deed executed in favour of his predecessor-in-interest---Validity---Genuineness of the deed of the year, 1902 was open to doubt as in the first written statement filed by defendant plea of adverse possession was taken and neither the sale-deed was mentioned nor defendant pleaded that he had become owner by purchase---Defendant had filed amended written statement six months later in which for the first time he claimed that his forefather had purchased the house through unregistered deed in the year, 1902---Such plea appeared to be an afterthought, because had the property been purchased by the predecessor-in-interest of defendant, he should at least have mentioned so in his first written statement even if he had not been in possession of the deed at the time---Defendant in his first statement had taken the plea of adverse possession only---Witnesses mentioned in the deed of year, 1902 could not have been alive at the time of recording of evidence, however no other supporting evidence was produced to prove the document---Supreme Court did not believe that the deed of year, 1902 pressed into service by defendant was genuine, and even if so, could not have precedence over the registered deed of year, 1929---Plaintiffs and not the defendant were the owners of the suit house---Supreme Court declined to interfere in the judgment and decree passed by High Court---Leave to appeal was refused.

Mushtaq Ahmad v. The State 2004 SCMR 530 ref.

Per Mian Shakirullah Jan, J. (Minority view)---

Civil Procedure Code (V of 1908)---

----O. VI, R.17 & O.VIII, R.1---Amended written statement---Effect---When once amended written statement is filed, with permission of Court, and issues are re-examined and the deficiency in framing of issues is made up by framing additional issue, in the light of amended written statement and the permission or grant of leave is not challenged, the same then attains finality---Previous averments made in written statement, which is superseded by subsequent written statement, and even when no question was asked from defendant about the necessity or ground of second written statement, cannot be taken a ground for knocking out the defendant.

Document---

----Appeal to Supreme Court---Scope---Validity of document---Determination---Jurisdiction of Supreme Court---Trial Court and lower Appellate Court found document in question as a genuine document while High Court did not interfere in such finding---Effect---Question of validity of such document could not be raised before Supreme Court.

Ghulam Muhammad and others v. Malik Abdul Qadeer Khan and others PLD 1983 SC 68 rel.

Specific Relief Act (I of 1877)---

----S. 8---Registration Act (XVI of 1908), S.17---Transfer of Property Act (IV of 1882), S.53-A---Constitution of Pakistan (1973), Art. 185(3)-Recovery of possession---Preference of registered document over unregistered document---Protection of part performance---Plaintiffs sought possession of suit property on the basis of registered sale-deed executed in the year, 1929, while defendant claimed to be the owner in possession on the basis of unregistered sale-deed executed in favour of his predecessor-in-interest, in the year, 1902---Suit was concurrently dismissed by Trial Court and Appellate Court but High Court in exercise of revisional jurisdiction decreed the suit filed by plaintiffs---Validity--- View of High Court about preference of registered deed over unregistered deed, when the possession was held to be that of the defendant and he was also held by High Court to be entitled to the improvements and it was plaintiffs who were enforcing their right against defendant, was not in consonance with the judgment of Supreme Court in case titled Ali Rehman v. Fazal Mehmud and 8 others, reported as 2003 SCMR 327---Most important ingredient of S.53-A, of Transfer of Property Act, 1882, was transfer of possession in favour of transferee--- If such pronounced and tangible act of transfer of physical possession was in favour of transferee, the equity must favour him and he be allowed to defend his possession even on the basis of unregistered deed---In order to examine the question prevailed with High Court in the light of the judgment of Supreme Court, and also to examine the question so raised, in the light of record to be made available at the time of hearing of appeal, it was a fit case for grant of leave.

Ghulam Muhammad and others v. Malik Abdul Qadeer Khan and others PLD 1983 SC 68 and Ali Rehman v. Fazal Mehmud and 8 others 2003 SCMR 327 ref.

Haji Muhammad Zahir Shah, Advocate Supreme Court for Petitioner.

Jan Muhammad Khan, Advocate-on-Record for Respondent.

Date of hearing: 20th April, 2005.

2006 SCMR 326

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and Hamid Ali Mirza, J

FEDERATION OF PAKISTAN through Secretary Establishment Division and others----Appellants

versus

MUHAMMAD TAYYAB----Respondent

Civil Appeal No.1018 of 2005, decided on 7th December, 2005.

(On appeal from the judgment, dated 17-6-2001 in Writ Petition No.16600 of 2003 passed by the Lahore High Court, Lahore).

(a) Competitive Examination Rules, 2002---

----Para. 11---ESTACODE, 1989 Edition, serial Nos.28 & 29---Constitution of Pakistan (1973), Art.27---Competitive examination---Reducing of quota---Respondent appeared in competitive examination against reserved seat for Azad Jammu and Kashmir and stood second on the merit for the reserved seats---Federal Public Service Commission reduced the number of reserved seats to one, for the reason that a seat in advance had been allocated to a candidate who appeared in the examination in the year, 1994-95---Respondent, who otherwise was qualified for appointment on merits, was deprived of his right to be appointed---High Court in exercise of Constitutional jurisdiction, set aside the decision of the authorities---Plea raised by the authorities was that Chairman Federal Public Service Commission was empowered to reduce number of seats under Para. No.11 of Competitive Examination Rules, 2002---Validity---Authorities had a right under Para. No.11 of Competitive Examination Rules, 2002, to fill smaller or larger number of vacancies than announced but the Rule did not authorize them to reduce the quota/ratio allocated to Azad Jammu and Kashmir region and further it did not authorize the authorities to allocate seat in advance to a candidate who had appeared in year, 1994-95 a seat which would fall vacant in the year, 2002 after a period of six years when it had not been shown by the authorities that in the year 1994-95 fraction carried over in the year, 1995 was more than half, so as to give that candidate an extra seat to be subtracted from the same quota in the ensuing year---Ensuing year would not amount that it could be subtracted in the year, 2002 but prior to it there was six years' period wherein the seat could have been subtracted---Authorities had not shown any reasonable cause or justification in that respect consequently the action of reduction of ratio/ quota in the year, 2002 which hit the respondent's career harsh, was a mala fide action on their part---Action of reducing the seat by authorities was a mala fide act not warranted by law and provisions of the Constitution---Supreme Court did not find any factual and legal infirmity with the judgment passed by High Court, requiring any interference in Constitutional jurisdiction---Appeal was dismissed.

Moosa Wazir and 2 others v. N.-W.F.P. Public Service Commission 1993 SCMR 1124 and M. Saeed Sehgal v. Kazi Khurshid Hassan Proprietor, India Film Bureau PLD 1964 SC 598 ref.

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

---Art. 27---Competitive Examination Rules, 2002, Para.11---ESTACODE, 1989 Edition, serial No. 29---Service of Pakistan---Safeguards against discrimination---Reducing of quota---Validity---Rules as well as Sr. No.29 of ESTACODE Edition, 1989, cannot override the provisions of Art. 27 of the Constitution, where safeguards against discrimination in Service of Pakistan have been provided to the citizens-Quota reserved, cannot be allowed to be reduced by reducing number of posts reserved for persons belonging to any class of area for the year in which competitive examination was to be held.

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

---Art. 185---Appeal to Supreme Court---Scope---New plea---Raising of new plea---Effect---Plea not agitated, pleaded or argued before High Court, cannot be agitated before Supreme Court.

Sub. (Retd.) Muhammad Ashraf v. District Collector, Jhelum and others PLD 2002 SC 706; Juma Khan and others v. Mst. Bibi Zenaba and others PLD 2002 SC 823 and United Bank Ltd. v. Pakistan Industrial Credit and Investment Corporation Ltd. and another PLD 2002 SC 1100 rel.

Nasir Saeed Shaikh, D.A.-G., Masood Khan, Dy. Secretary, Estt. Gen. (Retd.) Jamshed Gulzar Kiyani, Chairman, F.P.S.C. for Appellants.

Respondent in person.

Date of hearing: 20th October, 2005.

2006 SC MR 338

[Shariat Appellate Jurisdiction]

Present: Justice Abdul Hameed Dogar, Chairman, Justices Mian Shakirullah Jan, Raja Fayyaz Ahmed, Dr. Allama Khalid Mahmud and Dr. Rashid Ahmed Jullundhari, Members

MUHAMMAD ASIF and another----Petitioners

versus

THE STATE----Respondent

Criminal Shariat Petition No.24(S) of 2005, decided on 17th November, 2005.

(On appeal from the judgment/order, dated 19-3-2005 of the Federal Shariat Court passed in Criminal Appeal No.280-L of 2003).

Penal Code (XLV of 1860)---

----S. 377---Constitution of Pakistan (1973), Art.203-F(2B)---Victim boy had categorically implicated both the accused with commission of sodomy forcibly with him and his statement was corroborated by the statement of his maternal-uncle to whom he had immediately narrated the facts---Medical evidence had further supported the victim and his sole testimony was sufficient to base conviction---Accused had failed to bring on record any animosity with the complainant for their false implication---No illegality, misreading or non-reading of evidence warranting interference by Supreme Court was pointed out by the defence counsel in the case---Leave to appeal was refused to accused in circumstances.

Sh. Zamir Hussain, Advocate Supreme Court for Petitioners.

Nemo for the State.

Date of hearing: 17th November, 2005.

2006 SC MR 340

[Supreme Court of Pakistan]

Present: Javed Iqbal and Hamid Ali Mirza, JJ

MUHAMMAD RAFIQUE and others----Petitioners

versus

SHARAF DIN and others----Respondents

Civil Petition No.1792 of 2005, decided on 24th November, 2005.

(On appeal from the judgment, dated 18-4-2005 in Civil Revision No.844-D of 1987 passed by Lahore High Court, Multan Bench, Multan).

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

---S. 12---Qanun-e-Shahadat (10 of 1984), Arts.117 & 120---Agreement to sell---Onus to prove---Plaintiffs had tiled suit for specific performance on the basis of agreement to sell, therefore, onus heavily lay upon them to prove the agreement---Proof of such agreement would be sine qua non for decreeing the suit.

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

---Arts. 78 & 79---Agreement executed in year 1966---Proof---Procedure---Though Art.79 of Qanun-e-Shahadat, 1984, would not be applicable as the agreement was allegedly executed in year, 1966 but in view of Art. 78 of Qanun-e-Shahadat, 1984, the document of sale agreement allegedly said to have been signed by predecessor-in-interest of defendants was to be proved to be in his handwriting.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Art.129 (e)---Constitution of Pakistan (1973), Art.185 (3)---Specific performance of agreement to sell---Official documents---Presumption of correctness---Verification of title of property---Plaintiffs asserted that their predecessor-in-interest entered into agreement to sell with predecessor-in-interest of defendants with regard to disputed shop and sale-deed was to be executed after issuance of Permanent Transfer Deed but the predecessor-in-interest of defendants, at the time of execution of Permanent Transfer Deed, entered his brother as partner in the suit property---Trial Court dismissed the suit but Appellate Court allowed the appeal and decreed the suit---High Court in exercise of revisional jurisdiction, set aside the judgment and decree passed by Appellate Court and restored that of Trial Court-Plea raised by plaintiffs was that their predecessor-in-interest had satisfied himself by seeing the Provisional Transfer Order which was only in favour of the predecessor-in-interest of defendants---Validity---Buyer should beware of all relevant facts---It was the duty of plaintiffs' predecessor-in-interest to have checked before buying the title of defendants' predecessor-in-interest with regard to having a legal title to sell the disputed property solely---Provisional Transfer Order, even if assumed to have been issued only in the name of defendants' predecessor-in-interest but its copy had not been produced by the plaintiffs' predecessor-in-interest on record to show that it was solely in the name of predecessor-in-interest of defendants---Presumption under law would be that the Permanent Transfer Deed was issued in the names of same persons in whose favour Provisional Transfer Order was issued but such fact of the case had not been attended to by plaintiffs' predecessor-in-interest---Plaintiffs had to bring reliable evidence to prove the fact that on the basis of Provisional Transfer Order their predecessor?-in-interest agreed to purchase suit property from the only Provisional Transfer Order holder---Plaintiffs failed to prove such fact, whereas Permanent Transfer Deed produced indicated that it was issued in favour of both the brothers---Provisional Transfer Order was provisional one and it had not conferred permanent right or title in favour of the person in whose favour it was issued, therefore, the agreement was contingent upon issuance of Permanent Transfer Deed---Witnesses examined by plaintiffs showed their ignorance on material questions as observed by High Court in its judgment which led it to conclude that their testimony was not reliable and did not carry any credence---High Court had rightly arrived at the conclusion that Appellate Court had misread the evidence on record which led to wrong finding---High Court was competent and possessed jurisdiction to reverse such finding of Appellate Court---No legal or factual infirmity was found in the judgment passed by High Court---Leave to appeal was refused.

Mrs. Fakhar-un-Nisa, Advocate Supreme Court for Petitioners.

Sheikh Ziauddin Qamar, Advocate Supreme Court for Respondents.

Date of hearing: 24th November, 2005.

2006 SC MR 348

[Shariat Appellate Jurisdiction]

Present: Justice Abdul Hameed Dogar, Chairman, Justices Mian Shakirullah Jan, Raja Fayyaz Ahmed, Dr. Allama Khalid Mahmud and Dr. Rashid Ahmed Jullundhari, Members

MUHAMMAD ASLAM----Petitioner

versus

SHAKEEL LIAQAT and others----Respondents

Criminal Petitions Nos.38(S) and 39(S) of 2004, decided on 23rd November, 2005.

(On appeal from the judgment, dated 29-9-2004 of the Federal Shariat Court, Islamabad, passed in Criminal Appeals Nos.88/I and 99/I of 2004).

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S. 10(2)---Penal Code (XLV of 1860), S.456---Constitution of Pakistan (1973), Art.203-F(2B)---Leave to appeal against acquittal, refusal of---Complainant had improved his version before the Trial Court which did not seem to be true, as the accused could not continue to commit Zina after they had already been checked and chained by him---Despite both the accused having been apprehended at the spot and semen was detected, but the matching of the same was not done---Prosecution witnesses could not possibly see the actual commission of Zina being committed on a cot covered with a mosquito-net in the room in the light of a lantern by peeping through the holes at mid-night---Impugned judgment of acquittal was not shown to be perverse, arbitrary or capricious and the same did not warrant any interference---Prosecution version had rightly been disbelieved being untrue---Leave to appeal was declined to complainant in circumstances.

Muhammad Ilyas Siddiqui, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 23rd November, 2005.

2006 SC MR 351

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Raja Fayyaz Ahmed, JJ

MUHAMMAD NAEEM----Petitioner

versus

THE STATE----Respondent

Jail Petition No.227 of 2004, decided on 21st November, 2005.

(On appeal from the judgment, dated 8-6-2004 of the Lahore High Court, Lahore passed in Criminal Appeal No.84 of 2004).

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

----S. 9(c)---Constitution of Pakistan (1973), Art.185(3)---Prosecution evidence supporting the case against the accused was consistent and convincing---Initial onus had been successfully discharged by the prosecution by substantiating that the accused on the relevant date and time was found in possession of "Charas" weighing 9 Kgs., samples whereof having been sent to the Chemical Examiner the same were found to be "Charas"---Defence had failed to impeach or discredit the said evidence---No attempt having been made by the defence at the trial at any stage of the proceedings for summoning the Chemical Examiner in Court to test him about the minimum required quantity of the substance necessary for analysis, it could not be said that the samples taken from the illicit substance were deficient in quantity to result into an effective finding---Even otherwise, had it been so Chemical Examiner would not have given his report after examination of the substance---Presumption, therefore, would be that the required quantity of the sample was made available to the Chemical Examiner for the purpose of chemical examination---Accused in order to substantiate his plea taken in defence had neither himself appeared in the witness-box, nor produced any evidence to indicate the same to be reasonable or even probable, and he was not entitled to its benefit merely because he had advanced the said plea in answer to the question put to him during his examination under S.342, Cr.P.C.---Concurrent findings of the two Courts below did not suffer from any legal infirmity or impropriety requiring reappraisal of. evidence---Leave to appeal was declined to accused in circumstances.

Nasir Khan v. The State 1997 MLD 1473 and Wazir Muhammad v. The State 1992 SCMR 1134 distinguished.

Fazal Karim Butt, Advocate Supreme Court for Petitioner.

Sardar Muhammad Siddique Khan, Advocate Supreme Court for the State.

Date of hearing: 21st November, 2005

2006 SC MR 356

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, Muhammad Nawaz Abbasi and Mian Shakirullah Jan, JJ

MUHAMMAD RAFIQUE and another----Petitioners

versus

THE STATE----Respondent

Jail Petitions Nos.418 and 426 of 2002, decided on 27th October, 2005.

(On appeal from the judgment, dated 23-10-2002 of the Peshawar High Court, Abbottabad Bench passed in Criminal Appeals Nos.19 and 20 of 2002).

Penal Code (XLV of 1860)---

----S. 302(b)/34---Constitution of Pakistan (1973), Art.185(3)---No illegality, infirmity, misreading or non-appreciation of evidence could be pointed out by the defence counsel in the judgments of the Courts below---Confessional statements of both the accused having been recorded by the Magistrate after fulfilling all the legal formalities, were found to be voluntary, which had established that both the accused had developed illicit relations and they with common intention had killed the husband of the female accused---Said evidence had been corroborated by unimpeachable circumstantial evidence of recovery of pistol from the female accused and the matching of the same with the crime-empty recovered from the spot as well as the piece of bullet recovered from the body of the deceased---Leave to appeal was refused to accused in circumstances.

Ali Hassan Gillani, Advocate Supreme Court for Petitioners.

M. Bilal, Senior Advocate Supreme Court for the State.

Ch. Muhammad Akram, Advocate-on-Record for the Complainant.

Date of hearing: 27th October, 2005.

2006 SCMR 360

[Shariat Appellate Jurisdiction]

Present: Justice Abdul Hameed Dogar, Chairman, Justices Mian Shakirullah Jan, Raja Fayyaz Ahmed, Dr. Allama Khalid Mahmood and

Dr. Rashid Ahmad Jullundhari, Members

RASHEED AHMAD----Petitioner

versus

THE STATE----Respondent

Criminal Petition No.34(S) of 2004, decided on 15th November, 2005.

(On appeal from the judgment, dated 3-6-2004 of the Federal Shariat Court, Islamabad passed in Criminal Appeal No.133/L of 2003).

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S. 10(3)---Constitution of Pakistan (1973), Art.203-F(2B)---Victim girl aged eight years was deaf . and dumb---Lapse on the part of the Investigating officer to examine the victim through a Teacher of Deaf and Dumb School was of no benefit to the defence in the absence of any strong reason or motive for false implication of accused in the case---F.I.R. was promptly lodged after the incident and the victim girl was got medically examined on the same day---Opinion of the Lady Doctor and the report of the Chemical Examiner had proved that the girl had been subjected to sexual intercourse---Vaginal swabs of the victim were found to be stained with semen and blood---Father of the minor deaf and dumb girl could not be supposed to have made a false allegation against the accused at the cost of his family honour---Ocular evidence was consistent, straightforward and convincing on all material particulars, which had been deeply scrutinized and appraised by the Courts below in its true perspective without misconstruing any part of the incriminating evidence---Petition was also barred by time of 53 days for which so plausible explanation had been furnished---Leave to appeal was refused to accused on merits as well as on the ground of limitation in circumstances.

Mst. Siani v. The State PLD 1984 FSC 121; Mst. Elahi Sain v. The State 1986 SCMR 148 and Muhammad Ali and another v. The State 1987 PCr.LJ 671 ref.

Malik Rab Nawaz Noon, Senior Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 15th November, 2005.

2006SCMR366

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

SULEMAN----Petitioner

versus

THE STATE----Respondent

Jail Petition No.219 of 2004, decided on 8th November, 2005.

(On appeal from the judgment, dated 27-4-2004 of the Peshawar High Court, Peshawar passed in Criminal Jail Appeal No.835 of 2003).

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

-----S.7(a)-Constitution of Pakistan (1973), Art. l85(3)---Accused in his confessional statement before the Magistrate had categorically admitted to have killed the minor boy of 7/8 years on the instigation of co-accused for monetary consideration---Shoes of the deceased had been recovered from the bathroom of the house of accused---Entire story had been disclosed by the accused himself voluntarily and without any duress while confessing his guilt before the Magistrate, which even otherwise was corroborated by his extra-judicial confession made before the prosecution witness---Impugned judgment did not suffer from any illegality, misreading or non-reading of evidence---No extenuating circumstance could be pointed out to reduce the death sentence awarded to accused---Leave to appeal was declined to accused in circumstances.

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

----S. 164---Judicial confession, when sufficient for conviction---Judicial confession alone can be made a basis for conviction when it is found true, convincing and made voluntarily by the accused without any duress or coercion.

Sardar Muhammad Siddique Khan, Advocate Supreme Court for Petitioner.

Pir Liaquat Ali Shah, Additional Advocate-General, N.-W.F.P. for the State.

Sanaullah Zahid, Advocate Supreme Court for the Complainant.

Date of hearing: 8th November, 2005.

2006 SC MR 370

[Shariat Appellate Jurisdiction]

Present: Justice Abdul Hameed Dogar, Chairman, Justices Mian Shakirullah Jan, Raja FayyazAhmed, Dr. Allama Khalid Mahmud and Dr. Rashid Ahmed Jullundhari, Members

MUZAMMAL alias TIDDI and another----Appellants

versus

THE STATE----Respondent

Criminal Appeal No.25(S) of 2003, decided on 15th November, 2005.

(On appeal from the judgment, dated 27-2-2002 of the Federal Shariat Court, Camp at Lahore, passed in Criminal Appeals Nos.319-L, 21-L and 22-L of 2001).

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

----Ss. 458 & 395---Constitution of Pakistan (1973), Art.203-F(2B)--Leave to appeal was granted by Shariat Appellate Bench of the Supreme Court to accused for reappraisal of circumstantial evidence on which they had been convicted.

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

---Ss. 458 & 395---Appraisal of evidence---One accused according to prosecution evidence was seen near the place of occurrence armed with a pistol whereas other accused nominated by the complainant was seen landing in the street by scaling over the wall of the factory---Looted property worth substantial value had also been recovered from the accused---Accused had failed to bring on record any animosity about their false implication either on the part of complainant or the witnesses and they even had not furnished any convincing and cogent explanation for their implication in the case---Impugned judgment was based on valid and sound reasons and was entirely in consonance with the law laid down by Supreme Court and it did not suffer from any misreading or non-reading of material evidence nor misconstruction of facts and law---Appeal was dismissed accordingly.

Nemo for Appellants.

Nemo for Respondent.

Date of hearing: 15th November, 2005.

2006 SC MR 373

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J. Javed Iqbal and Raja Fayyaz Ahmed, JJ

BAHADUR KHAN----Petitioner

versus

MUHAMMAD AZAM and 2 others----Respondents

Criminal Petitions Nos.44-Q and 45-Q of 2003, decided on 1st November, 2005.

(On appeal from the judgment of High Court of Balochistan, Quetta, dated 16-6-2003 passed in Criminal Appeal No.59 of 1999, Criminal Acquittal Appeal No.67 of 1999 and Criminal Revision No.30 of 1999).

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

----Ss. 156 & 173---Reinvestigation and submission of subsequent challan in the Court---Extent and scope---No legal bar exists for reinvestigation of a criminal case even after submission of final report under S.173, Cr.P.C.---Police can carry out the fresh investigation and submit its report to the Court, but this would not mean that in a case in which earlier after completion of investigation challan was submitted for trial of an offence, on which the accused had been tried and the case was finally decided upto the level of the High Court or the Supreme Court, subsequent challan would be entertained which is submitted as the result of reinvestigation or further investigation of the case by the police on the happening of a subsequent incident and that the Court would proceed with the trial of the case in the normal course oblivious of the facts of the case decided earlier by such Court.

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

----Ss. 212 & 120-B/34---Criminal Procedure Code (V of 1898), 5.190---Constitution of Pakistan (1973), Art.185(3)---No supplementary challan was submitted for the offences under Ss.212 & 120-B/34, P.P.C. against the accused respondents for hatching criminal conspiracy for the murder of the deceased and for harbouring co-accused---Subsequent challan in the murder case against the respondents was submitted directly in the Trial Court after a lapse of more than five years from the date of decision of the High Court in criminal appeal, criminal acquittal appeal and criminal revision petition preferred against the judgment of the Trial Court in the murder case---Second challan for trial of the offences under Ss.212 & 120-B/34, P.P.C. had been submitted in the Trial Court which had become functus officio long before, but it directly took cognizance of the offence which was not permissible within the meaning of 5.190, Cr.P.C., and proceeded with the trial of the case after framing charge and finally convicted one accused under S.212, P.P.C. and acquitted the other accused of the charge---High Court, after having considered the entire facts and circumstances of the case as well as the relevant law on the subject, had rightly set aside the conviction of the said accused and dismissed the criminal revision and criminal appeal against the acquittal of the other accused---Impugned judgment was, thus, unexceptionable---Leave to appeal was refused to complainant accordingly.

Muhammad Akbar v. The State and another 1972 SCMR 335; Rehmat Ali and another v. The State 1976 SCMR 204 and Aftab Ahmed v. Hussan Arshad and 10 others PLD 1987 SC 13 distinguished.

Riaz Hussain and another v. The State 1986 SCMR 1934 ref.

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

----Ss. 156 & 173---Reinvestigation---System of reinvestigation is a recent innovation which is always taken up at the instance of influential people for obtaining favourable reports, which in no way assists the Courts in coming to a correct conclusion, rather they create more complications in the way of administration of justice---Such system of reinvestigation and successive investigations, therefore, was disapproved.

Riaz Hussain and another v. The State 1986 SCMR 1934 ref.

Syed Ahmed Mohiuddin Quadri, Advocate-on-Record for Petitioner (in both Criminal Petitions).

Nemo for the State.

Date of hearing: 1st November, 2005.

2006 SCMR 382

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and M. Javed Buttar, JJ

FEDERATION OF PAKISTAN through Secretary Education, Islamabad----Petitioner

versus

Professor Dr. ANWAR and 2 others----Respondents

Civil Petition No.2442 of 2003 and Civil Appeal No.1636 of 2005, decided on 24th October, 2005.

(On appeal from the judgment, dated 28-7-2003 passed by Lahore High Court, Multan Bench, in Writ Petition No.907 of 2003).

Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order (P.O.I of 1983)---

----Arts. 9 & 32---Constitution of Pakistan (1973), Art.185(3)---Filing of representation against order of Wafaqi Mohtasib (Ombudsman)---Grievance of respondent in his constitutional petition before the High Court was that order passed by Ombudsman in complaint filed by him was set aside on representation filed by petitioner Agency before President of Pakistan without hearing respondent and that even written reply of respondent was not called before passing an order adverse to his interest and that he was condemned unheard---High Court setting aside order by virtue of which representation was accepted, directed concerned Section Officer for providing an opportunity of hearing to the respondent before disposal of representation of petitioner Agency---Validity---Before deciding a representation against recommendation of Wafaqi Mohtasib, valid and justiciable reasons must be given for arriving at conclusion contrary to recommendations of Wafaqi Mohtasib---As per Scheme of law in a representation to President against order of Ombudsman, it was not possible for the President to provide personal hearing to parties in such representation---Inviting comments/written arguments in reply to representation by concerned quarters would be considered sufficient compliance of law---Direction of High Court for providing hearing to respondent by Section Officer was beyond scope of Art.32 of Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 as a Section Officer could not act as agent of President under said Article---Petition for leave to appeal was converted into appeal by Supreme Court and was disposed of with modification in impugned judgment that representation of petitioner Agency would be deemed to be pending which would be decided after written reply of respondent and considering same in accordance with law.

Federation of Pakistan through Secretary Establishment Division v. Muhammad Tariq Pirzada 1999 SCMR 2744 ref.

Ms. Naheeda Mahboob Elahi, D.A.-G. for Petitioner.

Mirza Manzoor Ahmed, Advocate Supreme Court for Respondents.

Jameel Ahmed Hashmi, Advisor for Department.

Date of hearing: 24th October, 2005.

2006 S C M R 385

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Saiyed Saeed Ashhad and Hamid Ali Mirza, JJ

SECRETARY MARKET COMMITTEE, SETHARAJA AT THARI MIRWA, DISTRICT KHAIRPUR----Petitioner

Versus

GOVERNMENT OF SINDH and others----Respondents

C.P.L.As. Nos.251-K to 260-K of 2005, decided on 25th October, 2005.

(On appeal from the judgment of Sindh High Court, Karachi, dated 18-1-2005 passed in C.Ps. Nos.D-343 of 2001, D-102, 143, 1878, 1698, 1355, 1341, 1340, 1335 of 2002 and 1089 of 2003).

Sindh Local Government Ordinance (XXVII of 2001)---

----S. 54-Agricultural Produce Markets Act (V of 1939), S.19---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by the Supreme Court to consider question of law as to whether provisions of S.54 of Sindh Local Government Ordinance, 2001 would prevail over the provisions of S.19 of Agricultural Produce Markets Act, 1939 regarding levy of fee etc. by Market Committee.

Abrar Hussain, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 25th October, 2005.

2006 S C M R 386

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

MUHAMMAD HUSSAIN LARIK and others----Petitioners

Versus

MUSLIM COMMERCIAL BANK LTD.----Respondent

Civil Petition No.530-K of 2005, decided on 20th June, 2005.

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)----

----S.O. 15---Constitution of Pakistan (1973), Art.185(3)---Dismissal from service---Misconduct and unauthorized absence from duty, charge of---Employees of Bank designated as Officers Grade-III---Labour Court reinstated such employees in service finding them to be officers and their job being supervisory in nature---High Court set aside judgment of Labour Court and non-suited such employees for being workmen---Supreme Court granted leave to appeal to consider, inter alia, whether on basis of material available on record, such employees could be non-suited for being not workmen within the meaning of term, more particularly when Management itself had resorted to disciplinary enquiry against them thereby treating them as workmen.

Suleman Habibullah, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 20th June, 2005.

2006 S C M R 388

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

DADABHOY ENERGY SUPPLY COMPANY LTD.----Petitioner

Versus

FEDERATION OF PAKISTAN and others----Respondents

Civil Petition No.271-K of 2004, decided on 20th October, 2005.

(On appeal from the order, dated 23-12-2003 passed by High Court of Sindh at Karachi in Constitutional Petition No.272 of 2000).

Income Tax Ordinance (XXXI of 1979)---

----S. 50(5)---S.R.O.584(I)/95, dated 1-7-1995---S.R.O.279(I)194, dated 2-4-1994---Constitution of Pakistan (1973), Art.l85(3)---Issuance of exemption certificate and declaring S.R.Os. as discriminatory, unlawful and ultra vires of the Constitution---Counsel for petitioner who also appeared on behalf of petitioner in the High Court, had conceded that S.R.Os. in question were examined by Supreme Court in another case reported as 1999 SCMR 412 and same were not found to be discriminatory or ultra vires the Constitution---High Court in view of such concessional statement of counsel for petitioner found that once it was admitted that notification of S.R.Os. in question was examined by Supreme Court and found that same was neither unlawful nor ultra vires the Constitution, it could not be assailed again on same grounds before the Court as it would amount to examining or determining the correctness, legality and propriety of a judgment given by Supreme Court on same issue in an earlier case, which was not permissible in law---Nothing having left for adjudication, petition was dismissed.

Anoud Power Generation Ltd. v. Federation of Pakistan PLD 2001 SC 340 and Collector of Customs v. Ravi Spinning Ltd. 1999 SCMR 412 ref.

S. Irtaza H. Zaidi, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record (absent) for Petitioner.

Nemo for Respondents Nos.1, 3 and 4.

Akhlaq Ahmed Siddiqui, Advocate-on-Record for Respondent No.2.

Date of hearing:, 20th October, 2005.

2006 S C M R 391

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J. M. Javed Buttar and Tassadduq Hussain Jillani, JJ

GOVERNMENT OF SINDH----Petitioner

Versus

JAM MAHTAB HUSSAIN and others----Respondents

C.P.L.As. Nos.2642, 2643 and 2644 of 2005 and C.M.As. Nos.5479 to 5481 of 2005.

Sindh Local Government Ordinance (XXVII of 2001)---

----Ss. 6 & 7---West Pakistan Land Revenue Act (XVII of 1967), S.6---Constitution of Pakistan (1973), Art.185(3)---Delimitation of Talukas and Union Councils---Notifications dated 27-8-2005 and 29-8-2005 issued by Provincial Government creating new Talukas and Union Councils in a District-Validity-Compromise between parties before Supreme Court, whereby Government agreed to replace impugned notification with fresh notification---Supreme Court accepted appeal with observations that after issuance of fresh notification by Government, Election Commission of Pakistan would issue a Schedule for holding elections of Local Government in the District in accordance with law.

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court along with Waqar Rana, Advocate and Mehr Khan Malik, Advocate-on-Record.

Anwar Mansoor, Advocate-General, Sindh.

Abdul Mujeeb Pirzada, Senior Advocate Supreme Court Ch. Muhammad Akram and M.S. Khattak, Advocates-on-Record.

M. Suleman Butt, Advocate Supreme Court with Zabardast Khan and Ali Diyo.

Nasir Saeed Sheikh, D.A.-G.

Date of hearing: 17th November, 2005.

2006 S C M R 393

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Raja Fayyaz Ahmed, JJ

FAZAL ILLAHI and another----Petitioners

Versus

INSPECTOR-GENERAL OF POLICE, N.-.W.F.P. and 2 others----Respondents

Civil Petitions Nos.1825 and 588-P of 2003, decided on 10th November, 2005.

(On appeal from the judgment, dated 28-5-2003 of N.-W.F.P. Service Tribunal passed in Appeal No.58 of 2001).

(a) North-West Frontier Province Police Rules, 1975---

----Rr. 3(3)(a) & 5(3)---North-West Frontier Province Service Tribunals Act (I of 1974), S.4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Police constable---Misconduct, charge of---Charge against constable was that he had received amount from villagers involved in some criminal case by fraudulently representing himself to be personnel of C.I.A. staff---Appeal before Service Tribunal by constable was dismissed---Validity---Constable had been caught red-handed by villagers---Overwhelming incriminating material had been collected by Inquiry Officer during course of preliminary inquiry---Constable had been issued final show-cause notice and heard by departmental forums, but had failed to explain his position or rebut incriminating material---No part of incriminating evidence had been misread, non-read or misconstrued---Supreme Court dismissed petition for leave to appeal.

(b) North-West Frontier Province Police Rules, 1975---

----R. 3(3)---Major penalty, imposition of---Charge of misconduct against police constable---Dispensing with holding of regular inquiry and conducting general police proceedings into such matter---Validity---Powers of Departmental Authority---Scope---Not statutory obligation of Authority to direct for holding a formal inquiry into such allegations---Authority had exclusive powers to decide in view of incriminating material or nature of allegations for holding a regular inquiry or dispensing with same and dealing with case in general police proceedings---Principles.

Inspector-General of Police, Police Headquarters Office, Karachi and 2 others v. Shafqat Mehmood 2003 SCMR 207: Khaliq Dad v. Inspector-General of Police and 2 others 2004 SCMR 192 and Altaf Hussain Shah v. Punjab Service 'Tribunal, Lahore and others 2003 SCMR 1172 ref.

(c) North-West Frontier Province Police Rules, 1975---

----Rr. 3(3)(a) & 5(3)---North-West Frontier Province Service Tribunals Act (I of 1974), S.4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Police constable---Misconduct, charge of---Charge against constable was to have received amount from villagers involved in some criminal case by fraudulently representing himself to be personnel of C.I.A. staff---Service Tribunal dismissed appeal of constable---Validity---Villagers had stated before Inquiry Officer that constable was accompanied by a person at relevant time, who made good his escape-No further probe with regard to such person had been made---Evidence collected during course of preliminary inquiry resulting into submission of report by Inquiry Officer eventually culminating into dismissal of constable from service had been misread and misconstrued by departmental forums and had not been taken notice of even by Service Tribunal---Impugned order was not sustainable in law and facts---Supreme Court accepted appeal, set aside impugned order with direction to Departmental Authority to hold further inquiry into allegations against constable, resultantly he stands reinstated in service treating intervening period as any kind of leave due.

Muhammad Naeem Sheikh, Advocate Supreme Court for Petitioners.

M. Bilal, Senior Advocate Supreme Court for Respondents Nos.1-3.

Date of hearing: 10th November, 2005.

2006 S C M R 402

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J and Tassadduq Hussain Jillani, J

DEFENCE DEPARTMENT OF PAKISTAN through Secretary Ministry of Defence----Petitioner

Versus

PROVINCE OF PUNJAB and another----Respondents

Civil Petition No.34-L of 2006, decided on 23rd January, 2006.

(On appeal from the judgment, dated 20-10-2005 passed by Lahore High Court, Lahore in R.F.A. No.187 of 2000).

Land Acquisition Act (I of 1894)---

----S. 18---Constitution of Pakistan (1973), Art.185(3)---Reference against compensation, filing of---Locus standi---Reference under S.18 of Land Acquisition Act, 1894, before Referee Court, by a beneficiary was not competent---Leave to appeal was refused.

Pakistan v. Abdul Hayee Khan PLD 1995 SC 418 ref.

Yawar Ali Khan, D.A.-G., Rao Muhammad Yousaf Khan, Advocate-on-Record and Mad, S.D.O. for Petitioner.

Nemo for Respondents.

Date of hearing: 23rd January, 2006.

2006 S C M R 403

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Tassadduq Hussain Jillani, JJ

ALLAH BAKHSH, FOODGRAIN SUPERVISOR (Retd.)----Petitioner

Versus

DIRECTOR FOOD, PUNJAB, LAHORE and others----Respondents

Civil Petition No.207-L of 2001, decided on 30th August, 2004.

(On appeal from the judgment/order, dated 23-11-2000 passed by Punjab Service Tribunal, Lahore in Appeal No.421 of 1988)

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----Rr. 4(b) & 8---Recovery of loss---Maxim: audi alteram: partem---Applicability---On the allegation of shortfall in wheat stock, departmental inquiry was initiated against civil servant---Charge of loss to Government was not proved during the inquiry and such findings of Inquiry Officer were endorsed by Authorized Officer but higher authorities imposed penalty of recovery of loss from civil servant---Validity---Inquiry Officer did not recommend for recovery of loss against civil servant and if the Authority wanted to exercise its powers under R.8 of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, it was incumbent upon it to give sound reasons, on the basis of facts available on record or it should have invoked some principle of law in order to come to the conclusion that the civil servant was liable to make good the loss---Order imposing penalty of recovery of loss was not based upon sound reasons and was not maintainable in the eye of law---Civil servant was condemned unheard in violation of principles of natural justice, enshrined in maxim audi alteram partem---Supreme Court converted petition for leave to appeal into appeal and set aside the orders passed by Service Tribunal and departmental authorities and directed the authorities to refund the loss recovered from the civil servant---Appeal was allowed.

Zafar Ali v. Deputy Director Food, Multan Region 1982 SCMR 1864 fol.

Hafiz Tariq Naseem, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioner.

Aziz Ahmed Chughtai, Advocate Supreme Court and Rao M. Yousaf Khan, Advocate-on-Record (absent) for Respondents.

Date of hearing: 30th August, 2004.

2006 S C M R 407

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Faqir Muhammad Khokhar and Saiyed Saeed Ashhad, JJ

ASHIR WASIM BABAR----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.418-L of 2005, decided on 26th August, 2005.

(On appeal from the judgment/order, dated 13-7-2005 passed by Lahore High Court, Lahore in Criminal Miscellaneous No.4375/B of 2005).

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.324/337-A(ii)/337-L(2)---Constitution of Pakistan (1973), Art.l85(3)---Pre-arrest bail, refusal of---Contesting of election openly for the office of "Nazim" by the accused after having been charged under Ss.324, 337-A(ii) & 337-L(2), P.P.C. itself was an evidence that the Authorities including the Incharge of the police station concerned and the Presiding Officer, etc. had not caused his arrest, knowing well about his involvement in the offence---Accused on account of his influence seemed to have attempted to circumvent the process of law, admittedly for no other purpose but with mala fide intentions and ulterior motives---F.I.R. and medical evidence had revealed that the accused had inflicted injuries with the "Butt" of the pistol on the vital part i.e., head of the complainant, which showed that the case had been registered against the accused without any ulterior motive---Happening of the incident was not denied by the accused and his plea that he had been attacked by the complainant party was not substantiated by him through any independent source at this stage---Complainant who had charged the accused for the offences including an attempt of murder, had suffered at his hands and no harm, therefore, would be caused if the accused was arrested---Investigating Agency had yet to recover the crime weapon from the accused which was not possible without his arrest---Pre-arrest bail was declined to accused in circumstances.

Muhammad Safdar v. State 1983 SCMR 645 fol.

Muhammad Anwar Bhore, Advocate Supreme Court and A.H. Masood, Advocate-on-Record for Petitioner.

Ch. Muhammad Jehangir Wahla, Advocate Supreme Court and Tanveer Ahmad, Advocate-on-Record for the Complainant.

M. Hanif Khatana, Additional Advocate-General, Mian Ghulam Hussain, Advocate Supreme Court and Muhammad Arshad, A.S.-I. for the State.

Date of hearing: 26th August, 2005.

2006 S C M R 412

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

AMIR-FEROZ SHAMSI and another----Petitioners

Versus

INSTITUTION OF BUSINESS ADMINISTRATION and another----Respondents

C.P.L.As. Nos.452-K and 453-K of 2003, hear on 28th January, 2005.

Constitution of Pakistan (1973)---

----Art. 185(3)--- Educational institutions--- Comprehensive examination---Petitioners had sought declaration that comprehensive examination scheduled to be held being mala fide and discriminatory, was illegal and of no effect---Contention of petitioners was that they having already got enrolled themselves with the Institute and qualified in a good number of courses, could not be detained from appearing at the examination in remaining courses and restrain sitting in the comprehensive examination---Stance of Institute had been that once a Policy decision had been taken by Institute which was a statutory body, in the interest of higher standard of education, it would be applied with immediate effect and all such students including the petitioners, were duly informed about the change of eligibility criteria before holding of examination of such courses---Validity---Despite petitioners failure to achieve the required target prescribed under statutory rules of the Institute, petitioners should not have been permitted to sit in the comprehensive Test as it would neither be fair nor just or equitable to interfere into affairs falling within exclusive domain of the Institute---Action impugned was supported by a lawful authority vested in Academic Board of the Institute and petitioners did not appear to have been singled out---No room was there, in circumstances for regulating business of the Board by the Court.

Muhammad Sadiq v. University of Sindh PLD 1996 SC 182 ref.

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

Chaudhry Muhammad Jamil, Advocate Supreme Court and Raja Sher Muhammad Khan, Advocate-on-Record for Respondents.

Date of hearing: 28th January, 2005.

2006 S C M R 415

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

GHUFRALA TAUSEEF----Petitioner

Versus

PUNJAB PUBLIC SERVICE COMMISSION, LAHORE and others----Respondents

Civil Petition No.268-L of 2002, decided on 2nd January, 2006.

(On appeal from the judgment, dated 19-11-2001, passed by a learned Division Bench of the Lahore High Court, Lahore, in I.C.A. No.935 of 1999).

Unani Aurvedic Homeopathy System of Medicines Rules, 1980---

----R.4---Constitution of Pakistan (1973), Art.185(3)---Assistant Director Romeo, appointment of---Pre-registration experience---Scope---Grievance of petitioner was that Public Service Commission had wrongly included pre-registration experience of respondent at the time of appointing him as Assistant Director Homeo---Validity---Pre-registration experience in Homeopathy for the purposes of registration as Homeo doctor was recognized under R.4 of Unani Aurvedic Homeopathy System of Medicines Rules, 1980---Public Service Commission as well as High Court were correct in taking the pre-registration experience into consideration---Fact that the respondent was registered as Homeo doctor later was not sufficient to exclude his experience as Homeo doctor with Government---Judgment passed by High Court was correct to which no exception could be taken---Leave to appeal was refused.

Liaquat Ali Qureshi, Advocate Supreme Court and Ch. Talib Hussain, Advocate-on-Record for Petitioner.

Muhammad Yaqub Sidhu, Advocate Supreme Court and M. Ozair Chughtai, Advocate-on-Record for Respondent No.3.

Date of hearing: 2nd January, 2006.

2006 S C M R 418

[Supreme Court of Pakistan]

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

ASHIQ HUSSAIN and 8 others----Appellants

Versus

KABIR----Respondent

Civil Appeal No.2041 of 2001, decided on 17th January, 2006.

(On appeal from the judgment, dated 28-2-2000 passed by the Lahore High Court, Multan Bench, Multan in Civil Revision No.233-D of 1989).

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

----S. 3-- Right of collaterals---Limited estate, termination of---Widow being the limited owner was survived by two daughters only---Upon the death of the widow, the whole property devolved upon her daughters---Plaintiff being the collateral claimed his share in the property---Validity---Limited estate stood finally terminated by S.3 of West Pakistan Muslim Personal Law (Shariat Application) Act, 1962---From the year, 1962 onwards, all the legal heirs of the limited owner would become owners in accordance with their Shari shares---Limited owner having no male issue, her two daughters would inherit 2/3rd share collectively, while 1/3rd share would go to the collaterals, out of whom the plaintiff was only alive---Share of one of the daughters who died issueless was wrongly allocated to the plaintiff, as the daughter having died in the year 1978, she had transferred her entire entitlement in favour of the sons of her sister on 10-8-1965---Plaintiff was entitled only to 1/3rd share in the property of the limited owner---Judgment and decree passed by Trial Court and upheld by High Court was modified to the effect that daughters were entitled to 2/3rd share, while the plaintiff was entitled to 1/3rd share in the property of the limited owner---Decree was amended accordingly---Appeal was allowed partially.

Mst. Ajaib Sultana and another v. Gohar-ur-Rehman and 5 others 1997 SCMR 1412 and Mst. Began v. Mst. Bai 1983 SCMR 80 ref.

Riyasat Ali,Chaudhry, Advocate Supreme Court for Appellants.

Awan Muhammad Hanif, Advocate Supreme, Court for Respondent.

Date of hearing: 13th December, 2005.

2006 S C M R 421

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

SHER MUHAMMAD SHEHZAD and 22 others----Petitioners

Versus

DISTRICT HEALTH OFFICER and another----Respondents

Civil Petitions Nos.403-L to 425-L of 2002, decided on 3rd May, 2002.

(On appeal from the judgment, dated 5-12-2001 of the Punjab Service Tribunal Lahore, passed in Appeals Nos.539-542, 545-552, 558, 561-563, 565-567, 569 and 570 of 1999).

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

----S. 4---Reinstatement---Recovery of back-benefits---Order of dismissal of civil servants from service was set aside by Service Tribunal but back-benefits were declined by treating intervening period as extraordinary leave---Validity---Nothing was available on record that the civil servants were gainfully employed anywhere during the relevant period, therefore, it would be unjust and harsh to deprive them of back-benefits for the period for which they remained out of job without any fault from their side---Civil servants were proceeded under Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, for no fault on their part and their services were terminated in an arbitrary manner without providing any reason---Salaries of the civil servants would not be withheld for the intervening period when they remained, out of service due to whimsical and arbitrary actions of the functionaries---Civil servants had every right to recover their arrears---Supreme Court converted petition for leave to appeal into appeal and allowed the civil servants all back-benefits---Appeal was allowed.

Pakistan through General Manager, P.W.R., Lahore v. Mrs. A.V. Issacs PLD 1970 SC 415 fol.

Hafiz Tariq Nasim, Advocate Supreme Court for Petitioners (in all C.Ps.).

Mr. Fowzi Zafar, Assistant Advocate-General for Respondents.

Date of hearing: 3rd May, 2002.

2006 S C M R 425

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, Muhammad Nawaz Abbasi and Mian Shakirullah Jan, JJ

PAKISTAN STATE OIL COMPANY LTD.----Petitioner

Versus

COLLECTOR OF CUSTOM, E&ST (ADJUDICATION-II) and others--Respondents

Civil Review Petitions Nos.200 to 329 of 2005 (130 cases), decided on 23rd December, 2005.

(On review from the judgment of this Court, dated 23-5-2005 passed in C.Ps. Nos.897-K of 2004 along with 3 to 131-K of 2005).

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

----Ss. 32(1), (2) & 196---Appellate jurisdiction of High Court---Scope---Question of fact, deciding of---Issuance of show-cause notice---Nature of transaction, determination of---Question of fact or law---Factual inquiry was essential to ascertain the nature of transaction and to determine the commencing date for the purpose of calculation of the period for giving show-cause notice under S.32 (1) and (2) of Customs Act, 1969---Question of law did not require investigation of facts and thus a question involving factual inquiry into facts or to which answer could not be given without going into facts, was not a question of law---Question whether show-cause notice was given within the time prescribed under the law or beyond that period, would be considered a question of fact and not a question of law to be raised and decided by High Court in proceedings under S.196 of Customs Act, 1969.

(b) Supreme Court Rules, 1980---

----O. XXVI- Constitution of Pakistan (1973), Art.188---Review of judgment---Principles---Petitioner assailed the judgment passed by Supreme Court, where instead of remanding the matter to High Court, Supreme Court had converted petition for leave to appeal into appeal and set aside the judgment passed by High Court---Validity---Petitioner instead of pointing out any error apparent on the face of record, in the judgment under review had attempted to reopen the case on the points already taken note of and decided in the judgment---Substance of contentions of petitioner in support of review petition had been dealt with in the main petition on the principle of law---Petitioner in the garb of review petition had attempted to re-argue the matter on merits---Review were not lie merely on the ground , that there was an error in the judgment or that another view of the matter was also possible---Supreme Court was not bound by its own judgment and could subsequently review the law declared by it, if circumstances so demanded---Power of review was exercised very seldom and only in the exceptional cases in which some important aspect of the matter escaped the notice of Supreme Court or was not considered and such error was apparent in the judgment---Conclusion drawn and judgment rendered after due consideration of the material points on the basis of foundation laid by the parties could not be re-considered to alter the judgment in review jurisdiction---Review petition was dismissed.

Makhdoom Ali Khan, A.-G. Pakistan, with Umair Majeed Malik, Advocate Supreme Court for the State.

Sajid Zahid, Advocate Supreme Court with Malik Muhammad Qayyum, Senior Advocate Supreme Court for Petitioner.

Ikhlaq Ahmed, Siddiqui, Advocate-on-Record and Makhdoom Ali Khan, Advocate Supreme Court for Respondents.

Date of hearing: 23rd December, 2005.

2006 S C M R 432

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Sardar Muhammad Raza Khan and Saiyed Saeed Ashhad, JJ

Khawaja MUHAMMAD NADEEM BUTT and others----Petitioners

Versus

DISTRICT JUDGE/DISTRICT RETURNING OFFICER/ APPELLATE TRIBUNAL, NAROWAL and others----Respondents

Civil Petitions Nos.1541-L and 1596-L of 2005, decided on 16th August, 2005.

(On appeal from the judgment, dated 5-8-2005 passed by the Lahore High Court, Lahore in Writ Petitions Nos.14164 and 14174 of 2005).

Punjab Local Government Elections Rules, 2005---

----R. 18(3)---Constitution of Pakistan (1973), Art.185(3)---Nomination papers---Scrutiny---Member of banned organization---Proof---Summoning of record by Supreme Court---Election Commission declared petitioners to be ineligible to contest election on the ground that they were members of banned organization---Order passed by Election Commission was maintained by High Court in exercise of constitutional jurisdiction---Names of petitioners were not available in the record of Home Department as the members of banned organization---Effect---Judgment of High Court and orders passed by Returning Officer and District Returning Officer were set aside---Supreme Court directed the Returning Officer to include names of petitioners in the list of contesting candidates and on completion of pre-poll process allow them to contest election.

Pervaiz Inayat Malik, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioners (in C.P. No.1541-L of 2005).

Hafiz Abdul Rehman Ansari, Advocate Supreme Court and Faiz­ur-Rehman, Advocate-on-Record for Petitioners (in C.P. No.1596-L of 2005).

Muhammad Hanif Khatana, Additional Advocate-General for Respondents (in both cases).

Date of hearing: 16th August, 2005.

2006 S C M R 434

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J. and Tassadduq Hussain Jillani, J

LAHORE DEVELOPMENT AUTHORITY and others----Petitioners

Versus

MUHAMMAD NADEEM KACHLOO and another---Respondents

Civil Petition No.1282-L of 2004, decided on 23rd January, 2006.

(On appeal from the judgment, dated 30-12-2003 passed by Punjab Service Tribunal in Appeal No.823 of 2003).

Constitution of Pakistan (1973)---

----Art. 212 (3)---Dismissal from service---Converting absence without leave into leave of the kind due---Frivolous litigation---Absence of civil servant was initially converted into the leave of kind due but later on he was dismissed from service on the charge of being absent without leave---Service Tribunal set aside the dismissal order and his absence was treated as a leave of the kind due---Validity---Authority had itself condoned the period of absence by allowing him leave without pay---Leave was due to the civil servant and he had been making applications time and again accompanied by medical certificates for the purpose of extending the period of his leave---Authority did not have any justification to institute the present petition because of the fact that absence of the civil servant had been regularized---Supreme Court issued notice to the authorities to explain as to why costs be not imposed upon them for filing frivolous petition, knowing well that the competent authority had treated the period during which the civil servant remained absent, as leave without pay---Supreme Court declined to interfere in the judgment passed by Service ,.Tribunal---Leave to appeal was refused.

Muhammad Rashid Ahmad, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 23rd January, 2006.

2006 S C M R 437

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

Messrs A.M. INDUSTRIAL CORPORATION LIMITED----Petitioner

Versus

AIJAZ MEHMOOD and others----Respondents

C.P.L.A. No.461-K of 2003, decided on 20th June, 2005.

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

----Ss. 15 & 21---Constitution of Pakistan (1973), Art.l85(3)---Ejectment application, - dismissal of-Appellate authority dismissed ejectment application of petitioner-company on sole ground that person who signed the ejectment application was not authorized by petitioner-company through a resolution of Board of Directors nor any Power of Attorney was executed in his favour for institution of ejectment proceedings---Appellate Authority also found that name of petitioner-company had been struck off the Register of Companies by , Registrar, Joint Stock Companies---In absence of existence of a company lawfully registered, Appellate Authority had non-suited petitioner-company and dismissed ejectment application---Petitioner's constitutional petition against said order of Appellate Authority was also dismissed by High Court---Person, who instituted ejectment proceedings on behalf of the company being not duly authorized, no legal defect or error of jurisdiction was found in the view taken by High Court, which was not open to any exception---Petition for leave to appeal was dismissed.

Habib Bank Ltd. v. Zelins Limited 2000 SCMR 472 and Khan Iftikhar Hussain Khan of Mamdot v. Ghulam Nabi Corporation Ltd. PLD 1971 SC 550 ref.

Muhammad Younus, Advocate Supreme Court for Petitioner.

Nadeem Azhar Siddiqui, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Respondent No.1.

Nemo for Respondents Nos.2 and 3.

Date of hearing: 20th June, 2005.

2006 S C M R 439

[Shariat Appellate Jurisdiction]

Present: Justice Abdul Hamid Dogar, Chairman Justices Mian Shakirullah Jan, Raja Fayyaz Ahmed, Dr. Allama Khalid Mahmud and Allama Rashid Ahmed Jullundhari, Members

ZAKRIYA----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.38(S) of 2002, Jail Criminal Appeal No.75-I of 2000 and Murder Reference No.31-I of 2002, decided on 29th November, 2005.

(On appeal from the judgment, dated 22-5-2002 of the Federal Shariat Court, Islamabad passed in Jail Criminal Appeal No.75-I of 2000).

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

----Ss. 302(b) & 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Constitution of Pakistan (1973), Art.203F(2B)---Judgments of the two Courts below did not suffer from any misreading, non-reading, non-appreciation of evidence or any illegality warranting interference by Supreme Court---Ocular version of the natural witness of the locality was fully supported by the police officials and medical evidence, who had deposed that the victim boy was subjected to sexual assault and thereafter, he was thrown out from the building who died at the spot---Chemical Examiner's report also corroborated the prosecution version disclosing that the anal swabs of the deceased were stained with semen---Leave to appeal was declined to accused in circumstances.

Ch. Muhammad Akram, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 29th November, 2005.

2006 S C M R 443

[Supreme Court of Pakistan]

Present: Falak Sher and Syed Jamshed Ali, JJ

GOVERNMENT OF PUNJAB through Secretary, Labour and Manpower, Civil Secretariat and others----Petitioners

Versus

SHAHID MEHMOOD BUTT----Respondent

Civil Petition No.152-L of 2003, decided on 2nd December, 2005.

(Against the judgment, dated 29-10-2002 passed by Punjab Service Tribunal, Lahore in Appeal No.1464 of 1998).

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

----S. 4---Quantum of penalty, reducing of---Contumacious insubordination and indiscipline---Civil servant did not comply with the orders of his transfer, despite rejection of his appeal by appellate authority---Civil servant remained absent from his duty and also misused Government residence---Authorities imposed major penalty of reduction to lower rank---Service Tribunal converted the penalty of reduction to lower rank into censure on the ground that during pendency of appeal/ representation before appellate authority non-compliance of transfer order was not disobedience by civil servant---Validity---Representation against the order of transfer was rejected which was conveyed to the civil servant in writing, wherein he was directed to hand over the charge and official residence but he did not comply with the order---Contumacious insubordination and indiscipline on the part of civil servant having been established, he was disentitled to any indulgence in the matter of quantum of penalty---Supreme Court did not agree with the Service Tribunal because merely by, filing an appeal/representation against order of transfer, civil servant could not stay at a place of his choice unless operation of the transfer order was stayed, which was not the position in the case---Such view of the Service Tribunal, if affirmed, would give licence to every civil servant to file a representation against order of transfer and to stay at a place from which he did not want to move; as such the same would create administrative chaos---Supreme Court did not find any valid reason for reduction of penalty by Service Tribunal and discretion was exercised by the Service Tribunal on irrelevant consideration in an arbitrary manner, which the law did not countenance and the same required correction---Petition for leave to appeal was converted into appeal and judgment passed by Service Tribunal was set aside---Appeal was allowed.

(b) Civil service---

----Penalty---Imposing proportionate penalty---Principles---Penalty should be proportionate to guilt, which depends on the facts and circumstances of a given case such as the nature of duties, the level of responsibility, the nature of organization, conduct of civil servant, his service record and nature of misconduct etc.---After concurring with finding of departmental authorities as to the guilt of a civil servant, their decision on the quantum of penalty should be respected because while imposing penalty, the departmental authority may have variety of factors in view.

M. Hanif Khatana, Additional Advocate-General and Rao Muhammad Yusuf Khan, Advocate-on-Record for Petitioners.

A.H. Masood, Advocate-on-Record for Respondent.

Date of hearing: 2nd December, 2005.

2006 S C M R 447

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

ADAM KHAN----Petitioner

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB, LAHORE----Respondent

Civil Petition No.3032-L of 2002, decided on 16th November, 2005.

(On appeal from the judgment, dated 29-7-2002 passed by the Punjab Service Tribunal, Lahore in Appeal No.1347 of 2000).

Punjab Police (Efficiency and Discipline) Rules, 1975---

----R. 4---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Reinstatement---Back-benefits, entitlement to---Petitioner, who was dismissed from service, was reinstated in service, but without back­ benefits---Petitioner had failed to furnish any satisfactory evidence to prove that during interregnum he did not work anywhere for gain and remained jobless---Service Tribunal, in circumstances, was quite justified in refusing back-benefits to petitioner in peculiar facts and circumstances of the case---Case being not fit for grant of leave to appeal, as impugned judgment did not suffer from any legal infirmity so as to warrant interference by Supreme Court, petition was dismissed and leave to appeal was refused accordingly.

Mrs. Munawar Sauni v. Director, Army Education 1991 SCMR 135 and Secretary to Government of N.-W.F.P., Zakat, Social Welfare Department Peshawar and another v. Sadullah Khan 1996 SCMR 413 ref.

Pervaiz Inayat Malik, Advocate Supreme. Court and Tanvir Ahmad, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 16th November, 2005.

2006 S C M R 448

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., M. Javed Buttar and Syed Jamshed Ali, JJ

NASIR SIDDIQ and another----Petitioners

Versus

RETURNING OFFICER and others----Respondents

Civil Petition No.2434 of 2005, decided on 27th September, 2005.

(Appeal against the judgment, dated 7-9-2005 passed by the Lahore High Court, in Writ Petition No.5170 of 2005).

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

----S. 150 (2)---Punjab Local Government Elections Rules, 2005, Rr.3(g)(h), 25 & 67---Re-polling---Returned candidates sought declaration of result of election but Returning Officer on the basis of police report with regard to disturbance at polling stations referred the matter to District Returning Officer for seeking guidance for declaration of result of election---District Returning Officer further referred the matter to Election Commission who directed re-polling---Returned candidates approached High Court under constitutional jurisdiction, for declaration of result but High Court dismissed the application and directed the returned candidates to approach Election Tribunal---Contention of returned candidates was that result of election be declared, so that they could seek relief in view of provisions of R.67 of Punjab Local Government Elections Rules, ,2005---Validity---No independent report was made by Presiding Officers who were incharge of polling stations, that disturbance had taken place---Returning Officer instead of seeking guidance from District Returning Officer should have declared the result, leaving the parties to approach Election Tribunal, if anyone of them was aggrieved of the same---Election Commission was competent under R.3 (g)(h) of Punjab Local Government Election Rules, 2005, to pass appropriate order for re-polling in view of the circumstances of the case---As correct information was not laid before it, therefore, any order passed by Election Commission for re-polling would have no legal sanctity---Election Tribunal was competent under S.150 (2) of Punjab Local Government Ordinance, 2001, to decide election disputes, relating to corrupt or illegal practice or other illegal act alleged to have been committed---Supreme Court, allowing the appeal, converted petition for leave to appeal into appeal and directed Returning Officer to declare the result of election without any further delay.

Qazi Muhammad Jamil, Senior Advocate Supreme Court, Rana Muhammad Arif, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioners.

Ms. Afshan Ghazanfar, A.A.-G., Raja Muhammad Ibrahim Satti, Advocate Supreme Court and Imran Khurshid, Civil Judge, Pattoki, for Respondents.

Date of hearing: 27th September, 2005.

2006 S C M R 453

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Saiyed Saeed Ashhad, JJ

N.E.D. UNIVERSITY OF ENGINEERING AND TECHNOLOGY----Petitioner

Versus

Syed ASHFAQ HUSSAIN SHAH----Respondent

C.P. No.772-K of 2004, decided on 20th July, 2005.

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

----S. 4---Appeal---Limitation---Time-barred 'departmental appeal---Grievance of authorities was that departmental representation of civil servant was barred by limitation and on the basis of such representation Service Tribunal could not reinstate him in service--Validity-Service Tribunal should have taken note of the fact that appeal before departmental authority being time-barred, appeal by civil servant before Service Tribunal was incompetent---Civil servant proceeded on leave preparatory to retirement on 16-12-2002 and preferred appeal before departmental authority on 31-7-2003, which, on the face of record, was time-barred---Mere fact that department did not notice such fact would not make the service appeal of civil servant within time---Appeal before Service Tribunal being time-barred and incompetent, Supreme Court converted petition for leave to appeal into appeal and set aside the order passed by Service Tribunal---Appeal was allowed.

The Chairman P.I.A.C. and others v. Nasim Malik PLD 1990 SC 951 and State Bank of Pakistan v. Khyber Zaman and others 2004 SCMR 1426 rel.

Pakistan Automobile Corporation Limited through Chairman v. Mansoor-ul-Haque and 2 others 2004 SCMR 1308 ref.

(b) Civil service---

----Leave preparatory to retirement---Revoking of option---Principle---Where civil servant, after enjoying substantial part of such leave revokes same, such revocation cannot be permitted.

Province of Punjab through the Deputy Director Food, Rawalpindi Region v. Muhammad Iqbal 1984 SCMR 334 and Secretary to Government of Punjab, Food and Cooperative Department v. Shamoun Bahadur 1998 SCMR 1536 rel.

Muhammad Tasnim, Advocate Supreme Court and Ahmadullah Faruqi, Advocate-on-Record for Petitioner.

Respondent in person.

Date of hearing: 20th July, 2005.

2006 S C M R 456

[Shariat Appellate Jurisdiction]

Present: Justice Abdul Hameed Dogar, Chairman Justices Mian Shakirullah Jan, Raja Fayyaz Ahmad, Dr. Allama Khalid Mahmud and Allama Rashid Ahmed Jullundhari, Members

NAWAB----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.44(S) of 2003, decided on 1st December, 2005.

(On appeal from the judgment, dated 24-9-2003 passed by the Federal Shariat Court in Criminal Appeal No.59-K of 2001 and Murder Reference No.12/I of 2001).

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

----S. 302(b)---Constitution of Pakistan (1973), Art.203F(2B)---Straight forward and consistent ocular testimony of eye-witnesses, whose presence at the site was established, was trustworthy and did not suffer from any inherent defect or material lacuna---Relationship of eye-witnesses with the deceased, per se, did not render them as interested or partisan witnesses---Medical evidence had fully corroborated the ocular version---Recovery of the empty cartridge from the crime spot and a double-barrel gun with two cartridges from the accused, had further strengthened the prosecution case---Victim in her promptly recorded statement under S.164, Cr.P.C. ,by the Magistrate, had implicated the accused in the crime---Cogent and convincing prosecution evidence had fully proved that it was the accused who had fired at the deceased---Callous and brutal manner in which the accused had acted, did not justify mitigation of sentence---Leave to appeal was refused to accused in circumstances.

(b) Penal Code (XLV of 1860)-

---S. 302(b)-Sentence---Capital punishment, award of---In the event of proof of charge of "Qatl-e-Amd" normal penalty under the law is death---Exceptional circumstances must be shown for taking a lenient view and for the award of lesser penalty.

Sardar Muhammad Siddique Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 1st December, 2005.

2006 S C M R 460

[Supreme Court of Pakistan]

Present: Ajmal Mian, C. J., Muhammad Bashir Jehangiri and Munawar Ahmed Mirza, JJ

FURQAN HABIB and others----Petitioners

Versus

GOVERNMENT OF PAKISTAN and others----Respondents

C.P. Nos.2049-L to 2051-L of 1998, decided on 21st April, 1999.

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

----S. 7---Limitation Act (IX of 1908), S.14---Provisions of S.14 of Limitation Act, 1908 not applicable to proceedings under Service Tribunals Act, 1973.

Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584 ref.

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

----S. 5---Condonation of delay---Prosecution of a wrong remedy in a wrong Court---Not sufficient ground for condonation of delay.

Ghiasuddin Shaikh and others v. Federation of Pakistan, Civil Petitions Nos.507-K to 513-K of 1998 ref.

Khan Muhammad v. Senior Superintendent of Police, Rawalpindi and others. 1989 SCMR 589 and Syed Haji Abdul Wahid and another v. Syed Sirajuddin 1998 SCMR 2296 rel.

Riyasat Ali Ch. Advocate Supreme Court and Ch. M. Khan Mehtab, Advocate-on-Record for Petitioners.

Raja Haq Nawaz, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents.

Date of hearing: 21st April, 1999.

2006 S C M R 463

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

ZAFAR IQBAL and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.474 of 2002, decided on 4th January, 2006.

(On appeal from the judgment, dated 18-9-2002 passed by Lahore High Court, Lahore in Criminal Appeal No.283 of 2001).

Penal Code (XLV of 1860)---

----S. 302/34---Appraisal of evidence---Courts below had based the conviction of accused only on their joint extra-judicial confession, which was defective in law and was not corroborated by any other piece of evidence---Prosecution had failed to prove the case against the accused---Accused were acquitted accordingly.

The State v. Kamal Khan alias Maloo and another 1993 SCMR 1378; Wazir Muhammad and another v. The State 2005 SCMR 277 and Maqsood Ahmad and others v. The State 2005 YLR 1128 ref.

Dr. Babar Awan, Advocate Supreme Court and Syed Zahid Hussain, Advocate Supreme Court for Appellants.

M. Aslam Malik, Advocate Supreme Court for the State.

Date of hearing: 4th January, 2006.

2006 S C M R 467

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

MUHAMMAD TARIQ----Petitioner

Versus

DEPUTY COMMISSIONER, NAROWAL and others----Respondents

Civil Petition No.3589-L of 2002, decided on 18th November, 2005.

(On appeal from judgment, dated 12-6-2002 by the Punjab Service Tribunal, Lahore, in Appeal No.2632 of 2000).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----Rr. 3(b) & 4(1)(iv)---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan (1973), Art.212(3)--Dismissal from service---Conversion of petition for leave to appeal into appeal---Appeal of petitioner against his dismissal from service having been dismissed by Service Tribunal, he had challenged same in petition for leave to appeal before Supreme Court---Petitioner did not press his petition on merits, but had sought indulgence of Supreme Court for modification of extreme penalty of dismissal from service and its conversion into removal from service---In peculiar facts and circumstances of the case and the background in which alleged occurrence on basis of which petitioner was dismissed from service, had taken place, case of reduction of extreme departmental penalty of dismissal from service seemed to have made out---Petition was converted into appeal and was ,allowed---Penalty of dismissal from service awarded to petitioner was converted into removal from service---Impugned order was modified accordingly.

Pervaiz Inayat Malik, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Zubair Khalid, A.A.-G., Punjab (on Court's call).

Date of hearing: 18th November, 2005.

2006 S C M R 468

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., M. Javed Buttar and Hamid Ali Mirza, JJ

Sh. MUHAMMAD TASLEEM----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.398 of 2005, decided on 4th January, 2006.

(On appeal from the order, dated 24-11-2005 in Criminal Miscellaneous No.8095/B of 2005 passed by the Lahore High Court, Lahore).

Criminal Procedure Code (V of 1898)---

---S. 497-Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8, 9(c), 14, 15 & 16---Constitution of Pakistan (1973), Art.185(3)---Bail, refusal of---Investigating agency, after carrying out investigation in the matter, had placed the name of the accused in Column No.2 of the challan---Accused admittedly was the proprietor/owner of the Clearing Agency which was run by him and prima facie he would be responsible for the "Hashish", found in the consignment, who had acted in dual capacity as an exporter as well as a clearing agent---Samples for obtaining the Chemical Examiner's report were to be collected from Saudi Arabia as stated in the challan---Offences alleged against the accused were punishable with death---Bail was declined to accused in circumstances.

Malik Muhammad Qayyum Advocate Supreme Court, Shaukat Ali Mehr, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 4th January, 2006.

2006 S C M R 470

[Supreme Court of Pakistan]

Present: Javed Iqbal and Ch. Ijaz Ahmad, JJ

MAQBOOL AHMAD----Petitioner

Versus

PAKISTAN AGRICULTURAL and others----Respondents

C.P. No.501-L of 2005, decided on 27th January, 2006.

(On appeal from the order, dated 24-1-2005 passed by the Punjab Service Tribunal Lahore in Appeal No.670(L) of 1999).

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

----Art. 129(g)---Constitution of Pakistan (1973), Art.212 (3)---Dismissal from service---Non-production of available evidence---Presumption---Concurrent findings of fact by the forums below---Civil servant in a letter, admitted his responsibility of causing loss to Government, thus he was dismissed from service---Penalty imposed by the authorities was maintained by Service Tribunal---Validity---Civil servant did not attach copy of the letter in which he had admitted the responsibility in writing---Such fact alone was sufficient that contents of the letter with regard to the admission of civil servant presumed to be correct and inference could be drawn against him under the provisions of Qanun-e-Shahadat, 1984---Inquiry Officer after proper appreciation of record found the civil servant guilty, which was approved subsequently by all the forums---Supreme Court was not required to act as a Court of appeal for reappraisal of evidence recorded by Inquiry Officer---Charges against the civil servant were supported by evidence produced by Authorities---Judgment passed by Service Tribunal was in accordance with the dictum laid down by Supreme Court---Civil servant failed to point out any evidence which could persuade Supreme Court to hold that finding rendered by all the Service Tribunals against him were arbitrary, illegal or against the record---Concurrent actions of the authorities and judgment of Service Tribunal were unexceptionable---No substantial question of law of public importance was involved in the case---Leave to appeal was refused.

Javed Aziz Qureshi's case 1998 SCMR 2553; Abdul Rehman's case 1988 SCMR 1711 and Abdul Hameed's case 1979 SCMR 503 rel.

(b) Words and phrases---

----"Satisfied"---Defined.

Blyth's case 1966 AER 524; Angland v. Payne 1944 N.Z.L.R. 610; Abdul Ghafoor v. The Crown PLD 1952 Lah. 624; Maulvi Farid Ahmad v. Government of West Pakistan PLD 1965 (W.P.) Lah. 135; Dr. Ejaz Hassan Qureshi and others v. Government of Punjab and others PLD 1978 Lah. 1419; Raja Abdul Qayyum v. Ch. Latif Akbar, Advocate and others 1994 CLC 2041; Kh. M. Sharif v. Federation of Pakistan through Secretary and others PLD 1988 Lah. 725 and Federation of Pakistan and others v. Haji Saifullah Khan and others PLD 1989 SC 166 rel.

(c) Words and phrases---

----"Substantial question of law"---Connotation---Proper test for determining whether a question of law raised in case is substantial would be whether it is of general public importance or whether it directly and substantially affects the rights of parties and if so whether it is either an open question in the sense that it is not finally settled by Supreme Court or by Privy Council or by Federal Court or is not free from difficulty or calls for discussion of alternative views---If the question settled by the highest Court or the general principles to be applied in determining the question are well-settled and there is a mere question of applying those principles or that the plea raised is palpably absurd, the question would not be a substantial question of law.

Sir Chunilal v. Mehtra & Sons Ltd. v. Century Spinning and Manufacturing Co. Ltd. AIR 1962 SC 1314 rel.

(d) Words and phrases---

----"Public importance"---Meaning---Public importance must include a purpose or aim in which the general interest of community as opposed to particular interest of individual, is directly or vitally concerned.

Pakistan through the Secretary, Ministry of Defence v. Province of Punjab and others PLD 1975 SC 37 and Hamabai Fram-Jee Petit v. Secretary of State for India AIR 1914 PC 20 rel.

(e) Jurisdiction---

----Exercise of jurisdiction---If a mandatory condition in exercise of jurisdiction by Court is not fulfilled then Court has no jurisdiction to assume the jurisdiction.

Mansab Ali v. Ameer and 3 others PLD 1971 SC 124 rel.

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

----Art. 212(3)---Causing loss to Government---Question of fact or law---Scope---Whether a person was responsible for causing loss to Government is a question of fact.

Riaz-ul-Haq and 2 others v. Deputy Director Food, Bahawalpur 1988 SCMR 1994 rel.

Inayatullah Khan Niazi, Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for Petitioner.

Muhammad Akram Khan, Advocate Supreme Court for Respondents.

Date of hearing: 27th January, 2006.

2006 S C M R 476

[Shariat Appellate Jurisdiction]

Present: Justice Abdul Hameed Dogar, Chairman Justices Mian Shakirullah Jan, Raja Fayyaz Ahmad Dr. Allama Khalid Mahmud and Allama Rashid Ahmed Jullundhari, Members

ASIF----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.40(S) of 2003 and Jail Petition No.18(S) of 2005, decided on 15h December, 2005.

(On appeal from the judgment, dated (sic) of the Federal Shariat Court, passed in Criminal Appeal No.(sic).

Penal Code (XLV of 1860)---

---Ss. 302(b) & 377---Appraisal of evidence---Ocular testimony was corroborated by medical evidence---"Chhuri" recovered from accused was found to be stained with human blood---Anal swabs of the deceased were found stained with semen---Boy aged twelve years as firstly subjected to unnatural lust and then killed in a brutal manner by cutting his entire throat with a "Chhuri"---Accused, therefore, did not deserve any leniency---Acquittal of one accused by Trial Court being not only perverse, arbitrary, foolish and capricious, but also based on misreading, non-reading and non-appraisal of evidence, had rightly been converted into conviction by the Federal Shariat Court on valid reasons---Convictions and sentences of accused were upheld in circumstances.

Nemo for Appellant (in Criminal Appeal No.40(S) of 2003).

Raja Saeed Akram, Additional Advocate-General, Punjab for the State (in Criminal Appeal No.40(S) of 2003).

Nemo for Petitioner (in Jail Petition No.18(S) of 2005).

Raja Saeed Akram, Additional Advocate-General, Punjab for the State (in Jail Petition No.18(S) of 2005).

Date of hearing: 15th December, 2005.

2006 S C M R 480

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

SAFDAR HUSSAIN SHAH----Petitioner

Versus

SUPERINTENDENT OF POLICE, SAHIWAL and others----Respondents

Civil Petition No.3035-L of 2002, decided on 16th November, 2005.

(On appeal from judgment, dated 13-6-2002 passed by the Punjab Service Tribunal, Lahore in Appeal No.72 of 1996).

Punjab Police (Efficiency and Discipline) Rules, 1975---

----R. 4---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Petitioner, who was proceeded against departmentally under Punjab Police '(Efficiency and Discipline) Rules, 1975, was served with a show-cause notice on allegation that he, during investigation of a criminal case, had sold an illicit .12 bore pistol to a person from whose possession same was recovered---Petitioner was summoned for personal hearing several times to explain his position before competent Authority, but despite service of notices, he avoided his appearance---Departmental Authorities had considered case of petitioner threadbare and Service Tribunal also recorded findings of fact against petitioner---Impugned judgment of Tribunal was just and fair to which no exception could be taken---Even otherwise, petition for leave to appeal did not involve any substantial question of law of public importance within meaning of Art.212(3) of the Constitution---Petition was dismissed and leave to appeal was refused accordingly.

Pervaiz Inayat Malik, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioner:

Nemo for Respondent.

Date of hearing: 16th November, 2005.

2006 S C M R 482

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Karamat Nazir Bhandari, JJ

BUSHRA BIBI----Petitioner

Versus

DISTRICT EDUCATION OFFICER (FEMALE) DISTRICT SIALKOT and another----Respondents

Civil Petition No.554-L of 2004, decided on 16th December, 2005.

(On appeal from the judgment, dated 10-12-2003 passed by the Punjab Service Tribunal, Lahore, in Appeal No.123 of 2003).

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

----R. 18---Constitution of Pakistan (1973), Art.212(3)---Termination of service---Petitioner was appointed as untrained Drawing Teacher, but her services were terminated on the ground that she had failed to acquire prescribed qualification---Appeal filed by petitioner against order of her termination having been dismissed by Service Tribunal, petitioner had filed petition for leave to appeal before Supreme Court---Petitioner admittedly was not qualified at the time of her appointment, but department had shown grace to permit petitioner to acquire qualification within reasonable time of more than six years, but petitioner had failed to qualify prescribed examination---Impugned order' was just and fair to which no exception could be taken---No question of law of public importance being involved within the meaning of Art.212(3) of Constitution, petition was dismissed.

Rehmat Ali Shah v. Secretary, Defence Production Division , Rawalpindi 1990 SCMR 1500 and Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185 ref.

Pervaiz Inayat Malik, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 16th December, 2005.

2006 S C M R 483

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Ch. Ijaz Ahmad, JJ

INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN and others----Petitioners

Versus

Mian ASIM FAREED and others ----Respondents

Civil Petition No.356-L of 2005, decided on 15th December, 2005.

(On appeal from the order, dated 23-12-2004 of the Lahore High Court, Lahore, passed in Writ Petition No.1181 of 2004).

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

----S. 7(4)---Penal Code (XLV of 1860), Ss.379, 406 & 420---Constitution of Pakistan (1973), Art.199--Quashing of F.I.R.---Registration of F.I.R. and taking of cognizance---Distinction---High Court, in exercise of constitutional jurisdiction, quashed F.I.R. on the ground that it was registered in violation of the provisions of S.7(4) of Financial Institutions (Recovery of Finances) Ordinance, 2001---Validity---No: order for quashing of F.I.R. could be passed nor the same could be approved in absence of any finding that the offences mentioned in F.I.R. were false and malicious and in absence of a finding that if a particular forum or mode had been prescribed with respect to taking of cognizance of an offence then the same also implied prohibition regarding the registration of F.I.R.---Registration of F.I.R. and taking of cognizance of cases were two distinct and independent concepts under the criminal law---If the intention of law-maker was to put any clog on the registration of F.I.R. then the Legislature would have said so specifically and that if the law put a condition only on the taking of cognizance then it could never be read to imply prohibition on registration of F.I.Rs.---High Court did not pass legal and valid order--Supreme Court converted petition for leave to appeal into appeal and set aside the order passed by High Court---Appeal was allowed.

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

Abid Aziz Sheikh, Advocate Supreme Court for Respondents Nos.1 to 3.

Akhtar Ali Qureshi, A.A.-G. with Mian Abdul Qayyum Anjum, Advocate Supreme Court and M. Ikram Khan, D.S.P. Investigation, Kasur for the State.

Date of hearing: 15th December, 2005.

2006 S C M R 485

[Supreme Court of Pakistan]

Present: M. Javed Buttar and Syed Jamshed Ali, JJ

GOVERNMENT OF PUNJAB through Secretary, Industries Mines and Minerals Development, Department, Lahore and another----Petitioners

Versus

SHAKEEL AHMAD----Respondent

Civil Petition No.2130-L of 2003, decided on 24th January, 2006.

(Against the judgment, dated 1-4-2003 passed by Punjab Service Tribunal, Lahore in Appeal No.1585 of 2002).

(a) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975----

---R. 18---Rules of Business (Punjab)---'Government' and Authority', powers of---Competency of Provincial Secretary to pass order on behalf of Provincial Government---Scope---Repository of power to review the proceedings, inter alia, of anAuthorized Officer' is the Provincial Government---Clear line of demarcation exists between the Government' and theAuthority' within the contemplation of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---Provincial Secretary can competently pass an order on behalf of the Provincial Government, subject to compliance of relevant provisions of law including Rules of Business (Punjab).

(b) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----Rr. 2(1)(c) & 18---Constitution of Pakistan (1973), Art.212(3)---Imposition of stoppage of increments by "Authorized Officer" on civil servant---Enhancement of penalty---Power of "Authority" to review the order of "Authorized Officer"---Failure to set aside earlier penalty---Disciplinary proceedings were initiated against civil servant on the allegation of financial irregularities---Authorized Officer imposed penalty of stoppage of four increments but Provincial Secretary directed de novo inquiry---Provincial Secretary, without setting aside the earlier penalty, removed the civil servant from service---Service Tribunal allowed the appeal on the ground that the "Authority" could not review the order of "Authorized Officer" under R.2(1)(c) of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---Validity---Provincial Secretary, while directing de novo inquiry and imposing penalty on civil servant did not act as Provincial Government---Even if there could be any doubt, Supreme Court extended its benefit to the civil servant rather than to the Public functionary---Authorized Officer had imposed the penalty, which was not even set aside by the Authority---In presence of the penalty another de novo proceedings could not be taken against the civil servant and another more harsh penalty could not be imposed---Supreme Court declined to interfere with the judgment passed by Service Tribunal---Leave to appeal was refused.

?

Muhammad Riaz Lone, Advocate Supreme Court for Petitioners.

Muhammad Zafar Ch. Advocate Supreme Court and Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Respondent.

Date of hearing: 24th January, 2006.

2006 S C M R 489

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Saiyed Saeed Ashhad and Ch. Ijaz Ahmad, JJ

ABDUL WAHEED- --Petitioner

Versus

Mst. RAMZANU and others----Respondents

C.P. No.1787 of 2005, decided on 16th January, 2006.

(On appeal from the order, dated 22-3-2005 passed by the Peshawar High Court in Writ Petition No.183 of 2004).

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

----Arts. 189 & 190---Judgment passed by Supreme Court---Effect---Observations of Supreme Court are binding on each and every organ of the State by virtue of Arts.189 and 190 of the Constitution.

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

---Ss. 12 & 42---Civil Procedure Code (V of 1908), O.VII, R.11---Rejection of plaint---Scope---Cause of action---During pendency of suit before Trial Court, plaintiffs filed application for amendment of plaint and defendants filed application for rejection of plaint for having no cause of action---Trial Court dismissed the application filed by defendants and allowed the plaintiffs to amend the plaint---Appellate Court, in exercise of revisional jurisdiction set aside the order passed by Trial Court and rejected the plaint---Such order of Appellate Court was maintained by High Court---Validity---Where cause of action was disclosed in the plaint, plaintiff had a right to have a fair trial of his case, to produce evidence and to have a judicial opinion of a Court on merits of his cause---Plaint could only be rejected when the averments made therein, if accepted, did not entitle plaintiff to a relief---If there was no room for any other possible approach to the case and no triable issue was made same was liable to be rejected under O.VII, R.11, C.P.C.---Court had to presume that every averment made in the plaint was true, therefore, power to reject the plaint under O.VII, R.11 C.P.C. , must be exercised only if the Court had come to the conclusion that even if all the allegations were proved, the plaintiff would not be entitled to any relief---Power to reject the plaint should not be exercised except in a clear case---Trial Court was justified to dismiss the application of defendants, under O.VII, R.11 C.P.C. whereas the revisional Court and High Court erred in law to reverse the same without adverting to the real controversy between the parties---Supreme Court converted petition for leave to appeal into appeal and set aside the orders passed by Appellate Court and High Court and restored that of the Trial Court.

S. Sibtain Fazali v. Star Film Distributors and another PLD 1964 SC 337; Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345; Abdul Karim v. Fazal Muhammad Shah PLD 1967 SC 411; Shah Muhammad v. Inayat Ullah and others PLD 1953 Lah. 87 and Mst. Karim Bibi and others v. Zubair and others 1993 SCMR 2039 ref.

Gulzarin Kiani, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Mian Abdul Rauf, Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 16th January, 2006.

2006 S C M R 496

[Supreme Court of Pakistan]

Present: Javed Iqbal and Ch. Ijaz Ahmad, JJ

NAJAM ABBAS and others---Petitioners

Versus

SUPERINTENDENT OF POLICE CITY DIVISION, GUJRANWALA and others----Respondents

Civil Petitions Nos.276-L of 2005, 2703-L of 2.003, 367-L of 2004, 51-L, 83-L, 151-L, 158-L, 193-L, 201-L, 211-L, 217-L, 220-L, 315-L, 348-L, 435-L, 449-L, 548-L, 755-L, 1337-L, 1404-L, 1440-L, 1497-L of 2005; 90-L, 121-L and 168-L of 2Q06, decided on 14th February, 2006.

(On appeal from the judgments/orders of the Punjab Service Tribunal, Lahore, passed in Appeals Nos.1427 of 2004, dated 16-12-2005, 1928 of 2003, dated 30-8-2003, 620 of 2003, dated 18-12-2003, 1855, 1364 of 2004, 2321 of 2003, 2861 of 2004, 196 of 2004, 2452 of 2004, 980 of 2004, 1213 of 2004, 1176 of 2003, 1855 of 2004, dated 7-12-2004, 2670 of 2004, dated 27-12-2004, 766 of 2003, dated 15-9-2004, 2257 of 2004, dated 4-2-2005, 2871 of 2004, dated 24-1-2005, 2107 of 2004, dated 9-2-2005, 674 of 2005, dated 14-4-2005, 1621 of 2004, dated 11-5-2005, 1486 of 2003, dated 31-5-2005, 2018 of 2003, dated 22-6-2005, 2598 of 2003, dated 7-6-2005, 1893 of 2005, dated 24-11-2005, 2294 of 2005, dated 10-11-2005, 1257 of 2004, dated 12-10-2004).

(a) Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----S. 9---Constitution of Pakistan (1973), Art.212(3)---Revision petition---Dismissal of revision after six months as being non ­maintainable-Dismissal of appeal by Service Tribunal as being time­ barred---Validity---Competent Authority had not returned revision petition to petitioner within prescribed period in terms of S.9(4) of Removal from Service (Special Powers) Ordinance, 2000---Competent authority was obliged to issue instructions regarding availing of remedy of revision by petitioner to avoid abnormal situation---Competent. authority had dismissed revision of petitioner being non'-maintainable, but had entertained revision of co-accused and decided same on merits---Competent authority without issuing intimation to petitioner within prescribed period had dismissed revision as non-maintainable---Had petitioner been informed well in time, he would have availed remedy of appeal before Tribunal in time---Tribunal, while deciding appeal, had not adverted to S.9(4) of Removal from Service (Special Powers) Ordinance, 2000---Supreme Court accepted appeal and set aside impugned judgment, resultantly petitioner's appeal before Tribunal would be deemed pending adjudication.

Government of Punjab v. Muhammad Saleem 1995 SCMR 546; Muhammad Arslan v. Chancellor Quaid-e-Azam University, Islamabad and others 2004 SCMR 1419; House Building Finance Corporation and others v. Syed Muhammad All Gohar Zaidi 2004 SCMR 1811; I.-G. HQ Frontier Corps and others v. Ghulam Hussain and others 2004 SCMR 1397; Superintendent of Police, Headquarters, Lahore and 2 others v. Abdul Ghafoor 1992 SCMR 2162; Abdul Rehman v. I.-G. of Police and 2 others PLD 1995 SC 546; Muhammad Ibrahim v. Pakistan Oil Seeds Development Board and others 2006 SCMR 95; Muhammad Yaqoob v. D.P.O. Sahiwal and 2 others 2006 SCMR 310 and Raza Hussain Shah v. S.S.P. (Investigation) and others C.P. No.2559-L of 2003 ref.

Muhammad Muzaffar Khan's case PLD 1959 SC 9; I.A. Sharwani's case 1991 SCMR 1041; Messrs Airport Support Services v. Airport Manager, Quaid-e-Azam International Airport Karachi and others 1998 SCMR 2268 and Zain Yar Khan v. Chief Engineer CRBC, WAPDA, D.I. Khan and another 1998 SCMR 2419 rel.

(b) Administration of justice---

----No one should be penalized for the act of public functionaries.

(c) Administration of justice---

----Each and every case would be decided on its own peculiar circumstances and facts.

Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 rel.

Ch. Muhammad Anwar Bhinder, Senior Advocate Supreme Court and Ch. M. Anwar Khan, Advocate-on-Record for Petitioner (in C.P. No.276-L of 2005).

Rana Safdar Ali Asif, Advocate Supreme Court and Faizur Rehman, Advocate-on-Record for Petitioner (in C.P. No.2703-L of 2003).

Hafiz Tariq Naseem, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioner (in C.P. No.367-L of 2004).

Pervaiz Inayat Malik, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioner (in C.P. No.51-L of 2005).

Muhammad Tahir Ch. Advocate Supreme Court and Mehmoodul Islam, Advocate-on-Record for Petitioner (in C.P. No.83-L of 2005).

Hafiz Tariq Naseem, Advocate Supreme Court for Petitioner (in C.P. No.151-L of 2005).

Haji M. Rafi Siddiqui, Advocate-on-Record for Petitioner (in C.P. No.158-L of 2005).

Tanvir Ahmad, Advocate-on-Record for Petitioner (in C.P. No.193-L of 2005).

Petitioner in person (in C.P. No.201-L of 2005).

Ch. Muhammad Yaqoob Sabir, Advocate Supreme Court for Petitioner (in C.P. No.211-L of 2005).

Hafiz Tariq Naseem, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioner (in C.P. No.217-L of 2005).

Abid Saqi, Advocate Supreme Court and Mehmoodul Islam, Advocate-on-Record for Petitioner (in C.P. No.220-L of 2005).

Tanvir Ahmad, Advocate-on-Record for Petitioner (in C.P. No.315-L of 2005).

Sh. Masud Akhtar, Advocate-on-Record (absent) for Petitioner (in C.P. No.348-L of 2005).

Ch. Muhammad Akbar Gill, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioner (in C.P. No.435-L of 2005).

Ch. M. Hanif Zahid, , Advocate-on-Record for Petitioner (in C.P. No.449-L of 2005).

Sh. Masud Akhtar, Advocate-on-Record (absent) and Munn. Ahmad in person (in C.P. No.548-L of 2005).

Hafiz Tariq Naseem, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioner (in C.P. No.755-L of 2005).

Ch. Manzoor Hussain Basra, Advocate-on-Record for Petitioner (in C.P. No.1337 -L of 2005).

Hafiz Tariq Naseem, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioner (in C.P. No.1404-L of 2005).

Ch. Muhammad Anwar Khan, Advocate-on-Record for Petitioner (in C.P. No.1440-L of 2005).

Rana Safdar Ali Asif, Advocate Supreme Court and Faizur Rehman, Advocate-on-Record for Petitioner (in C.P. No.1497-L of 2005).

S.M. Tayyab, Senior Advocate Supreme Court and Ch. M. Anwar Khan, Advocate-on-Record for Petitioner (in C.P. No.90-L of 2006).

Hafiz Tariq Naseem, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioner (in C.P. No.121-L of 2006).

Muzammil Akhtar Shabbir, Advocate Supreme Court and Haji M. Rafi Siddiqui, Advocate-on-Record for Petitioner (in C.P. No.168-L of 2005).

Aamir Rahman, Additional Advocate-General, Punjab, Muhammad Hanif Khattana, Additional Advocate-General, Punjab, Muhammad Akbar Tarar, Additional Advocate-General Punjab, Akhtar Ali Qureshi, Assistant Advocate-General Punjab and Mian Ghulam Hussain Advocate Supreme Court for official Respondents.

Date of hearing: 14th February, 2006.

2006 S C M R 504

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Nasir-ul-Mulk, JJ

TAZA GUL and others----Appellants

Versus

Haji FAZAL SUBHAN----Respondent

Civil Miscellaneous Applications Nos.252 of 2003 and 358 of 2004 in Civil Appeal No.1867 of 2003, decided on 23rd January, 2006.

Constitution of Pakistan (1973)---

----Arts. 185(2)(d)(e) & 185(3)---Supreme Court Rules, 1980, O.XII, R.2---Petition for leave to appeal, conversion into direct appeal---Limitation---Condonation of delay---Mistake of Court---Valuation of the suit in plaint was Rs.6750 but market value of the suit property at the time of institution of the suit was much more than Rs.50,000---Petitioners, instead of filing appeal under Art.185(2)(d)(e) of the Constitution, filed petition for leave to appeal under Art.185(3)---At the time of filing of the petition, office did not raise any objection to the maintainability of the petition but after publication of the judgment of Supreme Court in case titled Muhammad Inayat v. Fateh Muhammad, reported as 2003 SCMR 875, petitioners filed application for converting the petition for leave to appeal into appeal under Art.185(2)(d)(e) of the Constitution---Petitioners also filed application for condonation of delay, as the direct appeal was barred by 29 days.---Validity---No person should suffer for the mistake of Court---Office entertained the petition for leave to appeal without any exception, therefore, the petitioners could not be made to suffer on account of misconception of law and confusion of the legal position in the mind of the members of the Bar for a long time---Petitioners were not guilty of negligence or recklessness in the matter of prosecuting their remedy before Supreme Court---Present case being of a bona fide error, sufficient cause had been made out for the exercise of discretion in favour of the petitioners in the matter of extension of time-=-Period of limitation for filing direct appeal was extended and the petition for leave to appeal was converted into appeal--Application was allowed.

Muhammad Inayat v. Fateh Muhammad 2003 SCMR 875 fol.

Zafar Iqbal Hameed Khan v. Ashiq Hussain 2005 SCMR 1371 distinguished.

Muhammad Munir Peracha, Advocate Supreme Court for Appellants.

Gulzarin Kiani, Advocate Supreme Court for Respondents.

Date of hearing: 23rd January, 2006.

2006 S C M R 508

[Supreme Court of Pakistan]

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

MUSHTAQ HUSSAIN QAZI, ADDITIONAL COMMISSIONER OF INCOME TAX, KARACHI----Petitioner

Versus

AUTHORIZED OFFICER, THE CHAIRMAN, CENTRAL BOARD OF REVENUE, GOVERNMENT OF PAKISTAN, ISLAMABAD and 2 others----Respondents

Civil Petition for Leave to Appeal No.977-K of 2001, decided on 24th July, 2002.

(On appeal from the judgment, dated 17-9-2001, passed by the Federal Service Tribunal, Islamabad, in Appeal No.308(K) of 1998).

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

----Rr. 3(b)(c), 4(1)(a)(ii), 5 & 6-Government Servants (Conduct) Rules, 1964, Rr.11 & 12(2)---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art.212(3)---Withholding of one annual increment---Penalty of withholding of one annual increment for a period of 3 years was imposed upon petitioner after issuing him show-cause notice, charge-sheeting him and holding inquiry against him on charge of misconduct because of being corrupt and his failure to file annual declaration of his assets---Allegations against petitioner had fully been proved and impugned order passed against petitioner was well reasoned and was based on law---Question of general public importance as contemplated under Art.212(3) of the Constitution being not involved in petition for leave to appeal, said petition, which otherwise was barred by time, was dismissed and leave to appeal was declined:

Muhammad Saleem v. Superintendent of Police PLD 1992 SC 369; Imtiaz Ahmed v. Ghulam Ali PLD 1963 SC 382; A.U. Musarrat v. Government of West Pakistan PLD 1977 SC 24; M.A. Rahman v. Federation of Pakistan 1988 SCMR 691 and Samiuddin Qureshi v. Collector of Customs PLD 1989 SC 335 ref.

Muhammad Naseem, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 24th July, 2002.

2006 S C M R 512

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and Tassadduq Hussain Jillani, J

RAFIQUE BIBI----Petitioner

Versus

MUHAMMAD SHARIF and others----Respondents

C.P. No.84-L of 2006, decided on 31st January, 2006.

(On appeal from the order of the Lahore High Court dated 7-11-2005 passed in Writ Petition No.12603 of 2005).

Penal Code (XLV of 1860)---

----Ss. 420, 467, 468, 471 & 109---Prevention of Corruption Act (II of 1947), S.5---Constitution of Pakistan (1973), Art.199---Quashing of F.I.R.---Constitutional jurisdiction of High Court---Factual controversy---Delay in registration of F.I.R.--Right of women in immovable property, protection of---Complainant got registered F.I.R. against accused persons on the allegation of manipulation in revenue record and depriving lady of immovable property---High Court in exercise of constitutional jurisdiction quashed the F.I.R. on the grounds that it was registered with a delay of 26 years with mala fide intention and matter was of civil nature---Validity---Effect of lodging F.I.R. with delay was always left to be considered by Trial Court seized of the matter---Delay in lodging F.I.R. had not been considered fatal in every case by superior Courts---If lodging of F.I.R. with delay was explained convincingly then the Court would not terminate the proceedings on such score---Question of satisfying the delay entirely related to the factual aspect of the matter---No bar existed to initiate both the proceedings i.e. civil and criminal simultaneously---Mala fide was a question of fact which required proof by producing evidence---Supreme Court had always emphasized for the protection of rights of women particularly relating to landed property---Supreme Court converted petition for leave to appeal into appeal and set aside the judgment passed by High Court---Appeal was allowed.

M. Aslam Zaheer v. Ch. Shah Muhammad and another 2003 SCMR 1691; Government of West Pakistan 'and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 and Mst. Fazal Jan v. Roshan Din and 2 others PLD 1992 SC 811 rel.

Malik Abdul Wahid, Advocate Supreme Court and Haji M. Rafi Siddiqui, Advocate-on-Record along with Petitioner.

Abdul Wahid Ch., Advocate Supreme Court and Ch. M. Anwar, Advocate-on-Record for Respondent No.1.

Respondent No.2 in person.

Khan Saleem Mitha, Advocate Supreme Court for the State.

Date of hearing: 31st January, 2006.

2006 S C M R 518

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Raja Fayyaz Ahmed, JJ

GOVERNMENT OF N.-W.F.P. through Secretary, Education Department and 2 others----Petitioners

Versus

AMIL KHAN WAZIR, Director, Physical Education Government Postgraduate College, Abbottabad----Respondent

Civil Petition No.779-P of 2003, decided on 8th November, 2005.

(On appeal from the judgment, dated 2-9-2003 passed by the learned N.-W.F.P. Service Tribunal, Peshawar in Appeal No.2088 of 2000).

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

----S. 4---Declaration, seeking direction to authorities---Jurisdiction of Service Tribunal---Grievance of civil servant was that Government of North-West Frontier Province had not issued notification in consonance with the education policy whereas the Government of Punjab had done so---Civil servant had sought declaration from Service Tribunal that refusal on the part of the concerned department to re-designate and restructure the service cadre of Directors of Physical Education in equal grades as compared to college lecturers of general cadre similarly placed and situated was illegal, mala fide and violative of the Constitution and on such declaration appropriate order be issued to the authorities---Civil servant also sought move-over from BPS-18 to BPS-19 with all back benefits---Service Tribunal allowed the appeal, directed the authorities to issue notification in consonance with education policy and the civil servant was granted such move-over with all back benefits---Validity---Circumstances of the case fell beyond the scope of provisions of S.4 of North-West Frontier Province Service Tribunals Act, 1974, within which the Tribunal had to exercise its jurisdiction---Tribunal on the one hand accepted the appeal by granting the relief as prayed for including the grant of BPS-18 to the civil servant and move-over to BPS-19 with all back benefits without examining the case of civil servant on merits as to his entitlement---Service Tribunal transgressed the authority vested in it to be exercised squarely within the purview of S.4 of North-West Frontier Province Service Tribunals Act, 1974, by directing administrative departments of Government to formulate a policy in line with the service structure notified for Directors Physical Education on the pattern of Punjab Government or Federal Government before the specified date, failing which the pattern / policy of Punjab Government would be deemed to have been adopted in letter and spirit---Such could not have been done in the lawful exercise of powers by Service Tribunal to substitute its own decision for that of the Government of North-West Frontier Province to be taken and exercised by it in accordance with law, after taking into account all the pros and cons of the matter involving financial and administrative implications including inter se seniority of the incumbents etc.---Service Tribunal without applying its mind to the facts of the case, scope of powers exercisable by it under the law passed a sweeping judgment in violation of law, which could not be allowed to hold the field on any ground---Supreme Court converted petition for leave to appeal into appeal and judgment passed by Service Tribunal was set aside---Appeal was allowed.

State Bank of Pakistan v. Khyber Zaman and others 2004 PLC (C.S.) 1213 ref.

M. Bilal, Senior Advocate Supreme Court for Petitioners.

Roohul Amin, Advocate Supreme Court/Advocate-on-Record for Respondent.

Date of hearing: 8th November, 2005.

2006 S C M R 526

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Raja Fayyaz Ahmed, JJ

Messrs NIDA-I-MILLAT (PVT.) LTD., LAHORE----Petitioner

Versus

COMMISSIONER OF INCOME-TAX, ZONE NO.1, LAHORE----Respondent

Civil Petition No.189-L of 2001, decided on 6th February, 2006.

(On appeal from the judgment, dated 2-10-2000, passed by the Lahore High. Court, Lahore in C.T.R. No.24 of 1989).

Income Tax Ordinance (XXXI of 1979)---

----S. 136---Constitution of Pakistan (1973), Art.185 (3)---Appeal to High Court-Issue not raised before Income Tax Appellate Tribunal---High Court not giving any finding on such issue---Grievance of assessee was that out of three questions High Court has replied two, while no finding was given, on the third question---Validity---At no stage of proceedings any question had arisen whether assessee, being a limited company, was a person incapable of incurring expenses on travelling, telephone and the like, which was liable to be deleted and disallowed for the purpose of computing taxable income of the assessee---Other two questions were answered by High Court in affirmative as the amount of gratuities payable to employees was a proper charge on the income of the assessee and was, therefore, admissible as an expense---High Court was justified in taking the view that the third question was never raised before the Tribunal for the purpose of S.136 of Income Tax Ordinance, 1979---Judgment of High Court was correct to which no exception could be taken---Leave to appeal was refused.

Commissioner of Income Tax v. Oriental Dyes and Chemical Co. Ltd. (1992) 65 Tax 254; Muhammad Ashiq Haji Dost Muhammad v. Abdul Ghani PLD 1960 Kar. 155; Master Chiragh Din v. Abdul Hakim and another PLD 1974 Lah. 370; Messrs Ahmad Karachi Halva Merchants and Ahmad Food Products v. The Commissioner of Income Tax, South Zone, Karachi 1982 SCMR 489 rel.

Shahbaz Butt, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Petitioner.

M. Ilyas Khan, Senior Advocate Supreme Court and Ch. M. Aslam Chatta, Advocate-on-Record for Respondent.

Date of hearing: 6th February, 2006.

2006 S C M R 528

[Supreme Court of Pakistan]

Present: Javed Iqbal and Ch. Ijaz Ahmad, JJ

MUHAMMAD AMIN KALUS and others----Petitioners

Versus

PUNJAB LOCAL GOVERNMENT BOARD and others----Respondents

Civil Petitions Nos.343-L and 603-L of 2005, decided on 25th January, 2006.

(On appeal from the judgment, dated 9-2-2005 of the Punjab Service Tribunal, Lahore, passed in Appeals Nos.285 and 1496 of 2004).

Punjab Local Councils Servants (Efficiency and Discipline) Rules, 1981---

------R. 4---Punjab Local Government Ordinance (VI of 1979), S.44--Punjab Local Government Ordinance (XIII of 2001), S.196(ii)---Punjab Service Tribunals Act (IX of 1974), S.4---Dismissal from service---Local Council servant---Dismissal of appeal by Service Tribunal---Supreme Court granted leave to appeal to consider questions as to whether Service Tribunal could have refused to exercise its jurisdiction under S.4 of Punjab Service Tribunals Act, 1974 by ignoring the provisions as enumerated in S.44 of Punjab Local Government Ordinance, 1979, whereby members of Local Council services were given the status of "Civil Servants" enabling them to approach Service Tribunal for redressal of their grievances; what would be the import, impact and effect of repeal of Punjab Local Government Ordinance, 1979 by means of Punjab Local Government Ordinance, 2001, which was not given retrospective effect; whether Service Rules framed under Punjab Local Government Ordinance, 1979 were saved pursuant to the provisions of 5.196(ii) of Punjab Local Government Ordinance, 2001 and in case answer was in affirmative, what would be its effect; whether the date of initiation of disciplinary proceedings against petitioner would be material or the date i.e. 10-9-2003, when action was finalized and Punjab Local Government Ordinance, 2001 was operative and whether impugned judgment was in consonance with law laid down in P.I.A. Corporation v. Pak Saaf Dry Cleaners PLD 1981 SC 553 and Adnan Afzal v. Sher Afzal PLD 1969 SC 187.

P.I.A. Corporation v. Pak Saaf Dry Cleaners PLD 1981 SC 553 and Adnan Afzal v. Sher Afzal v. Sher Afzal PLD 1969 SC 187 ref.

Abdul Sami Khawaja, Advocate Supreme Court and Mehmoodul Islam, Advocate-on-Record for Petitioner (in C.P. No.343-L of 2005).

Ch. Manzoor Hussain Basra, Advocate Supreme Court and A.H. Masood, Advocate-on-Record for Petitioner (in C.P. No.603-L of 2005).

Dr. Qazi M. Mohyuddin, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Respondents (in both petitions.).

Date of hearing: 25th January, 2006.

2006 S C M R 531

[Supreme Court of Pakistan]

Present: Javed Iqbal and Ch. Ijaz Ahmad, JJ

WARRIACH ZARAI CORPORATION----Petitioner

Versus

F.M.C. UNITED (PVT.) LTD.----Respondent

Civil Petition No.3119-L of 2004, decided on 6th February, 2006.

(On appeal from the order, dated 21-9-2004 of the Lahore High Court, Lahore, passed in Civil Revision No.1879 of 2004).

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

----S. 12(2)---Application under S.12(2), C.P.C.-Not obligatory for Court to frame issues and record evidence in each case---Such application could be decided on basis of available evidence and relevant record, if considered sufficient by Court---Framing of issues and recording of evidence would depend on circumstances of each case, nature of alleged fraud and decree so obtained---Principles.

Framing of issues and recording of evidence is not obligatory for Court to decide application under section 12(2), C.P.C., which can be rejected on the basis of available evidence and relevant record, if it is considered sufficient to decide such` application. Primarily, it is the satisfaction of Court either to frame issues, record evidence or decide such application as may be deemed fit and proper after considering the circumstances of each case. No yardstick can be fixed for adjudication of such application.

Framing of issues depends on the circumstances of each case, nature of alleged fraud and the decree so obtained. Framing of issues in every case to examine the merits of such application would certainly frustrate the object of section 12(2), C.P.C. which is to avoid protracted and time consuming litigation and to save the genuine decree-holder from grave hardships, ordeal of further litigation, extra burden on their exchequer and simultaneously to reduce unnecessary burden on the Courts below, which are already over-burdened.

Ghulam Muhammad v. M. Ahmed Khan 1993 SCMR 662 ref.

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

----S. 12(2) & O.XXXVII, R.3---Suit for recovery of money based on negotiable instrument---Non-filing of written statement by defendant after availing various opportunities---Decree in suit---Application under S.12(2), C.P.C. for setting aside such decree---Maintainability---Such deliberate omission or intentional lapse on part of defendant could not be rectified by exploiting provision of S.12(2), C.P.C.---Such decree had not been obtained by employing deceitful means or through fraud---Such application was dismissed in circumstances.

Mst. Ume Kalsoom v. Zahid Bashir through Legal Heirs and another 1999 SCMR 1696; Abdul Razzaq v. Muhammad Islam and 3 others 1999 SCMR 1714; Mrs. Amina Bibi through General Attorney v. Nasrullah and others 2000 SCMR 296 and Nazir Ahmed v. Muhammad Sharif and others 2001 SCMR 46 rel.

Ch. Muhammad Hanif Zahid, Advocate Supreme Court/Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 6th February, 2006.

2006 S C M R 535

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Raja Fayyaz Ahmed, JJ

INAYATULLAH and others----Petitioners

Versus

DIRECTOR-GENERAL and others----Respondents

Civil Petitions Nos.1032 and 1033 of 2003, decided on 8th November, 2005.

(On appeal from the judgment, dated 5-3-2003 of the Federal Service Tribunal, Islamabad passed in Appeals Nos.642 and 643(R)/CS of 2001).

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

----Arts. 4, 25 & 212 (3)---Notification No. F-3-12/96-SA(FDF)A-III, dated, 4-9-2000--Restructuring of general cadre---Four-Tier Structure Scheme---Reasonable classification, principle of---Directors Physical Education (DPEs) and Physical Training Instructors (PTIs) claimed to have been discriminated by not including them in the reorganizational set-up involving upgradation/re-designation of `General Cadre'---Validity---General cadre of school teachers, as it stood on 30-11-1999, had been re-structured by introducing revised 'Four-Tier Structure Scheme involved upgradation and re-designation of general cadre of school teachers having no nexus or relevancy to the cadre to which PTIs and other staff members including DPEs belonged---Claim of DPEs and PTls to have been discriminated, was devoid of any substance as it could be legitimately claimed that Notification No. F-3-12/96-SA(FDE)A-III, dated, 4-9-2000 ran counter to the letter and spirit of the judgment passed by Supreme Court in case titled Ahmed Hussain and others v. Director of Education Islamabad and others reported as 2001 SCMR 955; as such the judgment exclusively related to the entire class and category of school teachers of physical education cadre of Islamabad/Federal Area being run by Federal Government---Notification No. F-3-12/96-SA(FDE)A-III, dated, 4-9-2000, did not offend against the provisions of Art.25 read with Art.4 of the Constitution and was not discriminatory---Being member of the staff of Physical Education Section of Educational Institutions of Federal Government, Islamabad/Federal Area, throughout since its inception was and had been treated as separate group as a whole which never belonged or merged in general cadre of school teachers apparently by dint of their nature of duties i.e. a separate class---Notification No. F-3-12/96-SA(FDE)A-III, dated, 4-9-2000, exclusively related to school teachers of the general cadre and had not created or made any classification within the category or group of staff members of Physical Education/sections of PTIs and so on, similarly placed and situated, to be treated alike---Rationality of existence of general cadre of school teachers had never been questioned or assailed till date at any stage and all that could be gathered in view of the agitation of claim of the civil servants, was that by virtue of the Notification No. F-3-12/96-SA(FDE)A-III, dated, 4-9-2000, they claimed to have been deprived of further promotions---Such objection on the face of it, was without any substance for the reason that they admittedly did not belong to the group of school teachers from its very inception for decades and civil servants to a separate cadre of physical education, though enjoying similar pay scales, grades and posted in Federal Government Educational Institutions Islamabad/Federal Area---Civil servants undisputedly were a separate class and were not discharging exactly the same or similar nature of duties rather directly were concerned with the physical education of students, therefore, right from the very beginning they had been treated and belonged to a separate class of teachers of physical education---Such classification, decide old, right from its inception, was also not unreasonable nor offended the provisions of the Art.25 of the Constitution---Service Tribunal had rightly dismissed the appeal filed by civil servants---Leave to appeal was refused.

Ahmed Hussain and others v. Director of Education, Islamabad and others 2001 SCMR 955 and I. A. Sharwani and others v. Government of Pakistan 1991 SCMR 1041 rel.

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

----Arts. 4, 25 & 212 (3)---Notification No. F-3-12/96-SA(FDE)A-III, dated, 4-9-2000---Restructuring of general cadre---Four-Tiers Structure Scheme---Reasonable classification, principle of--Terms and conditions of service---Directors Physical Education (DPEs) and Physical Training Instructors (PTIs) claimed to have been discriminated by not including in re-organizational set-up involving upgradation/re-designation of General Cadre'---Contention of the civil servants was that they were similarly placed with the general cadre for the reason that they had been entrusted with the duties to take classes or deliver lectures to students on subjects---Validity---Contention of civil servants, that some of the PTIs were at time entrusted with the duties to take classes or deliver lectures to students on a subject in view of their higher educational qualification, would not per se entitle them to be treated as members of the school teachers belonging to general cadre, nor for such reason PTIs could be treated as having been merged into general cadre of school teachers---Notification No.F-3-12/96-SA(FDE)A-III, dated, 4-9-2000, exclusively related to re-organization and re-designation of various posts of teachers ofgeneral cadre' to which civil servants did not belong nor their terms and conditions of service had any nexus with the notification in question---Observations recorded by Service Tribunal in such behalf were based on correct application of law---Leave to appeal was refused.

Pakistan International Airlines Corporation through Chairman and others v. Samina Masood and others 2005 PLC (CS) 1335 distinguished.

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

----S. 4---Limitation Act (IX of 1908), 5.5---Appeal---Limitation---Condonation of delay---Time-barred departmental appeal---Effect---Departmental appeal having not been filed by civil servants within the prescribed period of limitation, appeal filed before Service Tribunal would be incompetent-No reason was available for condonation of such delay in filing the appeal beyond the period of limitation before the Tribunal on any ground---Service Tribunal had appropriately rejected the application for condonation of delay---Appeal was rightly dismissed by Service Tribunal on the point of limitation.

State Bank of Pakistan v. Khyber Zaman and others 2004 PLC (C.S.) 1213 fol.

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

----S. 4---Service Tribunal---Jurisdiction---Service Tribunal has no jurisdiction to order or modify notification or to include teachers of physical education cadre in the general cadre of secondary and higher secondary school teachers.

(e) Service Tribunals Act (LXX of 197)---

----S. 4(1)---Appeal---Maintainability---No final order by departmental authority---Effect---If no final order whether original or appellate made by departmental authority in respect of the terms and conditions of the service of civil servants was passed, such case did not fall within the domain of the Service Tribunal within the purview of S.4(1) of Service Tribunals Act, 1973---Appeal before Service Tribunal was not maintainable.

Fazal Ellahi Siddiqui, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioners (in both civil petitions).

Nasir Saeed Sh., D.A.-G. for Respondents (in both civil petitions).

Dates of hearing: 7th and 8th November, 2005.

2006 S C M R 550

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Raja Fayyaz Ahmed, JJ

Syed FAKHAR IMAM SHAH and others----Petitioners

Versus

ABDUL HAQ (deceased) through L.Rs. and others----Respondents

Civil Petitions Nos.3919 to 3922-L of 2001, decided on 25th January, 2006.

(On appeal from the judgment, dated 20-11-2001 passed by the Lahore High Court, Multan Bench, Multan, in Writ Petitions Nos.2827 and 2938 of 1992).

(a) Land Reforms Regulation, 1972 (M.L.R. 115)---

----Para. 24---Sale of land in violation of provision of para.24 of M.L.R.115---Validity---Vendor would have no legal or moral justification to challenge validity of such sale---Such transaction as between vendor and vendee would not be altogether void even if there was violation of some provisions of M.L.R.115.

Mst. Zuhra Khatoon and 8 others v. The Member Land Commission, Rawalpindi 1985 SCMR 312 and Mst. Raj Bibi and 4 others v. Additional Chief Land Commissioner, Punjab and 2 others PLD 1975 Lah. 408 rel.

(b) Land Reforms Regulation, 1972 (M.L.R. 115)---

----Para. 24---Civil Procedure Code (V of 1908), O.XX, R.14---Pre­emption decree regarding sale of land violative of provisions of Para.24 of M.L.R.115---Validity---Para.24 of M.L.R.115 placed restrictions more on a vendor than a vendee---Vendor could not take any advantage of his own wrong being in part delicto---Right of pre-emption of pre-emptor could not be defeated merely on the ground that sale of land suffered from some defect---Pre-emption decree would not be treated to be a sale as adjudication by Court and enforcement of a right took place under a different law.

Abdul Karim v. Fazal Muhammad Shah PLD 1967 SC 411 and Abdul Ghafoor and others v. Muhammad Ismail PLD 1982 SC 364 rel.

(c) Land Reforms Regulation, 1972 (M.L.R. 115)---

----Para. 24---Civil Procedure Code (V of 1908), O.XX, R.14---West Pakistan Land Revenue Act (XVII of 1967), S.163---Pre-emption decree regarding sale of land violative of provisions of Para.24 of M.L.R.115---Review of sale mutation by District Collector. on application of Informer (vendor's servant) after pre-emption decree---Validity---Vendor would have no legal or moral justification to challenge validity of such sale---Such transaction as between vendor and vendee would not be altogether void even if there was violation of some provisions of M.L.R.115---Right of pre-emption of pre-emptor could not be defeated merely on the ground that sale of land suffered from some defect---Pre-emption decree would not be treated to be a sale as adjudication by Court and enforcement of a right took place under a different law---Pre-emptor had not been impleaded in such application---District Collector had passed impugned order without issuing notice or affording opportunity of hearing to pre-emptor/decree-holder, whose vested rights were to be adversely affected---Informer had sought review of mutation just to defeat pre-emption decree---Provision of Para.24 of M.LR.115 had not been contravened---No indulgence could be shown to vendor or informer, whose conduct was not appreciable---Impugned order was set aside in circumstances.

Mst. Zuhra Khatoon and 8 others v. The Member Land Commission, Rawalpindi 1985 SCMR 312; Mst. Raj Bibi and 4 others v. Additional Chief Land Commissioner, Punjab and 2others PLD 1975 Lah. 408; Abdul Karim v. Fazal Muhammad Shah PLD 1967 SC 411 and Abdul Ghafoor and others v. Muhammad Ismail PLD 1982 SC 364 rel.

Shaukat Ali Mehr, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioners (in all cases).

Muhammad Khalid Mehmood Khan, Advocate Supreme Court for Respondents Nos. l to 4 (in C.Ps. Nos.3920 and 3922-L of 2001).

Jehangir A. Jhoja, Advocate Supreme Court for Respondent No.5).

Syed Feroze Shah for Legal Heir of Respondent No.5.

Date of hearing: 25th January, 2006.

2006 S C M R 554

[Supreme Court of Pakistan]

Present: Javed Iqbal and Ch. Ijaz Ahmad, JJ

SAMI ULLAH----Petitioner

Versus

INSPECTOR-GENERAL OF POLICE and others-Respondents

Civil Petition No.909-L of 2005, decided on 3rd February, 2006.

(On appeal from the judgment, dated 5-4-2005 of the Punjab Service Tribunal, Lahore, passed in Appeals Nos.2873, 2874 and 2876 of 2004).

(a) Punjab Police (Efficiency and Discipline) Rules, 1975---

----Rr. 3 & 4---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Police constable---Facilitating escape of convict, charge of---Acquittal of petitioner/constable from criminal case registered against him---Dismissal of appeal of constable by Service Tribunal---Validity---Custody of convict had been handed over to armed police officials with official vehicle to escort prisoners---Petitioner was a member of such police party and had stopped vehicle to facilitate escape of convict on a lame pretext that he wanted to ease himself---Vehicle could have been taken to the nearest police station to avoid any untoward incident--- Police party duly armed with sophisticated weapons had remained highly negligent and acted in a very irresponsible manner and failed to perform their duties diligently and with vigilance---Unarmed and handcuffed convict could not have been escaped without collective connivance and facilitation of police party---No individual member of police party could be absolved from its responsibility---Acquittal of petitioner from criminal case would have absolutely no bearing on the merits of the case---Petitioner, after comprehensive inquiry, had been found responsible not only for gross negligence, but active connivance and facilitation resulting in escape of convict---Supreme. Court dismissed petition and refused leave to appeal.

Muhammad Aslam v. Government of N.-W.F.P. 1998 SCMR 1993; Deputy I.-G. Police v. Anis-ur-Rehman Khan PLD 1985 SC 134; Muhammad Ayub v. Chairman E.B. WAPDA PLD 1987 SC 195 and Muhammad Nazir v. Superintendent of Police 1990 SCMR 1556 rel.

(b) Civil service---

----Disciplinary proceedings, initiation of---Acquittal of civil servant from criminal case---Effect---Such acquittal would have absolutely no bearing on merits of the case.

Muhammad Aslam v. Government of N.-W.F.P. 1998 SCMR 1993; Deputy I.-G. Police v. Anis-ur-Rehman Khan PLD 1985 SC 134; Muhammad Ayub v. Chairman E.B. WAPDA PLD 1987 SC 195 and Muhammad Nazir v. Superintendent of Police 1990 SCMR 1556 ref.

Talal Farooq Sheikh, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 3rd February, 2006.

2006 S C M R 558

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

AAMER SHAHZAD----Petitioner

Versus

MUHAMMAD ASIM and another----Respondents

Criminal Petition No.166-L of 2005, decided on 5th July, 2005.

(On appeal from the judgment, dated 14-3-2005 passed in Criminal Miscellaneous No.1552-B of 2005 by Lahore High Court, Lahore).

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.337-A(ii)---Constitution of Pakistan (1973), Art.185(3)---Cancellation of bail, refusal of---High Court in granting bail to accused was stated to have been misled in observing that the injury attributed to accused by means of hatchet on the person of the complainant was not reflected in the F.I.R. and the Medico-legal report---Perusal of record including the Medico-legal certificates showed that it was a bona fide slip of pen or a clerical error, which did not invalidate the essence of the impugned order of High Court---Investigation in the case had been completed and the accused was behind the bars awaiting his trial along with his co-accused---Discretion exercised by High Court in granting bail to accused did not suffer from any error of law or jurisdiction---Leave to appeal was refused to complainant in circumstances and the petition was dismissed accordingly.

N.A. Butt, Advocate Supreme Court for Petitioner.

Dil Muhammad Tarar, Advocate Supreme Court for the State.

Hasnaat Ahmad Khan, Advocate Supreme Court for Respondent No.1.

Date of hearing: 5th July, 2005.

2006 S C M R 559

[Supreme Court of Pakistan]

Present: Javed Iqbal and Ch. Ijaz Ahmad, JJ

MUHAMMAD MUKHTAR----Petitioner

Versus

MEDICAL SUPERINTENDENT, SERVICES HOSPITAL, LAHORE and another----Respondents

Civil Petition No.384-L of 2005, decided on 26th January, 2006.

(On appeal from the judgment, dated 14-1-2005 of the Punjab Service Tribunal, Lahore, passed in Appeal No.2599 of 2004).

(a) Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----Rr. 3, 4 & 6---Removal from service---Wilful absence from duty---Initial leave for three months was granted to civil servant to perform "Umra" which was got extended for further three months---Civil servant, after availing six months leave did not join duty, but sought two years more extension in leave, which was not sanctioned by authority---Charge-sheet was sent to civil servant on home address, which was followed by two reminders and substituted service---Civil servant neither replied charge-sheet nor associated in proceedings---Absence of civil servant from duty was wilful and he had not been condemned unheard.

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

---S. 4---Constitution of Pakistan (1973), Art.212(3)---Appeal before Service Tribunal---Limitation---Condonation of delay---Sufficiency of cause for condonation of delay being question of fact would fall within jurisdiction of Service Tribunal---Discretion for condoning delay, if once exercised, could not be reversed without any lawful justification.

Ali Hassan Rizvi v. Islamic Republic of Pakistan 1986 SCMR 1086; Muhammad Azhar Khan v. Service Tribunal Islamabad 1976 SCMR 262; Yousaf Hussain Siddiqi v. Additional Settlement and Rehabilitation Commissioner 1976 SCMR 268; Zahida v. Deputy Director 1990 SCMR 1504; WAPDA v. Abdul Rashid Dar 1990 SCMR 1513; Sher Bahadur v. Government of N.-W.F.P. 1990 SCMR 1519 ref.

Ch. Muhammad Amin Javaid, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 26th January, 2006.

2006 S C M R 562

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Mian Shakirullah Jan, JJ

Major ((Retd.) BARKAT ALI and others---Petitioners

Versus

QAIM DIN and others---Respondents

Civil Review Petitions Nos.88, 106 and 127 of 1998 in C.A. No.1203 of 1996, decided on 8th February, 2005.

(For review of judgment of this Court dated 4-7-1998 passed in Civil Appeal No.1023 of 1996).

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

----Arts. 188, 175(2) & 185(3)---Supreme Court Rules, 1980, O.XXVI, R.1 & O.XXXIII, R.6---Civil Procedure Code (V of 1908), O.XX, R.1 & O.XLVII, R.1---Review---Jurisdiction of Supreme Court to recall its earlier oral order and rehear matter on merits---Scope---Such powers available to Supreme Court would be exercised in order to foster justice, but in exceptional circumstances---For purpose of arriving at a just, fair and right conclusion, Supreme Court could obtain clarification on questions of fact and law---Neither parties would be prejudiced by rehearing of case, if no alteration was proposed in such earlier judgment---Supreme Court in exercise of its inherent powers could make such orders, if necessary, for ends of justice or preventing abuse of process of Court---Exercise of power by Supreme Court to rehear a case would be subject to jurisdiction conferred by the Constitution or by or under any law within purview of Art.175(2) thereof.

Vinod Kumar Singh v. Banaras Hindu University 1989 MLD 3215 ref.

(b) 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 by Supreme Court---Power to review earlier judgment and rehear decided case, exercise of---Principles stated.

Every judgment pronounced by Supreme Court would be presumed to be final, solemn and well-considered covering all points arising out of the case. If Court has taken a conscious and deliberate decision on a point of fact or law, then a review would not be competent.

The circumstance that the view canvassed in review petition is more reasonable than the view already accepted by Court in impugned order, of which review is sought, would not be sufficient to maintain a review petition.

The factum that a material irregularity was committed by Court would not be adequate enough to warrant a review of judgment, unless material irregularity be of a nature so as to convert the process of acting in aid of justice to a process of gross injustice. In such eventuality, review petition would be competent.

The fact that conclusion drawn in a judgment is wrong would not warrant its review, but if conclusion is wrong because something manifest has been ignored by Court or Court had not considered an important aspect of matter, then review would lie.

Supreme Court would not exercise its power of review as a routine matter to rehear a case already decided, but it can be pressed into service, where a glaring, omission on the face of record or patent error has crept in its judgment by judicial fallibility.

(c) Pleadings---

----Party would not be permitted to deviate from his/her pleadings.

(d) Pleadings---

---Court could not set up a different plea for a party and decide suit on its basis, muchless at appellate stage.

Azmat Ali v. Chief Settlement and Rehabilitation Commissioner PLD 1964 SC 260 and Jannat Bibi v. Sher Muhammad 1988 SCMR 1696 ref.

(e) Displaced Persons (Rehabilitation and Compensation) Act (XXVIII of 1958)-

--Ss. 10, 13 & Sched. Para.13---Displaced Persons (Land Settlement) Act (XLVII of 1958), Ss.10, 11, 15 & 16---Evacuee agricultural land not put to agricultural use since long, recorded as "Ghair Mumkin" in Revenue Record---Allotment of such land as evacuee building site to allottee against verified claims more than three decades earlier---Subsequent auction of such land and claim of its auction-purchaser---Validity---Allottee would be entitled to retain such land being evacuee property in recognition of his right---Such land stood permanently settled and absolutely vested in allottee by virtue of S.16 of Displaced Persons (Land Settlement) Act, 1958---Allottee could not be deprived of his valuable right to property acquired as of right merely at the instance of a party to whom same had been wrongly transferred through auction owing to lapse or connivance of public functionaries or otherwise---Allottee could not be non-suited on such hyper-technical ground, which would amount to reopening of past and closed transaction leading to grave injustice---Allottee had disposed of land in favour of third party, who had raised huge construction thereon by investing a lot of amount---Auction-purchaser could be compensated by offering alternate property in order to maintain balance and to do complete justice between parties.

Syed Zulfiqar Ali Shah v. Ch. Muhammad Hassan PLD 1971 Lah. 108 ref.

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

----Arts. 184, 185 & 199---Jurisdiction of High Court and Supreme Court as Court of Record---Scope---Such Courts would not interfere with or disturb settled position and established facts on record or exercise their discretionary jurisdiction tending to interfere with valuable, vested and guaranteed rights of citizens protected by the Constitution.

(g) Administration of justice---

----Superior Courts always act in aid of justice and may, at times refuse to interfere with an illegal order, if same results in grave injustice.

(h) Displaced Persons (Land Settlement) Act (XLVII of 1958)-----

--S. 16---Expression "notwithstanding anything contained in any other law for the time being in force" as used in S.15 of Displaced Persons (Land Settlement) Act, 1958---Effect---Such provision would override any other law for the time being in force and would have primacy over any other law relating to nature or status of property.

(i) Constitution of Pakistan(1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---High Court might not interfere with impugned order, notwithstanding its void or illegal dimension, if same would lead to greater injustice.

Secretary to Government of Punjab v. Ghulam Nabi PLD 2001 SC 415 ref.

Raja Muhammad Anwar, Senior Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Petitioner (in Civil Review Petition No.88 of 1998 in C.A. No.1203 of 1996).

S. M. Masood, Advocate Supreme Court for Petitioners (in Civil Review Petition No.106 of 1998 in C.A. No.1203 of 1996).

Sheikh Zamir Hussain, Advocate Supreme Court and Chaudhry Akhtar Ali, Advocate-on-Record for Petitioners (in Civil Review Petition No.127 of 1998 in C.A. No.1203 of 1996).

Sheikh Zamir Hussain, Advocate Supreme Court and Chaudhry Akhtar Ali, Advocate-on-Record for Respondents Nos.1 to 4 and 7 to 28 (in Civil Review Petition No.88 of 1998 in C.A. No.1203 of 1996).

Nemo for other Respondents (in Civil Review Petition No.88 of 1996 in C.A. No.1203 of 1996).

Raja Muhammad Anwar, Senior Advocate Supreme Court for Respondent No.1 (in Civil Review Petition No.106 of 1998). Sheikh Zamir Hussain, Senior Advocate Supreme Court for Respondents Nos.2 to 24 (in Civil Review Petition No.106 of 1998 in C.A. No.1203 of 1996).

Mehdi Khan Chauhan, Advocate Supreme Court for Respondent No.26 (in Civil Review Petition No.106 of 1998 in C.A. No.1203 of 1996).

Ashtar Ausaf Ali, Advocate-on-Record for Respondents (in Civil Review Petition No.127 of 1998 in C.A. No.1203 of 1996).

Date of hearing: 13th December, 2004.

2006 S C M R 577

[Supreme Court of Pakistan]

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

MUHAMMAD TASHFEEN and others-Petitioners

Versus

THE STATE and others---Respondents

Criminal Petitions Nos.127 and 183 of 2002, decided on 5th June, 2003.

(On appeal from the judgment dated 27-3-2002 of the Lahore High Court, Rawalpindi Bench passed in Cr. A. No.237 of 2001).

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

----Ss. 302/34, 324 & 449---Constitution of Art.185(3)--F.I.R. was promptly recorded nominating the accused with, specific roles of causing injuries to the deceased and the witnesses with their respective weapons in the shop of the complainant---Accused had admitted the occurrence taking the plea of self-defence---Record did not show that either the occurrence took place as suggested by the defence or it was a sudden fight---Admission of occurrence by the accused was a strong evidence of aggression against them and mere fact that brother of the accused had also suffered injuries in the occurrence was not sufficient to support the plea of self-defence of accused---Ocular account of two injured and natural witnesses being of unimpeachable character and confidence inspiring was alone sufficient to establish the charge, but medical evidence, motive and admission of accused had also strongly corroborated the same---Evidence was not clear as to who was exclusively responsible for causing fatal injury to the deceased and sentence of imprisonment for life awarded to accused was sufficient to meet the ends of justice---Convictions and sentences of accused were maintained and leave to appeal was refused accordingly.

(b) Penal Code (XLV of 1860)-

--Ss. 302/34, 324 & 449-Appreciation of evidence--Corroboration--Principles---Corroboration can be sought from the admission of accused; suggestion of the defence and the attending circumstances of the case.

Malik Rab Nawaz Noon, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioners in of 2002).

( Cr. P. No.127 Nemo for Respondent (in Cr.P, No.127 of 2002)

Tang Azam Chaudhry, Advocate Supreme Court for Petitioner (in Cr.P. No.183 of 2002).

Malik Rab Nawaz Noon, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondent No.1 (in Cr No.183 of 2002).

Date of hearing. 5th June, 2003.

2006 S C M R 586

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Falak Sher and M. Javed Buttar, JJ

MUHAMMAD DIN and others---petitioners

Versus

Mst. NAIMAT BIBI and others-Respondents

Civil Petition No.448(L) of 2002, decided on 6th October, 2004.

(On appeal from the judgment, dated 11-12-2001 of the Lahore High Court, Lahore passed in Civil Revision No.2066 of 1994)

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

---S. 115--Revision---Reappraisal of evidence--Conflicting findings on basis of same evidence by Trial Court and Appellate Court--Validity--High Court in revisional jurisdiction under S.115, C.P.C., would be justified to reappraise entire evidence.

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

---O. XIV, R.1--Qanun-e-Shahadat (10 of 1984), Art 117--Tide to suit property claimed by plaintiff through his predecessor--Framing of issue in negative form placing burden of proof of such fact on defendant---Validity---Where both parties led evidence, the question of burden of proof would not be of any significance--Mere negative form of issue could not be decisive--Plaintiff was bound to establish his title not through a negative fact, but through a positive fact capable of proof.

Mian Sher Alam, Senior Advocate Supreme Court for Petitioners.

M.A. Gohar, Advocate Supreme Court-and Tanvir Ahmed, Advocate-on-Record for Respondents.

Date of hearing: 6th October, 2004.

2006 S C M R 588

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

MUHAMMAD IDREES---Petitioner

Versus

GHULAM NABI---Respondent

Civil Petition No.511-L of 2001, decided on 29th January, 2003.

(On appeal from the judgment dated 14-11-2000 passed by the Lahore High Court, Lahore, in Civil Revision No.51 of 1989).

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

----S. 27---Registration Act (XVI of 1908), Ss.58, 59 & 60---Constitution of Pakistan (1973), Art.185(3)---Pre-emption suit---Sale through registered deed---Actual sale price, determination of-Trial Court passed decree for amount of Rs.21,000 being actual price as against amount of Rs.45,000 mentioned in the sale-decd---Such decree was affirmed by Appellate Court and High Court in appeal and revision respectively---Validity---Marginal witnesses to sale-deed had categorically stated that amount of Rs.21,000 and not Rs.45,000 had been paid as sale consideration---High Court was justified in taking the view that initial presumption arising out of endorsement of Sub-Registrar on registered sale-deed had been rebutted by marginal witnesses of sale­deed---Plaintiff had not produced any evidence in rebuttal---Impugned judgment did not suffer from any legal infirmity---Supreme Court dismissed petition.

Khalid Bashir v. Fazal Abbas 1981 SCMR 701 distinguished.

Ali Ahmad Malik, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 29th January, 2003.

2006 S C M R 590

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Fatak Sher, JJ

MUGHAL SURGICAL (PVT.) LTD. and others---Petitioners

Versus

PRESIDING OFFICER, PUNJAB LABOUR COURT NO.7 and others---Respondents

Civil Petitions Nos.2898-L to 2901-L of 2003, 279-L, 493-L, 68-L and 99-L to 102-L of 2004, decided on 23rd December, 2004.

(On appeal from the judgments/orders dated 16-9-2003 and 17-11-2003 of the Lahore High Court, Lahore passed in Writ Petitions Nos.5072, 5074, 5603, 4835, 8740, 11016, 11015, 11017, 11018 and 1027 of 2003, respectively).

(a) Payment of Wages Act (IV of 1936)---

----Preamble---Object of Payment of Wages Act, 1936---Payment of Wages Act had been enacted for benefit of workmen, which would be interpreted and applied in the spirit leading to its enactment.

Syed Match Company Limited's case 2003 SCMR 1493 ref.

(b) Appeal (Civil)---

----Right of appeal---Nature of---Such right is not a natural or an inherent right of litigants, but is a statutory right granted by different laws under different enactments---Such right must be considered and examined in the light of conditions prescribed by law granting such right---Every order and decision is not appealable under C.P.C. and Cr.P.C.---Granting of interim order without deposit of decretal amount is prohibited under some provisions of C.P.C.

Mian Abdul Quddoos Advocate Supreme Court with Mahmud?ul-Islam Advocate-on-Record for Petitioners (in C.Ps. Nos.2898 to 2901-L of 2003).

Rana Nasrullah Khan, Advocate Supreme Court with Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Petitioner (in C.P. No.279-L of 2004).

Mahmud-ul-Islam Advocate-on-Record for Petitioner (in C.P. No.493-L of 2004).

M. Saleem Sahgal, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Petitioners (in C.Ps. Nos.68 and 99 to 102-L of 2004).

Nemo for Respondents.

Date of hearing: 23rd December, 2004.

2006 S C M R 593

[Supreme-Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and M. Javed Butter, J

Prof. MUHAMMAD WALI KHAN----Petitioner

Versus

HAMDARD UNIVERSITY and others----Respondents

C.Ps. Nos.622 and 623-K of 2004, heard on 22nd November, 2005.

Sindh Service Tribunals Act (XV of 1973)---

----Ss. 2-A & 4---Constitution of Pakistan (1973), Art.212(3)---Civil Servant---Definition---Petitioner had contended that he being in employment of a private university, was a civil servant for the purpose of Sindh Service Tribunals Act, 1973 as according to its provisions an employee of an organization, which fell within the definition of Corporation, would be deemed to be a civil servant---Contention of petitioner was repelled because the university was a private university and by no stretch of imagination it could be considered a Corporation---Employees of such university, in circumstances, did not fall within the definition of civil servant---Tribunal, in circumstances, had rightly declined to grant relief to petitioner.

University of Balochistan through Registrar v. Saeed Muhammad Khan and-others 1986 SCMR 1063 ref.

Sheikh F.M. Javaid, Advocate Supreme Court and Ahmadullah Faruqi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 22nd November, 2005.

2006 S C M R 595

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Karamat Nazir Bhandari, JJ

FALAK KHURSHID---Appellant

Versus

FAKHAR KHURSHID and others----Respondents

Civil Appeal No.647 of 2002, decided on 24th January, 2006.

(On appeal from the judgment, dated 14-1-2002 in Civil Revision No.597 of 1997 passed by the Lahore High Court, Lahore).

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

----Ss. 12(2), 96 & 115---Dismissal of suit-Revision or appeal---Maintainability- -Revisional jurisdiction of High Court, exercise of--Appellant challenged ex parte judgment and decree passed in the suit where he was not made party by plaintiff--Appellant challenged the judgment and decree by filing application under S.12 (2) C.P.C. on the plea of fraud and misrepresentation---Trial Court keeping in view the evidence recorded by it, allowed the application and dismissed the suit---High Court in exercise of revisional jurisdiction allowed the revision and restored judgment and decree earlier passed by Trial Court-Plea raised-by appellant was that as order passed by Trial Court was appealable, therefore, revision was not competent---Validity---Trial Court, while disposing of application under S.12(2), C.P.C. allowed the same and dismissed the suit, which was followed by a decree which being on record against which an appeal under S.96, C.P.C. lay and not civil revision under S.115 C.P.C.---When Trial Court found, after recording of evidence, that judgment and decree was obtained by fraud and misrepresentation, he should have only allowed the application and not reversed/set aside the judgment and decree passed by it earlier, and allowed the parties opportunity to adduce evidence, after filing of written statement by the appellant and to dispose of the suit in accordance with provisions of Civil Procedure Code, 1908---Judgment and decree passed by High Court was set aside and the case was remanded to Trial Court--Appeal was allowed.

The Province of East Pakistan v. Muhammad Hossain Mia PLD 1965 SC 1(c); Haji Abdullah Khan and others v. Nisar Muhammad an and others PLD 1965 SC 690(c) and Dilbar Khan and others v. Government of N.-W.F.P. and others 1992 CLC 416 ref.

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

----S. 115---Revision---Scope---Revision lies to High Court against the decision or order of subordinate Court in which no appeal lies---Revision is competent only in non-appealable orders or decisions---Where appeal has been provided under the law, revision is not competent.

Municipal Committee, Bahawalpur v. Sh. Aziz Elahi PLD 1970 SC 506(a); Cantonment Board, Rawalpindi v. Muhammad Sharif through Legal Heirs PLD 1995 SC 472(a) and R.M.A.R.A. Adaikappa Chettiar and another v. R. Chandrasekhara Thevar AIR (35) 1948 PC 12 rel.

Ghulzarin Kiani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.

S.M. Masood, Advocate Supreme Court for Respondents.

Date of hearing: 24th January, 2006.

2006 S C M R 600

[Supreme Court of Pakistan]

Present: Javed Iqbal and Ch. Ijaz Ahmed, JJ

SECRETARY, EDUCATION (SCHOOLS), GOVERNMENT OF THE PUNJAB, LAHORE----Petitioner

Versus

MUHAMMAD AKHTAR, EX HEADMASTER----Respondent

Civil Petition No.2279-L of 2003, decided on 30th January, 2006.

(On appeal from the judgment, dated 2-5-2003 of the Punjab Service Tribunal, Lahore passed in Appeal No.1708 of 2001).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975-

----Rr. 2 (1), 3 & 4---Pension Rules, 1969, R.1.8---Delegation of Powers Rules, 1990, R.3(a)---Constitution of Pakistan (1973), Art.212(3)---Recovery of amount from gratuity of Headmaster---Misconduct, charge of---Service Tribunal dismissed appeal of Headmaster---Validity---Charge-sheet did not contain allegation of misappropriation or embezzlement against civil servant, but contained allegation of unauthorized withdrawal of amount spent on purchase of items without observing coda] formalities---Non-observance of coda) formalities was an ambiguous charge---Accusation and allegation must be of a specific nature enabling delinquent officer to furnish proper explanation---Proper sanction had been awarded for impugned purchases---Headmaster had been directed by Director, Education to release payment to contractors---Letter for cancellation of sanction was received, when payment qua bills concerning different items had already been made---Purchased items remained physically available and found mention in relevant purchase register---Headmaster was competent to incur expenditure upto R.3,00,000 vide Finance Department Circular Letter No.FD(FR-II)5/82, dated 1-11-1986---Joint inquiry had been conducted against dozen of Headmasters without specifying nature of allegation and following prescribed procedure, which had resulted in serious miscarriage of justice---Department had initiated disciplinary proceedings against Headmaster after one year of his retirement-Supreme Court dismissed petition and refused leave to appeal.

Malik M. Imtiaz Mahal, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 30th January, 2006.

2006 S C M R 605

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. M. Jared Buttar and Saiyed Saeed Ashhad, JJ

Dr. AZHAR ATTA MALIK----Petitioner

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU and another----Respondents

Criminal Petition No.251 of 2004, decided on 25th July, 2005.

(On appeal from the judgment, dated 27-4-2004 of the Lahore High Court, Lahore passed in Criminal Appeal No.1104 of 2002).

National Accountability Ordinance (XVIII of 1999)---

---S. 10---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal, refusal of---High Court had disposed of the appeal of accused in view of the request made on his behalf that he did not wish to challenge his conviction but only prayed for alteration in his sentence---Supreme Court was apprised that the counsel of the accused appearing in High Court had not pressed the appeal on merits against his directions---Said submission was unable to make the petition for leave to appeal competent before the Supreme Court, as the counsel was always authorized to make statement on behalf of the party for whom he was appearing---Petition for leave to appeal, thus, was not maintainable---Leave to appeal was declined accordingly.

Pervaiz Inayat Malik, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioner.

Naveed Saeed Khan, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for NAB.

Date of hearing: 25th July, 2005.

2006 S C M R 606

[Supreme Court of Pakistan]

Present: Javed Iqbal and Ch. Ijaz Ahmad, JJ

Syed NAZAR ABBAS JAFFRI----Petitioner

Versus

SECRETARY TO GOVERNMENT OF THE PUNJAB and another---Respondents

C.P. No.3109-L of 2004, decided on 13th February, 2006.

(On appeal from the order, dated 17-8-2004/23-8-2004 passed by the Punjab Service Tribunal, Lahore in Appeal No.1225 of 2004).

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

----Arts. 189 & 190---Judgment of Supreme Court---Non-observance of dictum of Supreme Court by State functionaries-Effect-Judgment of Supreme Court was binding on each and every organ of the State by virtue of Arts.189 and 190 of the Constitution---Non-observance of dictum laid down by Supreme Court was violation of Art.189 of the Constitution---Legislators and Executive had refused to give due respect to the dictum of Supreme Court, which was not congenial and conducive for the existence of the country, running the State smoothly with mutual co-ordination, respect and understanding and such situation would create chaos---Each organ must work within its limits prescribed by the Constitution.

(b) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975-

----R. 41(b)(i)---Award of major penalty to civil servant---Appointment under political pressure, cancellation of-Allegation against the civil servant was that he made no efforts to fill the vacant posts duly recommended by local representatives and cancelled such appointments---Authorities imposed major penalty of reduction of two stages in time scale but Service Tribunal converted the penalty to minor penalty of withholding of one increment for two years---Validity---MNAs/MPAs were not authorized under Punjab Civil Servants Act, 1974 and rules made thereunder to pass such like orders for appointment of Chowkidar or on any other post---Competent authority acted without lawful authority as it was a case of dictatorial misuse of powers and not independent discharge of function as depicted from one of the official letters on record---Such misuse of powers under the dictate of public representatives was invalid---Supreme Court converted the petition for leave to appeal into appeal and judgment passed by Service Tribunal as well the orders passed by Authorities were set aside---Appeal was allowed.

Zahid Akhtar's case PLD 1995 SC 530; Ghulam Mohiuddin's case PLD 1964 SC 829; Amanullah Khan's case PLD 1990 SC 1092; Abaidullah's case 1993 SCMR 1195; Gardhandas Bhangi's case AIR 1952 SC 100; Oriun Paper Mills' case AIR 1970 SC 1498 and Scam Labour Union's case (1946) 2 All ER 201 rel.

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

----Preamble---System of Trichotomy---Role of three organs of State---Scope---Scheme of the Constitution is based on Trichotomy---In the system of Trichotomy, the Judiciary has the right to interpret, the Legislator has right only to legislate and the Executive has to implement---Trichotomy of powers which is already delicately balanced in the Constitution, cannot be disturbed as it grants powers to each organ to decide the matters in its allotted sphere.

Zia-ur-Rehman's case PLD 1973 SC 49; Holy Book of Qur'an Sura Rehman; PLD 1958 SC 499 and Ch. Zahoor Elahi's case PLD 1975 .SC 383 rel.

Petitioner in person.

Ch. M. Sadiq, Additional Advocate-General, Punjab for Respondent.

Date of hearing: 13th February, 2006.

2006 S C M R 614

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza, Mian Shakirullah Jan and Nasir-ul-Mulk, JJ

ALLAH DIN & COMPANY----Appellant

Versus

TRADING CORPORATION OF PAKISTAN and others----Respondents

Civil Appeals Nos.767 and 768 of 2000, heard on 18th May, 2005.

(a) Arbitration Act (X of 1940)---

----S. 26-A---Constitution of Pakistan (1973), Art.185 (3)---Leave to appeal was granted by Supreme Court to consider; whether under the circumstances, High Court was not justified in disallowing certain amount which was awarded by arbitrator; whether award was in conflict with the provisions of S.26-A of Arbitration Act, 1940 and whether finding of Arbitrator on the point of damages was not in accordance with the law.

(b) Arbitration Act (X of 1940)---

----Ss. 17 & 26-A---Making award rule of Court---Failure to give reasons for findings in award---Effect---Court not agreeing with findings of arbitrator---Damages were awarded by arbitrator solely on the basis of statement of purchaser---Trial Court disagreed with such compensation for the reason that there was no evidence recorded to that effect---Rest of the findings of arbitrator were maintained and the award was made rule of the Court---Plea raised by purchaser was that Trial Court was not entitled to disagree with the findings of arbitrator---Validity---Finding of arbitrator on the issue of damages indicated absence of evidence on the basis of which he had awarded compensation---Arbitrator had awarded compensation simply on the ground that the purchaser was not -questioned on behalf of the department on the issue---Such failure by the department did not go to prove the loss caused to the purchaser---Burden was on the purchaser to have produced independent evidence of damage caused to his reputation and goodwill on account of non-performance of the contract by the department---Bald statement of purchaser that he had suffered loss on such account was not sufficient to establish the claim---High Court rightly denied damages for loss of goodwill and reputation---Court did not sit in appeal from the findings of arbitrator but at the same time it was empowered to reverse findings of arbitrator on any issue if the same did not find support from the evidence---Section 26-A of Arbitration Act, 1940, requiring Arbitrator to furnish reasons for his finding was to enable the Court to examine soundness of reasons---Supreme Court declined to interfere with the judgment of High Court as same did not suffer from any infirmity or illegality---Appeal was dismissed.

A. Qutubuddin Khan v. Karachi Electric Supply Corporation Ltd. Karachi 1980 CLC 1977; The Federation of Pakistan Chambers of Commerce and Industry v. Messrs Al Farooq Builders, Builders and Contractors NLR 2001 Civil 1 and Messrs Ibad & Company v. Province of Sindh through Secretary to the Government Communication and Works Department and 2 others PLD 1980 Kar. 207 ref.

M. Akram Zubairi, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellants.

Nasrullah Awan, Advocate Supreme Court.

Other respondents: Ex parte.

Date of hearing: 18th May, 2005.

2006 S C M R 619

[Supreme Court of Pakistan]

Present: Javed Iqbal and Ch. Ijaz Ahmad, JJ

Messrs STATE ENGINEERING CORPORATION LTD.----Petitioner

Versus

NATIONAL DEVELOPMENT FINANCE CORPORATION and others----Respondents

C.P. No.1441-L of 2004, decided on 7th February, 2006.

(On appeal from the order, dated 25-2-2004 passed by the Lahore High Court, Lahore in R.F.A. No.62 of 1998).

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

-----S. 126-'Guarantee'-Connotation-'Guarantee' is an undertaking by a third party for one of the parties to the contract whereby the third party binds itself to see that the promise or condition would be fulfilled according to covenant.

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

• -S. 9---Contract Act (IX of 1872), S.128---Constitution of Pakistan (1973), Art.185 (3)---Recovery of bank loan---Liability of guarantor/ surety---Suit was decreed in favour of bank against the borrower and guarantor---Petitioner being guarantor was aggrieved of the judgment and decree passed by High Court in exercise of banking jurisdiction---Validity---Liability of guarantor/surety was co-extensive with that of the principal debtor, unless it was otherwise provided by the contract as envisaged in S.128 of Contract Act, 1872---Guarantor and principal debtor were jointly and severally liable to pay the outstanding amount to the creditor---Guarantor could not shirk from the liabilities incurred by him through the execution of documents-Creditor's in an action against guarantor was merely required to show existence of liability of the principal debtor and occurrence of default or breach of terms leading to the liability---Defence based on technicalities, loss of procedure or covenants to which guarantor was not a party, could not be pressed into service by' guarantee---No infirmity or illegality in the judgment passed by High Court having been found by the Supreme Court and no question of law of public importance having been raised by the petitioner, leave to appeal was refused.

Rafique Hazquel Masih v. Bank Alfalah Ltd. and others 2005 SCMR 72=2005 CLD 95; Platinum Insurance Company Ltd. v. Daewoo Corporation PLD 1991 SC 1; Ram Sagar Singh v. Yogendra Narain Prasad Singh AIR 1975 Pat. 239; Ashrafi Rai v. Parsbadilal AIR 1959 M.P. 26; Dalchand v. State of Rajasthan AIR 1976 Raj. 112; Madho Sah v. Sitaram Sah AIR 1962 Pat. 405; Arumugham Chettiar v. Sadasiram AIR 1971 Mad. 321; Nagpur Nagrik Sahakari Bank Ltd. v. Union of India AIR 1981 A.B. 153; Budh Singh v. Mukhund Murailal AIR 1975 A.B. 201; Kali Cheran v. Abdul Rehman AIR 1918 PC 226 Central Exchange Bank Ltd. v. Mst. Zaitoon Begum and 2 others PLD 1968 SC 83 and Sree Meenakshi Mills Ltd. v. Ratilal Tribhovandas Thakar AIR 1941 Bonn. 108 rel.

(c) Pleadings---

---Parties are bound by their pleadings.

Mst. Murad Begum's case PLD 1974 SC 322 rel.

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

----Art. 185---New plea---Fresh plea cannot be raised before Supreme Court.

John E. Brown Lee v. Vivan Mac Milian AIR 1940 PC 219; Ashfaque-ur-Rehman v. Ch. Muhammad Afzal PLD 1971 SC 766 and Ganga Nath Sen v. Ram Jit Ray ILR (1942) 1 Cl. 11 rel.

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

----S. 141---Surety's right---Scope---So long as principal debtor is liable, the guarantor also agrees to be liable---Right has been conferred on surety by S.141 of Contract Act, 1872, to the benefit of every security which creditor has against principal debtor at the time when the contract of surety is entered into.

Citibank N.A. Newdehly v. Juggilal Kanilapat Jute Mills Co. Ltd. Kanpur AIR 1982 Dehly 487 rel.

(f) Constitution of Pakistan (1973)-

--Art. 185(3)---Petition for leave to appeal---Concurrent findings of fact by the Courts below---Scope---Supreme Court cannot interfere with the concurrent findings of the Courts below while exercising power under Art.185(3) of the Constitution.

Humayun and others v. The State 1986 SCMR 1987 and Evacuee Trust Property Board v. Muhammad Sharif 1984 Pakistan Supreme Court cases 1501 rel.

Sh. Shahid Waheed, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 7th February, 2006.

2006 S C M R 626

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Raja Fayyaz Ahmed, JJ

DEPUTY COLLECTOR, CENTRAL EXCISE AND SALES TAX, CUSTOMS HOUSE, LAHORE----Petitioner

Versus

Messrs ICI, PAKISTAN LIMITED, LAHORE ----Respondent

Civil Petition No.3068-L of 2001, decided on 7th February, 2006.

(On appeal from the order, dated 6-8-2001, passed by the Lahore High Court, Lahore in Writ Petition No.2087 of 1993).

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

----Ss. 33 & 34---Additional sales tax and penalty, imposition of---Principles---Manufacturer or producer of goods in appropriate case of default in payment of sales tax, can be burdened with additional sales tax under S.34 of Sales Tax Act, 1990, as well as penalty under S.33 of the Act, which does not necessarily follow that in every case such levy was automatic, requiring no determination at all.

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

----Ss. 33 & 34---S.R.O.No.1136(I)/90, dated 1-11-1990---Constitution of Pakistan (1973), Art.185(3)---Additional sales tax and penalty, imposition of---Authorities imposed additional sales tax and penalty on the assessee-Company for recovery of short paid sales tax---High Court in exercise of constitutional jurisdiction, set aside the levy of additional sales tax and surcharge---Validity---In case of failure of a registered person to pay sales tax within time, such person was also liable to pay additional tax and surcharge---Such liability being not automatic would be determined by appropriate authority as lo whether or not there was reasonable ground for default in payment of sales tax, which could be considered to be wilful and deliberate---Each and every case was to be decided on its merits as to whether evasion or iron-payment of tax was wilful or mala fide, decision of which would depend upon the question of recovery of additional tax---No material was available on record to the effect that the short payment of sales tax was mala fide or wilful act of omission on the part of the assessee-Company---high Court had justifiably allowed the constitutional petition of the company to which no exception could be taken---Leave to appeal was refused.

D.G. Khan Cement Company Limited and others v. Federation of Pakistan and others 2004 SCMR 456; Shamroz Khan and another v. Muhammad Amin and others PLD 1978 SC 89; Haji Abdul Razzak v. Pakistan through Secretary, Ministry of Finance, Islamabad and another PLD 1974 SC 5 and Muhammad Musa v. Settlement and Rehabilitation Commissioner and 2 others 1974 SCMR 352 rel.

Izharul Haque, Advocate Supreme Court and Mian Atta-ur-Rehman, Advocate Supreme Court for Petitioner.

Shahid Hamid, Senior Advocate Supreme Court for Respondent No.1.

Date of haring: 7th February, 2006.

2006 S C M R 630

[Supreme Court of Pakistan]

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

Messrs DAWOOD COTTON MILLS LTD.----Petitioner

Versus

SINDH LABOUR APPELLATE TRIBUNAL and others----Respondents

Civil Petitions Nos.309 to 319 of 2004, decided on 29th March, 2004.

(On appeal against the order, dated 26-1-2004 passed by High Court of Sindh Karachi in C.P. No. D-1124 of 1997).

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 37(3) & 38---Constitution of Pakistan (1973), Art.185(3)---Question was whether respondents were employees of the employer or the contractor---Determination---Labour Appellate Tribunal, on the basis of material available on record had concluded that respondents were employees of the employer---Such findings of fact had been confirmed by High Court who had undertaken the exercise to go through relevant provisions of law as well as evidence produced by the parties---Since both Courts had found that the respondents were employees of the employer and that contractor was not their employer; impugned judgment being unexceptionable would admit of no interference by Supreme Court in exercise of jurisdiction under Art.185(3) of the Constitution---Petition was dismissed.

Abrar Hussain Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 29th March, 2004.

2006 S C M R 631

[Supreme Court of Pakistan]

Present: Javed Iqbal and Ch. Ijaz Ahmad, JJ

SHAHID PERVAIZ alias SHAHID HAMEED----Petitioner

Versus

MUHAMMAD AHMAD AMEEN----Respondent

C.Ps. Nos.923, 924 and 925-L of 2005, decided on 15th February. 2006.

(On appeal from the order, dated 19-5-2005 passed by the Lahore High Court, Lahore in Civil Revisions Nos.315, 316, 317 of 2005).

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

------O. XXXVII, R.4---Constitution of Pakistan (1973), Art.185(3)---Ex parte decree, setting aside of---Negligence of defendant---Medical certificate---Defendant, after filing his written statement, absented from Trial Court, thus ex parte decree was passed against him---Four months after the, passing of ex parte decree, defendant filed application for setting aside the decree---Trial Court dismissed the application and the order of Trial Court was maintained by High Court in exercise of revisional jurisdiction---Validity---Defendant and his counsel were not vigilant to pursue and find out what happened on the date when they did not attend the Court---Medical certificate submitted by defendant was rightly ignored and discarded by High Court with cogent reason as the certificate was procured from private practitioner---Medical certificate did not show that the defendant was in such serious condition that he could not call his counsel to his house for consultation nor could speak to him on the telephone---Some person from the family could have been sent by the defendant to inquire from the counsel about the progress of the case---Courts below were not satisfied with the reasons stated by defendant in his affidavit in support of application under S.5 of Limitation Act, 1908---Defendant failed to point out any infirmity or illegality in the orders and judgments of the Courts below---Leave to appeal was refused.

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

----O. XXXVII, R.4---Limitation Act (IX of 1908), Art.164---Ex paste decree, setting aside of---Limitation---Computation---Defendant joined proceedings before Trial Court and afterwards on his absence, ex parte decree was passed---Defendant, after four months, filed application for setting aside ex parte decree, which application was dismissed being time barred---Validity---Thirty days' time was provided under Art.164 of Limitation Act, 1908, to defendant to file application for setting aside ex parte decree---Period of thirty days started from the date of decree, as the defendant had participated in the proceedings before the Trial Court---Application was rightly dismissed by the Trial Court.

Abdul Karim Jaffarani's case 1984 SCMR 568 rel.

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

----S. 5---Condonation of delay---Principles---Plea of valuable right and poverty---Validity---By lapse of time valuable right accrues to the other side and delay of each day has to be satisfactorily explained---Existence of valuable right of the party seeking condonation of delay is not a proper ground for condonation of delay in civil matters---Plea for condonation of delay on the ground of poverty is also not valid ground.

Hakim Abdul Rehman's case 1970 SCMR 582 rel.

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

----Art. 185(3)---Constitutional jurisdiction of Supreme Court, exercise of---Concurrent findings of fact by the Courts below---Effect---Supreme Court declines to interfere in concurrent findings of fact arrived at by the Courts below, while exercising power under Art.185(3) of the Constitution.

Muhammad Azim's case 1984 SCMR 1501 rel.

Sultan Ahmad Wattoo, Advocate Supreme Court with Mahmood A. Qureshi, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 15th February, 2006.

2006 S C M R 637

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Tassaduq Hussain Jillani, JJ

KHUDA BAKHSH and others----Petitioners

Versus

THE STATE----Respondent

Criminal Petition No.199-L of 2005, decided on 3rd August, 2005.

(On appeal from the judgment, dated 7-2-2005 of the Lahore High Court, Multan Bench, Multan, passed in Criminal Appeal No.59 of 2000 and Murder Reference No.162 of 2000).

Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan (1973), Art.185(3)---Accused, four real brothers, had killed 13 persons during night---Such occurrence could not have gone unwitnessed and the culprits could not have escaped unidentified---Complainant and the other eye-witness were independent witnesses of the occurrence having no reason or ill-will for malicious implication of the accused and their testimony was credible and reliable---Accused being no stranger to - the complainant, their identification, even during the night throe, could not have posed any problem for him, particularly when the occurrence had lasted for quite some time---Recovery of blood-stained weapons of offence and blood-stained clothes of the four accused and also the medical evidence had supported the ocular testimony---Valid motive was available to accused for committing the offence---Accused had killed their two uncles and all their descedants including children of 2 to 25 years of age---Perpetrators of such a dastardly crime deserved no mercy---Convictions and sentences of accused required no interference-Leave-to appeal was declined to accused accordingly.

Abdul Aziz Khan Niazi, Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for Petitioners.

Nemo for the State.

Date of hearing: 3rd August, 2005.

2006 S C M R 642

[Supreme Court of Pakistan]

Present: Javed Iqbal and Ch. Ijaz Ahmad, JJ

MAUZAM HANIF----Petitioner

Versus

SETTLEMENT OFFICER/COLLECTOR and another----Respondents

C.P. No.596-L of 2005, decided on 30th January, 2006.

(On appeal from the order, dated 30-3-2005 passed by the Punjab Service Tribunal Lahore in Appeal No.4866 of 2005).

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

---Art. 199---Constitutional jurisdiction of High Court---Nature---Constitutional jurisdiction is discretionary in character.

Principal King Edward Medical College, Lahore v. Ghulam Mustafa and others 1983 SCMR 196; Abdur Rashid v. Pakistan and others 1969 SCMR 141 and Nawab Syed Raunaq Ali. and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 rel.

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

---Art. 185(3)---Constitutional jurisdiction of Supreme Court---Concurrent findings of fact by the Courts below---Effect---Supreme Court cannot interfere with the concurrent findings of the Tribunals below.

Abdul Hameed's case 1973 SCMR 530 rel.

(c) Removal from Service (Special Powers) Ordinance (XVII of 2000)---

---S. 3---Constitution of Pakistan (1973), Arts.185(3) & 199---Constitutional jurisdiction of High Court under Art.199 of the Constitution---Scope---Dismissal from service---Appointment through misrepresentation---Domicile certificates from two districts---Petitioner was dismissed from service for the reason that he had two domicile certificates and applied for the post of Patwari, from both the districts---Service Tribunal dismissed the appeal of petitioner on the ground that petitioner had not attained the status of civil servant thus it had no jurisdiction---Dismissal order passed by the Authorities was maintained by High Court in exercise of constitutional jurisdiction---Validity---Word domicile must be construed keeping in view the purpose and object of recruitment policy---Policy makers allocated seats in each particular district with a condition that a person who had a domicile of a district was eligible to file an application for the appointment of the post in question---Domicile had a reference to the system of law by which a person was governed---Such system of law/policy prevailed all over that province---Petitioner did not challenge the viries of the policy of authorities, therefore, High Court was justified to non-suit the petitioner by virtue of his own conduct---Petitioner failed to point out that action of the Authorities was in violation of their duties, regulations and policy, as the same was a condition precedent to maintain a Constitutional petition before High Court---Constitutional jurisdiction being equitable jurisdiction, could not be exercised in favour of a person who had come to Court with gross negligence on account of his misconduct---Supreme Court declined to interfere with the judgment passed by High Court---Leave to appeal was refused.

Ali Mir's case 1984 SCMR 433; Mohsin Khan's case 1969 SCMR 306; Suleman's case 1970 SCMR 574 and Rana Muhammad Arshad's case 1998 SCMR 1462 rel.

(d) Equity---

----He who seeks equity, must come to Court with clean hands.

Sh. Naveed Shahryar, Advocate Supreme Court with Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 30th January, 2006.

2006 S C M R 646

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

YASIR KHAN---Petitioner

Versus

MUHAMMAD MASOOD-UR-RAUF---Respondent

C.P.L.A. No.2671-L of 2002, decided on 20th January, 2003.

(On appeal from the order dated 27-6-2002 passed in R.F.A. No.197 of 2002 of the Lahore High Court, Multan Bench).

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

----O. XXXVII, R.3 & O.XLI, R.5---Constitution of Pakistan (1973), Art.185(3)---Appeal against decree passed in suit for recovery of amount of dishonoured cheques---High Court suspended operation of decree subject to furnishing by appellant-Bank guarantee equal to decretal amount---Validity---Appellant had not denied issuance of cheques of different amounts on different dates---High Court had not committed illegality in passing impugned order---Supreme Court dismissed petition and refused leave to appeal.

Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Muhammad Rafiq Rajwana, Advocate Supreme Court with C.M. Latif, Advocate-on-Record for Respondent.

Date of hearing: 20th January, 2003.

2006 S C M R 647

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Tassaduq Hussain Jillani, JJ

NELSON PAUL alias SALIM---Petitioner

Versus

Mst. ASMAT PARVEEN and others---Respondents

Civil Petition No.2616-L of 2004, decided on 30th December, 2004.

(On appeal from judgment dated 12-8-2004 of the Lahore High Court, Lahore passed in Writ Petition No.3102 of 2004).

Constitution of Pakistan (1973)---

---Art. 199---Constitutional petition---Commitment made by petitioner before High Court to hand over possession of premises to respondent by specified date---Filing of second Constitutional petition instead of honouring such commitment-Dismissal of second Constitutional petition being not maintainable---Validity---Petitioner was causing harassment to respondent by indulging him in frivolous litigation---Supreme Court, due to such attitude of petitioner, expressed its intention, to impose heavy cost upon him, so that he might avoid such litigation in future---Supreme Court, however, accepted request of petitioner's counsel to hand over possession of premises to respondent by specified date.

Maqbool Elahi's case 1988 SCMR 1247 ref.

Zahid Hussain Khan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Petitioner.

Nemo for Respondents.

Date of hearing: 30th December, 2004.

2006 S C M R 649

[Supreme Court of Pakistan]

Present: Javed Iqbal, Tanvir Ahmed Khan and Faqir Muhammad Khokhar, JJ

MEHMOOD son of Bahawal---Petitioner

Versus

MEHMOOD son of Soina---Respondent

Civil Petition No.493-L of 1999, decided on 3rd February, 2003.

(On appeal from the judgment dated 4-2-1999 passed by the Lahore High Court, Lahore, in Civil Revision No.2959 of 1996).

West Pakistan Land Reforms Regulation, 1959 (M.L.R. No.64)---

----Para. 19---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan (1973), Art.185(3)---Suit for declaration---Plaintiff as allotted of suit-land by Land Reforms Authorities on payment of price claimed that entries in Jamabandi in question showing defendant as owner thereof were illegal and void---Defendant's plea was that suit-land had been allotted to him as its tenant on payment by instalments---Suit was concurrently decreed by all the three Courts---Validity---Concurrent findings of fact based on evidence on record were that suit-land had validly been allotted to plaintiff after its resumption from declarant; that plaintiff had paid its dues and mutation had been attested in his favour---Mere reliance on Jamabandi and receipts of payments by defendant would not be sufficient to conclude him as owner of suit-land---Some allotment made in favour of defendant by Assistant Land Commissioner had been cancelled subsequently by Deputy Land Commissioner--Defendant being a namesake of plaintiff by manoeuvring a change of father's name in column of father's name in Jamabandi in question had played such mischief---Defendant could not prove allotment of suit-land in his favour---Impugned judgment did not call for any interference---Supreme Court dismissed petition.

Ch. Muhammad Ashraf Wahlah, Advocate Supreme Court for Petitioner.

Malik Amjad Pervaiz, Advocate Supreme Court and Ch. Talib Hussain, Advocate-on-Record for Respondent.

Date of hearing: 3rd February, 2003.

2006 S C M R 652

[Supreme Court of Pakistan]

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

BISMILLAH & CO. and others---Appellants

Versus

SECRETARY, MINISTRY OF FINANCE, GOVERNMENT OF PAKISTAN and others---Respondents

Civil Appeals Nos.163 to 169, 211, 212, 376, 377, 730, 731, 1342 to 1344, 1415, 1468 of 1999, 894 to 897, 999, 1000, 1001, 1002, 1042 of 2000, 1297 and 1298 of 2001, Civil Petitions Nos.3000-L to 3002-L of 2000 and C.M.A. No.2400 of 2000 in C.A. No.163 of 1999, decided on 19th October, 2004.

(On appeal from the judgments/orders dated 11-6-1997 passed by Lahore High Court, Lahore in Review Applications Nos.83, 89, 85, 84, 86, 88, 87 of 1997 in Writ Petitions Nos.15429, 15426, 19511, 18246, 13474, 15428 and 18247 of 1996, judgment/order dated 18-1-1999 passed by Lahore High Court, Multan Bench, in Writ Petition No:10220 of 1998, order dated 8-2-1999 passed by Lahore High Court, Bahawalpur Bench in Writ Petition No.411 of 1999, order dated 22-2-1999 passed by Lahore High Court, Multan Bench in Writ Petitions Nos.I0578 of 1998, 11040 of 1999 judgment dated 3-6-1999 passed by Lahore High Court Multan Bench in Writ Petitions Nos.12016 and 11327 of 1998, judgment dated 6-7-1999 in Writ Petition No.5484 of 1998/BWP, judgment dated 3-6-1999 in Writ Petition No.9886 of 1998, judgment dated 24-9-1998 in Writ Petitions Nos.21917, 21916 and 16358 of 1997, order dated 4-4-2000 in Writ Petitions Nos.19770, 21918, 23488 of 1997, 12635 of 1998, order dated 6-7-1999 in Writ Petitions Nos.6190 of 1997, 973 of 1998, 1635 of 1998, 6081 of 1997, order dated 3-6-1999 in Writ Petition No.8650 of 1998, order dated 7-6-2000 in Writ Petitions Nos.9130 and 9972 of 1999 and order dated 2-10-2000 in Writ Petitions Nos.7770 of 1989, 11375 of 1999 and 5752 of 1990).

Income Tax Ordinance (XXXI of 1979)---

----S. 50(7A), Expln.---Explanation to S.50(7A) of Income Tax Ordinance, 1979---Effect---Explanation to S.50(7A) of the Ordinance was a deeming provision --- Deeming provision in a taxing statute would have effect of bringing within mischief of chargeability on income, what might not have actually accrued, but by fiction of law would be supposed to have accrued---Person, who had been awarded a contract would cam income, and advance tax would be a security which would be adjusted, when final liability was determined---Principles.

Muhammad Younas v. Chairman Municipal Committee, Sahiwal and others PLD 1984 Lah. 345; Muhammad Ansar and 2 others v. Administrator, Town Committee, Kabirwala, District Khanewal and 4 others 2000 PTD 478; Manzoor Hussain v. Wali Muhammad PLD 1965 SC 425 and Hari Shankar v. Dy. E & T Commissioner AIR 1975 SC 1121 ref.

Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan PLD 1997 SC 582; Commissioner of Income Tax v. Asbestos Cement Industries Ltd. and others (1992) 66 Tax 140 (S.C. Pak) and Trustees of the Port of Karachi v. Central Board of Revenue 1989 PTD 1048 rel.

(b) Interpretation of statutes---

----Fiscal statute ---Deeming provision---Effect---Such provision would have effect of bringing within mischief of chargeability on income, what might not have actually accrued, but by fiction of law would be supposed to have accrued.

(c) Income Tax Ordinance (XXXI of 1979)---

----S. 50(7A)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Lease of right to collect export/octroi/Mandi tax stipulating deposit of 50% advance income tax by lessees---Validity---Lessees having agreed to pay advance tax in terms of contract could not wriggle out of such contractual obligation by invoking Constitutional jurisdiction of High Court.

Maqbool Ellahi Malik, Senior Advocate Supreme Court, Khalil Ahmad, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Appellants (C.As. Nos.163 to 169, 1342 to 1344 of 1999 and 894 to 897 of 2000).

Muhammad Munir Peracha, Advocate Supreme Court for Applicant (C.M.A. No.2400 of 2000 in C.A. No. 163 of 1999).

Rao Munawar Khan, Advocate Supreme Court for Appellants (C.As. Nos. 1297, 1298 of 2001, 1468 of 1999 and 1042 of 2000).

Muhammad Uzair Chughtai, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants (C.As, Nos.211, 212 of 1999 and 999 to 1002 of 2000).

Ch. Muhammad Yaqub Sindhu, Advocate Supreme Court for Appellants (C.As. Nos.376, 377, 730 and 731 of 1999).

Ms. Afghan Ghazanfar, A.A.-G. Punjab for Petitioners (C.Ps. Nos.3000-L to 3002-L of 2000).

Raja Muhammad Irshad, D.A.-G. and Ch. Akhtar All, Advocate-on-Record for Respondents (C.As. Nos. 163 to 169 of 1999).

M. Ilyas Khan, Senior Advocate Supreme Court, Muhammad Aslam Chattha, Advocate-on-Record and Ch. Akhtar Ali, Advocate-on-Record for Respondents (C.As, Nos.894 to 897 of 2000 and C.Ps. Nos.3000-L to 3002- L of 2000).

Syed Kalim Khursheed, Advocate Supreme Court for Respondents Nos. 6 and 5 (C.As. Nos.165 and 166 of 1999).

Malik Muhammad Nawaz, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondents (C.As. Nos.211, 212, 376, 377, 730 and 731 of 1999 and 999 to 1002 and 1042 of 2000).

Ch. Ali Muhammad, Advocate Supreme Court for Respondent No.5 (C.A. No. 1344 of 1999).

Date of hearing: 19th October, 2004.

2006 S C M R 659

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

SHER KHAN and others---Petitioners

Versus

GHULAM QADIR and others-Respondents

C.M.A. No.22-K of 2003 and Civil Petition for Leave to Appeal No.470-K of 2002, decided on 17th March, 2003.

(On appeal from the judgment dated 7-3-2002 passed by the High Court Sindh, Karachi in R.A. No.245 of 1998).

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

---S. 115 & O.XLI, R.27---Revision---Additional evidence, production of---Validity---Leave to appeal was granted by Supreme Court to consider as to whether High Court had exceeded its jurisdiction by allowing additional evidence without affording opportunity of hearing to petitioner and if so, whether petitioner had been seriously prejudiced by consideration of such evidence.

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

----Art. 89(5)---Constitution of Pakistan (1973), Art.185(3)---Foreign public document---Proof---Leave to appeal was granted by Supreme Court to consider as to whether foreign public documents, not proved in evidence in terms of Art.89(5) of Qanun-e-Shahadat, 1984, could be legally relied upon.

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

----Art. 84---Civil Procedure Code (V of 1908), S.115---Constitution of Pakistan (1973), Art.185(3)---Comparison of signatures of a party on photo copy of document with his signature on photo copy of another document---Validity---Leave to appeal was granted by Supreme Court to consider as to whether High Court was competent to compare signature of respondent on photocopy of his National Identity Card issued in 1974 with his signatures on photo copy of Passport and impugned sale-deed.

Akhtar Hussain, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing; 17th March, 2002.

2006 S C M R 662

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Falak Sher and M. Javed Buttar, JJ

ZAFAR IQBAL-Petitioner

Versus

Mst. TAHIRA PARVEEN and others---Respondents

Civil Petition for Leave to Appeal No.2057(L) of 2003, decided on 29th October, 2004.

(On appeal from the judgment, dated 29-5-2003 of the Lahore High Court, Lahore passed in Writ Petition No.8842 of 2000)

West Pakistan Family Courts Act (XXXV of 1964)---

--S. 5 & Sched.---Constitution of Pakistan (1973), Art.199---Constitutional petition---Suit for recovery of dowery articles or value thereof in alternative---Family Court decreed suit partly while declining claim for motorcycle or its value and gold ornaments---Appellate Court dismissed appeal of wife-Plea of wife was that motorcycle was purchased by her father through her brother, which was given to her at the time of marriage and was sold by husband for Rs.50,000---Husband's plea was that his brother-in-law had offered motorcycle for sale to him, which he purchased being a dealer of motorcycles and subsequently sold to someone else---High Court in Constitutional petition added price of motorcycle (Rs.50,000) to the amount of decree passed by Family Court---Validity---High Court had correctly added price of motorcycle in amount of decree after finding that motorcycle had been given to wife at the time of marriage as a dowry article, which had been sold by husband for Rs.50,000---No illegality or jurisdictional defect was found in impugned judgment----Controversy was merely factual in nature not involving any question of law---Supreme Court dismissed petition and refused leave to appeal.

Malik Saeed Hassan, Senior Advocate Supreme Court with Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 29th October, 2004.

2006 S C M R 664

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Abdul Hameed Dogar and Tanvir Ahmed Khan, JJ

MUHAMMAD AKRAM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.331 of 2002, decided on 6th May, 2003.

(On appeal from the judgment dated 5-11-2001 of the Lahore High Court, Lahore, passed in Criminal Appeal No.120-J of 1996 and Murder Reference No. 16 of 1997).

Penal Code (XLV of 1860)---

--Ss. 302(b), 324, 460, 337-A(i) & 337-F(ii)--Appraisal of evidence--F.I.R. was promptly recorded with. detailed role of the accused and his apprehension along with the incriminating weapon at the place of occurrence was also mentioned therein---Presence of the complainant who had sustained six injuries on his person during the occurrence could not be doubted and his statement was amply supported by other eye-witnesses whose presence on the spot, being a neighbour having common wall, was also natural---Motive for the occurrence had been established beyond doubt--Failure to send the crime-empties recovered from the spot to the Expert was immaterial in the presence of confidence inspiring evidence, apprehension of accused with the weapon from the place of occurrence and the motive coupled with medical evidence-Appeal was dismissed in circumstances.

M. Amjad Malik, Advocate Supreme Court for Appellant.

M. Zaman Bhatti, Advocate Supreme Court for Respondent.

Date of hearing; 6th May,2003.

2006 S C M R 669

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Syed Deedar Hussain Shah and Abdul Hameed Dogar, JJ

COLLECTOR OF CUSTOMS and others---Petitioners

Versus

TAHIR DAWOOD and another----Respondents

Civil Petitions Nos. 830-K to 832-K and 879-K of 2003, decided on 12th February, 2004.

(On appeal from the judgment, dated 16-9-2003 of the High Court of Sindh, Karachi, passed in Constitution Petition No. D-1023 and judgment in Special Customs Appeals Nos. 53, 64 and 79 of 2003, dated 16-9-2003).

Customs Act (IV of 1969)---

---S. 196---Appeal before High Court not involving substantial question of law-Dismissal of appeal in such circumstances would be legal.

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

Zafar Iqbal, Advocate-on-Record for Respondents.

Date of hearing: 12th February, 2003.

2006 S C M R 672

[Supreme Court of' Pakistan]

Present: Qazi Muhammad Farooq, Abdul Hameed Dogar and Tanvir Ahmed Khan, JJ

MAQSOOD AHMED---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.337 of 2002, decided on 7th May, 2003.

(On appeal from the judgment dated 27-7-2001 of the Lahore High Court, Multan Bench Multan passed in Criminal Appeal No.390 of 1998 and Murder Reference No.330 of 1998).

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

----S. 302---Constitution of' Pakistan (1973), Art. 185(3)---Leave to appeal was granted to accused to consider whether appraisal of evidence undertaken by the Courts below was in accordance with the principles laid down by the superior Courts for safe administration of justice.

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

----S. 302---Appreciation of evidence---Related eye-witnesses---Principle---Evidence of eye-witnesses related to the deceased can sustain conviction if it is worthy of reliance and is corroborated by any independent piece of evidence.

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

----S. 302---Appraisal of evidence---Occurrence having taken place in the fields of the complainant, his presence as well as that of his close relative on the spot was not doubtful who were both natural and probable witnesses---Ocular testimony was not only consistent, straightforward and free from any serious infirmity, but was also corroborated by medical evidence, motive, promptly lodged F.I.R. recovery of weapon of offence on the pointation of accused and positive report of the Fire-Arm Expert---Case being of single accused, deceased's father could not be expected to substitute an innocent person for the real culprit---Recovery of pistol having been effected on pointation of' accused while in police custody, police official was as good a recovery witless as any other person---Non-recovery of some of the crime-empties was not of much importance as the occurrence had taken place in a field---Evil design of the accused of committing sodomy with the deceased being in the exclusive knowledge of' the complainant, motive stood established on record by his statement---Sentence of death awarded to the accused did not warrant interference for want of any mitigating circumstance---Appeal was dismissed in circumstances.

Manzoor Ahmed v. The State PLD 1983 SC 197 and Anar Gul v. The State 1999 SCMR 2303 ref.

Sardar Muhammad Ghazi, Advocate Supreme Court for Appellant.

M. Zaman Bhatti Advocate Supreme Court for the State.

Date of hearing: 7th May, 2003.

2006 S C M R 676

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Tassaduq Hussain Jillani, JJ

CITY DISTRICT GOVERNMENT, LAHORE through District Coordination Officer, Lahore-Petitioner

Versus

Mian MUHAMMAD SAEED AMIN---Respondent

Civil Petition No.15-L of 2004, decided on 29th December, 2004.

(On appeal from the judgment/order dated 20-10-2003 passed by Lahore High Court, Lahore in Civil Revision No.216 of 2003).

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

----S. 115---Limitation Act (IX of 1908), Ss.5 & 29(2)---Revision---Condonation of delay---Provisions of S.5 of Limitation Act, 1908 were not applicable to proceedings under S.115, C.P.C.

Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286 fol.

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

----S. 115---Limitation Act (IX of 1908), Ss.12 & 29(2)---Revision---Condonation of delay---Impugned judgment was passed on 10-6-2002---Application for obtaining certified copy thereof was made on,17-6-2002, which was ready and delivered on 19-7-2002---Revision filed on 21-10-2002 was, held, to be time-barred.

Kh. Muhammad Afzal, Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record for Petitioner.

Hainid Ali Mirza, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Respondent.

Date of hearing: 29th December, 2004.

2006 S C M R 678

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Faqir Muhammad Khokhar and Falak Sher, JJ

PROVINCE OF PUNJAB through Secretary, Agriculture, Government of Punjab and others---Petitioners

Versus

ZULFIQAR ALI---Respondent

Civil Petition No.452-L of 2003, decided on 10th February, 2004.

(On appeal from the judgment, dated 11-11-2002 passed by the Punjab Service Tribunal in Appeal No.585 of 2002).

Civil service---

----Illegal appointment---Termination of service---Imposition of penalty by Appointing Authority responsible for making illegal appointment---Validity---Appointment of an employee, if made illegally, could not be cancelled under Efficiency and Discipline Rules---Instead of taking action against such employee, action must be taken against Appointing Authority for committing a misconduct by making illegal appointment as per his own admission---Principles illustrated.

Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others 2002 SCMR 1034 and Secretary to Government of N.-W.F.P.'s 1996 SCMR 413 fol.

Muhammad Sharif Butt, Advocate Supreme Court for Petitioners.

Nemo for Respondent.

Date of hearing: 10th February, 2004.

2006 S C M R 683

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rahman Ramday, JJ

C.P.L.A. No.1530/L of 1999

NAWAZISH HUSSAIN and others---Petitioners

Versus

MEHR BIBI (deceased) through L.Rs.---Respondents

(On appeal from the judgment, dated 29-6-1999 of the Lahore High Court, Lahore, passed in Civil Revision No.969 of 1992).

C.P.L.A. No.1531/L of 1999

Mian NAWAZISH HUSSAIN and others---Petitioners

Versus

MAZHAR HUSSAIN and others---Respondents

(On appeal from the judgment, dated 29-6-1999 of the Lahore High Court, Lahore, passed in Civil Revision No.970 of 1992).

C.P.L.A. No.1532/L of 1999

Mian NAWAZISH HUSSAIN and others---Petitioners

Versus

MAZHAR HUSSAIN and others---Respondents

(On appeal from the judgment, dated 29-6-1999 of the Lahore High Court, Lahore, passed in Civil Revision No.971 of 1992).

C.M.A. No.587/L of 2002 in C.P.L.A. No.1530/L of 1999

(For impleadment as party)

NAWAZISH HUSSAIN and others---Petitioners

Versus

MEHR BIBI and others ---Respondents

C.P.L.As. Nos.1530-L to 1532-L of 1999 and C.M.A. No.587-L of 2002 in C.P.L.A. No.1530-L of 1999, decided on 1st January, 2003.

(a) Specific Relief Act (1 of 1877)---

----S. 42---Constitution of Pakistan (1973), Art. 185(3)---Declaration of title---Concurrent findings of fact by the Courts below---Trial Court decided the suit in favour of plaintiff and judgment and decree was maintained by Appellate Court---High Court dismissed the revision petition on the ground that no reasons could be disclosed to interfere with the concurrent findings of the two Courts below--- Validity---Defendants failed to offer any reason before Supreme Court against consistent findings of three Courts---Neither the judgments and decrees were a result of misreading or non-reading of any evidence nor the consistent findings of' fact were arbitrary or whimsical---Leave to appeal was refused.

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

----O. I, R. 10---Constitution of Pakistan (1973), Art.185(3)---Joinder of necessary parties---Application for joining the applicants as party to the proceedings was filed in Supreme Court after 42 years of filing of the suit---Effect---Applicants never sought to become party to the civil suit nor did they take any steps to file an independent suit to claim their share in the property in question in spite of the fact that the applicants had knowledge of the filing of the civil suit---Even at the appellate and revisional stages the applicants maintained silence---Supreme Court declined to entertain such application/claim at such belated stage---Law favours only the diligent and not the negligent---Application was dismissed.

Rana Abdur Rahim Khan, Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for Petitioners.

M. Zafar Chaudhry, Advocate Supreme Court with M. Ozair Chughtai, Advocate-on-Record for Respondents.

M. Ismail Qureshi, Senior Advocate Supreme Court for Applicants.

Date of hearing: 1st January, 2003.

2006 S C M R 688

[Supreme Court of Pakistan]

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

MUNICIPAL COMMITTEE, CHAKWAL---Petitioner

Versus

Ch. FATEH KHAN and others---Respondents

Civil Petition for Leave to Appeal No.1802 of 2001; decided on 10th September, 2004.

(On appeal from judgment of Lahore High Court, Rawalpindi Bench, dated 12-3-2001 passed in Civil Revision No.472 of 1987)

(a) Shamlat---

----Shamlat land would vest in occupants of Deh (village)---Municipal Committee would have no right to utilize such land except for the purpose for which same was reserved---If Municipal Committee wanted to utilize such land for any other purpose, then permission of occupants of Deh (village) would be mandatory---Municipal Committee, without such authorization could not convert amenity plot into commercial plot.

(b) Administration of justice---

----Courts are not precluded from moulding relief in view of changed facts and circumstances of a case to shorten litigation between parties.

Amina Begum v. Ghulam Dastgir PLD 1978 SC 220 fol.

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

M. Bilal, Senior Advocate Supreme Court and Chaudhry Muhammad Akram, Advocate-on-Record for Respondents.

Date of-hearing: 10th September, 2004.

2006 S C M R 690

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

AMEER and another---Petitioners

Versus

MOHABBATA and another---Respondents

Civil Petition No.98-L of 2000, decided on 21st January, 2003.

(On appeal from the judgment, dated 15-11-1999 of the Lahore High Court, Lahore passed in Civil Revision No.87 of 1989).

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---Agreement to sell---Proof---Real son of the plaintiff who was one of the marginal witnesses was produced as witness in Trial Court by the plaintiff---Statement of the witness did not find corroboration from any independent source---Trial Court decreed the suit but the same was dismissed by Appellate Court---Judgment and decree passed by the Appellate Court was maintained by High Court in exercise of revisional jurisdiction---Validity---Corroboration could have been furnished by scribe who mentioned in his evidence that defendant was not known to him personally---Agreement to sell was not proved to have been executed by the defendant---Plaintiff failed to produce cogent, concrete and worthy of credence evidence to prove the execution of agreement to sell and remained unsuccessful to discharge his burden---In absence of forthright and convincing evidence no one could be deprived from his property---No error, infirmity or jurisdictional flaw could be pointed out warranting interference in the judgments passed by Appellate Court and High Court---Leave to appeal was refused.

M. Aftab Iqbal Chaudhree, Advocate Supreme Court with Ch. Muhammad Aslam, Advocate-on-Record (absent) for Petitioners.

Nemo for Respondents.

Date of hearing: 21st January, 2003.

2006 S C M R 693

[Supreme Court of Pakistan]

Present: Man Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

CANTONMENT BOARD, KHARIAN through Executive Officer---Petitioner

Versus

Messrs JAFRI TRADING CORPORATION through Managing Partner---Respondent

Civil Petition No.795-L of 2002, decided on 16th July, 2004.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 11-1-2002 passed in Civil Revision No.1501 of 2000).

Arbitration Act (X of 1940)---

----S. 34---Civil Procedure Code (V of 1908), S.115---Qanun-e-Shahadat (10 of 1984), Art.114---Constitution of Pakistan (1973), Art.185(3)---Arbitration clause, non-invoking of---Principle of estoppel---Applicability-Raising of new plea before High Court in exercise of revisional jurisdiction---Suit for recovery of money was decreed by Trial Court in favour of plaintiff and judgment and decree was maintained b} Appellate Court---Defendant filed revision in High Court and raised plea that plaintiff, instead of filing civil suit, should have invoke(, arbitration clause for recovery of disputed amount---High Court dismissed the revision petition on merits as well as being barred by limitation---Validity---High Court had rightly observed that the defendant was estopped to raise the plea that plaintiff should have invoked the arbitration clause instead of filing suit for recovery as the plea was not substantiated by his own conduct who participated in the suit for recovery and appeal arising therefrom and for the first time raised such plea before High Court---Revision petition before High Court was time-barred and no plausible explanation could be offered in High Court for condonation of delay as such High Court was right to dismiss the same as barred by time---Defendant failed to point out any legal infirmity or flaw in the judgment warranting interference of Supreme Court under Art.185(3) of the Constitution---Leave to appeal was refused.

Muhammad Rasheed Ahmad, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioner.

Mehdi Khan Chohan, Advocate. Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Respondent.

Date of hearing: 16th July, 2004.

2006 S C M R 695

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Falak Sher, JJ

OMER NASSAR MUHAMMAD---Petitioner

Versus

PRINCIPAL, NISHTAR MEDICAL COLLEGE and others---Respondents

C.P.L.A. No.3830-L/2002, decided on 13th December, 2002.

(On appeal from the judgment, dated 27-9-2002 of the Lahore High Court, Multan Bench, Multan in Writ Petition No.5220 of 2002).

Constitution of Pakistan (1973)---

----Art. 185(3)---Educational Institutions---Expulsion from college---First Professional examination of M.B.,B.S.---Availing of four chances, principle of---Applicability---Petitioner being student of medical college failed to pass First Professional examination in four chances availed by him and he was expelled from medical college---Order passed by college authorities was maintained by High Court in exercise of Constitutional jurisdiction---Validity---Petitioner had availed four chances provided to him under the Rules but he could not get through---Such rule was essential and had rightly been framed by the authorities so as to improve the excellence of medical education---Supreme Court declined to interfere with the order passed by the college authorities---Leave to appeal was refused.

University of the Punjab and another v. Mst. Saima Zaffar Cheema and 4 others 2001 SCMR 1506(?); Ali Yousaf and another v. Chairman of Academic Council and Principle Medical College and others 2000 SCMR 1222, Akhtar Ali Javed v. Principal, Quaid-I-Azam Medical College, Bahawalpur 1994 SCMR 532, Rana Saeed Ahmad v. The Controller of Examination, Bahauddin Zakriya University, Multan 1996 SCMR 792 and Khan Bahadur v. Principal, Ayub Medical College, Abbottabad and four others 1996 SCMR 1102 ref.

Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court with Ozair Chughtai, Advocate-on-Record for Petitioner.

Nento for Respondents.

Date of hearing: 4th December, 2002.

2006 S C M R 698

[Supreme Court of Pakistan]

Present: Javed Iqbal, Tanvir Ahmad 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 14th April, 2004.

(On appeal from the judgment/order, dated 21-1-2002 of the Lahore High Court, Lahore, passed in Civil Revision No.889 of 1991).

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

----S. 21---Punjab Pre-emption Act (IX of 1991), S.35---Constitution of Pakistan (1973), Art.185(3)---Pre-emption suit---Decree ,passed before 31-7-1987 i.e. cut off date given by Supreme Court in Said Kamal's case reported as PLD 1986 SC 360---Effect---Initial decree was passed on 6-12-1982, and in post-remand proceedings Trial Court dismissed the suit---Lower Appellate Court allowed the appeal and decreed the suit in favour of pre-emptor and judgment and decree was maintained by High Court---Validity---Dictum as laid down by Supreme Court in Said Kamal's case reported as PLD 1986 SC 360, had no bearing on the decree which was admittedly in existence on 6-12-1982, whereas the cut off date was 31-7-1987---Conclusion arrived at by high Court was in consonance with law as laid down by Supreme Court on various occasions and did not warrant interference---Petition for leave to appeal was barred by 24 days and no plausible justification was put forth on the basis of which the delay could be condoned---Supreme Court declined to interfere in the judgment and decree passed by High Court---Leave to appeal was refused.

Government of N.-W.P.P. v. Said Kamal Shah PLD' 1986 SC 360; Sardar Ali v. Muhammad Ali PLD 1988 SC 287; Nazir Begun v. Fazal Dad 1999 SCMR 210; Rozi Khan v. Karim Shah 1992 SCMR 445 and Muhammad Shafi v. Muhammad Hussain 2001 SCMR 827 ref.

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.

2006 S C M R 701

[Supreme Court of Pakistan]

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

ASIF MUSHTAQ-Petitioner

Versus

DISTRICT JUDGE, RAWALPINDI and others---Respondents

C.M.A. No.2217 of 2002 in C.P. No.274 of 2002, decided on 27th January, 2003.

(On appeal from the order dated 30-11-2001 of the Lahore High Court in W.P. No.3019 of 2001).

West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5---Constitution of Pakistan (1973), Art 185(3)---Family Court, jurisdiction of---Concurrent findings of fact by the Courts below--Suits for recovery of dower amount, maintenance and recovery of dowry articles were decreed by Family Court in favour of wife-Judgments and decrees passed by the Family Court were maintained by Appellate Court as well as by the High Court---Plea raised by the husband was that the amount of maintenance was excessive and dower amount had been waived by the wife-Validity---Said discretionary order was passed by the Family Court after recording of entire evidence and going through the facts and circumstances emerging from the present case-No cogent evidence except statement of husband was available and the same could not be equate, with the proof of waiver---Supreme Court declined to interfere with the judgments and decrees passed by the Courts below-Leave to appeal was refused.

Muhammad Munir Piracha, Advocate Supreme Court for Petitioner.

Muhammad Zaman Bhatti Advocate Supreme Court for Respondents.

Date of hearing: 27th January, 2003.

2006 S C M R 702

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Falak Sher, JJ

MUHAMMAD SADIQ represented by Muhammad Sarwar and others---Petitioners

Versus

AMIR MUHAMMAD and others---Respondents

Civil Petition No.1990-L of 2000, decided on 20th December, 2004.

(On appeal from the judgment dated 30-5-2000 of the Lahore High Court, Lahore, passed in R.S.A. No.862 of 1969).

Specific Relief Act (I of 1877)---

--S. 8---Transfer of Property Act (IV of 1882), S.41-Constitution of Pakistan (1973), Art.I85(3)---Transfer by ostensible owner, protection of-Plaintiffs were in possession of suit-land which was disposed of by defendants--Suit for recovery of possession was filed by plaintiffs which was resisted by defendants on the ground that they had purchased the land--Trial Court decreed the suit in favour of plaintiffs but Appellate Court dismissed the suit--High Court allowed second appeal and judgment and decree passed by Trial Court was restored-Plea raised by defendants was that they purchased the land from the owner and had protection of S.41 of Transfer of Property Act, 1877---Validity---Supreme Court found that no exception could be taken to the conclusions reached by High Court concurring with the findings of Trial Court---Land in question was Banjar Qadeem being situated in Abadi Deh and in the circumstances possession had to follow the title---High Court rightly concluded that the possession in question was with plaintiffs till they had allegedly disposed same and in circumstances the suit could not be held to be barred by limitation-High Court rightly concluded that possession being with plaintiffs was a sufficient notice to the prospective buyer-Defendants were not entitled to benefit of S.4 of Transfer of Property Act, 1877, especially when no evidence was led by anyone about the reasonable steps having been taken to inquire into the title of vendor vis-a-vis the sale in question who had earlier sold the same land to predecessor-in-interest of plaintiff-Supreme Court declined to interfere in the judgment and decree passed by High Court-Leave to appeal was refused.

Ch. Arshad Mahmood, Advocate Supreme Court for Petitioners.

Hanif Niazi, Advocate Supreme Court with Faiz-ur-Rehman, Advocate-on-Record for Respondents.

Date of hearing: 20th December, 2004.

2006 S C M R 705

[Supreme Court of Pakistan]

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

ABU BAKAR SIDDIQUE and others---Appellants

Versus

COLLECTOR OF CUSTOMS, LAHORE and others---Respondents

Civil Appeals Nos.1574 of 2001 and 921 of 2002, decided on 20th February, 2003.

(On appeal from the judgment of Lahore High Court, Lahore, dated 6-12-2000 passed in Customs Appeal No.26 of 1997 and dated 7-6-1999 of Lahore High Court, Rawalpindi Bench, passed in Customs Appeal No.51 of 1998).

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

----S. 181---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider; whether in view of 5.181 of Customs Act. 1969, the Collector of Customs was not under obligation to give an option to the petitioner to pay fine in lieu of confiscated goods.

(b) Customs Act (IV of 1969)-

---S. 181-Central Excise and Salt Act (I of 1944), S.34--Sea Customs Act (VIII of 1878), S.183---Confiscation of goods---Option to pay fine---Scope and distinction---In case of confiscation of goods under the provisions of Central Excise and Salt Act, 1944, it is obligatory for the adjudicating officer to give option to the owner of the goods to pay fine in lieu of confiscation and similarly under 5.183 of Sea Customs Act, 1878, giving of such option was mandatory but under S.181 of Customs Act, 1969, the option is discretionary and not mandatory---Distinction among the provisions of three laws is that Central Excise and Salt Act, 1944, deals with the goods which are manufactured in Pakistan and there is no restriction on the sale and purchase of such goods inside the country whereas the Customs Act, 1969, applies to the goods which are imported into Pakistan and exported out of Pakistan under the import and export policy of Government.

Kshetra Nath v. Collector, Land Customs AIR 1959 Cal. 356 ref.

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

--S. 2(s)---Import of goods in personal baggage---Scope---Such import is in violation of import policy framed under Import and Export (Control) Act, 1950 and is illegal.

(d) Discretion---

--Exercise of discretion--Principles---Authority enjoying the discretionary powers, exercises the same without any guideline but at the same time such authority must not exercise the discretion in arbitrary and capricious manner---It may not be obligatory for the concerned authority to exercise the discretion in a particular manner but exercise of such power in unreasonable manner is not proper and in such a case the order passed in discretionary jurisdiction is not immune from judicial review of superior Courts---In a case in which statute authorize a person for exercise of discretion to advance the cause of justice, the power is not merely optional but it is the duty of such person to act in the manner it is intended.

(e) Words and phrases---

----May---Connotation and applicability---Word 'may' is discretionary and an enabling word and unless the subject-matter shows that the exercise of power was given by the provision using the word 'may' was intended tee be imperative for the person to whom the power was given, it might not put him under obligation to necessarily exercise such power but if it is capable of being construed as referring to a statutory duty, it is not entirely for such person to exercise or not to exercise the power given to him under the law---Use of word 'may' in statute in plain meanings is to give discretion to public authorities to act in their option in the manner in which such authorities deem proper but if the public authorities are authorized to discharge their functions in their option in a positive sense, the Word 'may' used in the provision can be suggestive of conveying the intention of legislature of imposing an obligation on them-Word 'may' usually and generally does not mean 'must' or 'shall' but it is always capable of meaning 'must' if the discretionary power is conferred upon a public authority with an obligation under law--Word 'may' is not always used in statute with the intention and purpose to give uncontrolled powers to an authority rather offenly it is used to maintain the status of authority on whom the discretionary power is conferred as an obligation and thus the legislative expression in the permissive form some times is construed mandatory---Such however, is only in exceptional circumstances that a power is conferred on a person by saying that he may do a certain thing in his discretion but from the indication of the relevant provisions and the nature of the duty to be done, it appears that exercise of power is obligatory.

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

----S. 181---Confiscation of goods---Option of fine in lieu of confiscation---Jurisdiction of adjudicating officer---Scope--Adjudicating officer under S.181 of Customs Act, 1969, is not under obligation to give an option to the owner of goods for redemption in lieu of payment of fine and taxes---By addition of proviso to S.181 of Customs Act, 1969, the discretionary power of giving an option to the owner of goods is confined only to the extent of the goods which have not been kept out of the purview of S.181 of Customs Act, 1969---Classification of goods for the purpose of exercise of discretion under S.181 of Customs Act, 1969, manifestly indicates that it is not the intention of legislature that in all circumstances, the giving of option under S.181 of Customs Act, 1969, for redemption of goods in lieu of payment of fine, should be entirely discretionary.

(g) Administration of justice---

----Exercise of mandatory and discretionary jurisdiction--Principle---Ail judicial, quasi-judicial and administrative authorities while exercising mandatory or discretionary jurisdiction must follow the rule of fair exercise of power in a reasonable manner and must ensure dispensation of justice in the spirit of law.

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

-----S. 181--Option for redemption of goods in lieu of payment of fine---Scope---Use of word 'may'---Effect---Use of word may in S.181 of Customs Act, 1969, cannot be read for 'shall' but at the same time the concerned officer in absence of any compelling reasons, must not withhold the exercise of the discretion of giving an option to the owner of goods under S.181 of Customs Act, 1969, for redemption of goods in lieu of payment of fine, except in the cases in which goods cannot be allowed to be circulated in the market or the goods which were imported in violation of S.15 or of notification issued under S.16 of Customs Act, 1969.

(i) Customs Act (IV of 1969)-

----Ss. 2(s) & 181---Term 'smuggling'---Object and scope---Confiscation of goods---Option of fine in lieu of confiscation--Jurisdiction of adjudicating officer---Item not banned under Import Policy---Gold imported in personal baggage was confiscated by Custom Authorities---Plea raised by the appellant was that the adjudicating officer should have given option to him to pay fine in lieu of confiscation---Validity---Smuggling is nothing but importation or exportation of goods intentionally or clandestinely without payment of Customs duties or taxes payable or to bring into or take out of Pakistan the goods in breach of any prohibition or restriction imposed by law---Bringing of gold in personal baggage in violation of import policy was illegal but it being not a banned item was not included in the list of items specified by Central Board of Revenue, in which the option under S.181 of Customs Act, 1969, could not be given---Import of gold under the Import Policy, 1995/96, was restricted to registered person or a company with a purpose to regulate its import and business in local market but its import by unregistered person neither debarred the Customs authorities from using the discretionary power under S.181 of Customs Act, 1969, nor the legislature by using the word 'may' in the section intended to give unbridled power to the Customs Authorities to act entirely in their own wisdom---Imperative for the Customs Authorities to consider the provisions of S.181 of Customs Act, 1969, at the time of passing the confiscation order in the cases in which the provisions of the section could be invoked and pass an appropriate order for grant or refusal of option for redemption of goods in lieu of payment of fine and taxes--Judgment passed by High Court was set aside and the matter was remanded to Collector for consideration of question of redemption of goods in lieu of payment of fine under S.181 of Customs Act, 1969---Appeal was allowed.

Kshetra Nath v. Collector, Land Customs AIR 1959 Cal. 356 ref.

(j) Interpretation of statute---

---Special provision relating to discretionary jurisdiction, interpretation of---Principles---Narrow interpretation of such provision may defeat the purpose of the provision---Discretion must not be exercised to curtail the purpose of law and offend the statute, rather the discretion must be exercised to advance the cause of justice in just, fair and reasonable manner---Failure to exercise discretionary power under the statute without any legal justification amounts to refusal to use such power in an arbitrary and capricious manner.

Izharul Haque, Advocate Supreme Court for Appellants On both cases).

A. Karim Malik, Advocate Supreme Court for Respondents (in both cases).

Date of hearing: 20th February, 2003.

2006 S C M R 718

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Falak Sher and M. Javed Buttar JJ

MUHAMMAD LUQMAN---Petitioner

Versus

ALLAH DIWAYA and others---Respondents

Civil Petition No.155(L) of 2000, decided on 11th October, 2004.

(On appeal from the judgment dated 26-10-1999 of the Lahore High Court, Multan Bench, Multan passed in Writ Petition No.13/R of 1990).

West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)---

----S. 3---Displaced Persons (Land Settlement) Act (XLVII of 1958), S.4-Limitation Act (IX of 1908), Art.148--Constitution of Pakistan (1973), Art.185(3)---Redemption of mortgaged land---Evacuee mortgagee---Factual controversy---Disputed land was mortgaged in year 1920 with non-Muslim evacuee and notification was issued in terms of 5.4 of Displaced Persons (Land Settlement) Act, 1958---High Court in exercise of Constitutional jurisdiction allowed the landowners to get their land redeemed--Validity---Notification issued under S.4 of Displaced Persons (Land Settlement) Act, 1958, of vesting of property in Central Government did not destroy the rights of non-evacuees in the land in which evacuees had some rights under the mortgage---Transferees/ allottees of such lands merely stepped into the shoes of evacuees---Rights of Muslim owners of equity of redemption were not extinguished and the allotteees and transferees of such land were merely the allottees/ transferees of the rights/interests which were enjoyed by the evacuee and not beyond that---In such cases only mortgage rights which were enjoyed by the evacuees were transferred--Mortgage of land in dispute was created on 14-12-1920 and application for redemption was filed on 30-9-1963 by landowners before Revenue Authorities---High Court had correctly held the application to be within time and directed the Authorities to decide the same--Controversy was factual in nature and did not involve any question of law---Supreme Court declined to interfere in the judgment passed by High Court--Leave to appeal was refused.

Zafar Iqbal Ch. Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Petitioner.

Syed Sardar Shah Bokhari, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Respondents.

Date of hearing: 11th October, 2004.

2006 S C M R 721

[Supreme Court of Pakistan]

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

Messrs M.A. KHAN & CO. through Sole Proprietor Muhammad Ali Khan---Appellant

Versus

Messrs PAKISTAN RAILWAY EMPLOYEES COOPERATIVE HOUSING SOCIETY LTD. through Principal Officer/Secretary, Karachi---Respondent

Civil Appeal No.501 of 2000, decided on 5th June, 2003.

(On appeal from the order/judgment dated 15-2-2000 of the High Court of Sindh, Karachi passed in Appeal No.113 of 1995).

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

--S. 10-Valid contract-Essentials--Tender notice, whether a valid contract--Offer and its acceptance-Tender notice is neither offer nor proposal---Tender notice is invitation which is extended for making offer and it is not an offer or proposal--Offer made by a person without acceptance does not create any promise or agreement but acceptance of offer or proposal by person who called for tender would constitute an agreement---Acceptance of offer may be express or implied or it can be gathered from the conduct of parties and the circumstance of the case,-Acceptance of offer gives rise to an agreement which if enforceable in law is a valid contract---Contract is complete as soon as offer is accepted and the terms of contract required to be reduced in writing would be only incidental to the completion of contract---In a contract by correspondence if the acceptance of offer is established through letters, the execution of the formal agreement would not be essential to constitute a valid contract-Letters of offer and acceptance indicating the terms agreed upon by the parties would constitute a valid contract which would not be affected by subsequent negotiation and the terms of contract would necessarily be judged from the letter of acceptance---Transaction to be recognized as a contract must contain the essential elements of proposal and its unqualified acceptance-In order to ascertain the existence of an agreement between the parties for a contract, the negotiation and correspondence between the parties would be considered.

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

----S. 10-Valid contract--Acceptance of tender--Contractor made lowest offer for execution of work and acceptance of his offer by the authorities was established by the letter sent by the authorities to the appellant---In the letter, the authorities in unequivocal terms admitted the existence of unqualified and absolute agreement in respect of work and projects for which the lowest and highest tenders were given--Authorities in the letter with reference to the earlier negotiation and discussion had confirmed the award of contract and execution of work by giving assurance that necessary formalities of issue of work order and execution of agreement would be completed in due course of time--Validity---Division Bench of High Court had wrongly formed an opinion about non-existence of an enforceable contract between the parties-Appeal was decided by High Court in a perfunctory manner without attending the question of its maintainability due to non-payment of Court-fee and being barred by time and without discussing the case of the parties on merits---Agreement between the parties being-in existence, judgment passed by High Court was set aside and the matter was remanded to High Court for decision afresh on merits---Appeal was allowed.

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-one-Record for Appellant.

Irtiza H. Zaidi, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate-on-Record for Respondent.

Date of hearing: 4th June, 2003.

2006 S C M R 730

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Tassaduq Hussain Jiliani, .IJ

RABNAWAZ and others---Petitioners

Versus

MUHAMMAD ALI---Respondent

Civil Petition No.2805-L of 2001, decided on 2nd September, 2004.

(On appeal from the order, dated 24-5-2001. passed by Lahore High Court, Lahore in Civil Revision No.1007 of 1988).

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

----S. 43--Constitution of Pakistan (1973), Art. 185(3)--Transferor acquiring title subsequent to transfer---Plaintiffs purchased land measuring 169 Kanals and 16 Marlas but at the time of purchase defendant was owner of 87 Kanals and 12 Marlas---Subsequently defendant acquired some other land by inheritance---Revenue Authorities denied attestation of mutation in favour of plaintiffs to the extent of total land purchased---Trial Court decreed the suit in favour of plaintiffs and judgment and decree was maintained by Appellate Court---High Court in exercise of revisional jurisdiction set aside judgments and decrees passed by two Courts below and the suit was dismissed-Contention of plaintiffs was that under the principles of S.43 of Transfer of Property Act, 1882, defendant was under obligation to satisfy the claim of plaintiffs to the extent of 169 Kanals, 16 Marlas---Validity---Supreme Court, after going through the provisions of S.43 of Transfer of Property Act, 1882 as well as judgment passed in case titled Suba through his 8 L.Rs. v. Mst. Fatima Bibi through her L.Rs. and others reported as 1992 SCMR 1721, granted leave to appeal to consider the contentions of parties.

Suba through his 8 L.Rs, v. Mst. Fatima Bibi through her L.Rs. and others 1992 SCMR 1721 ref.

Mian Zafar Yaseen, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioners.

Talib Hussain Rizvi, Senior Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Respondent.

Date of hearing; 2nd September, 2004.

2006 S C M R 733

[Supreme Court of Pakistan]

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

Babu MUHAMMAD MUNIR---Petitioner

Versus

S.A. HAMEED and others-Respondents

C.M. No.2260 of 2002 in Civil Appeal No.1153 of 1997, heard on 4th April, 2003.

(Under Order XXXIII, rule 6 of Supreme Court for restoration of Civil Appeal No.1153 of 1997 dismissed on. 24-10-2002 for non prosecution).

Supreme Court Rules, 1980---

----O. IV, R.2 & O. XXXIII, R.6---Appeal, restoration of---Absence of Advocate-on-Record, his explanation being that he was busy before another Bench of the Court---Non-filing of affidavit by counsel---Advocate-on-Record did not offer any satisfactory explanation or his absence from Supreme Court, did not give particulars of the case in which he was busy before another Bench of Supreme Court---Advocate­on-Record had placed on record his affidavit in support of the contents of the application for restoration of the appeal---Neither the Advocate-on-Record turned up throughout the day nor the Advocate of Supreme Court placed on record his own affidavit in support of the ground taken for restoration of the appeal---Validity---Mere placing on record photostat copy of airline ticket would not be sufficient to recall the order of the dismissal of appeal for non-prosecution---Although the personal appearance of appellant was not required yet in such circumstances the absence of appellant would not be justified---Advocate-on-Record even in presence of the counsel, who was engaged to conduct the case, was supposed to remain present in Court during the hearing of the case in terms of O.IV, R.2 of Supreme Court Rules, 1980---Supreme Court declined to restore the appeal---Application was dismissed.

Habib Al-Wahab Alkhairi v. Commissioner, Rawalpindi Division PLD 1992 SC 587 ref.

Ali Sibtain Fazli, Advocate Supreme Court with M.A. Zahid, Advocate-on-Record for Petitioner.

Respondents: Ex parse.

Date of hearing: 4th April, 2003.

2006 S C M R 735

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Faqir Muhammad Khokhar and M. Javed Buttar, JJ

Major (Retd.) HAMID ALI KHAN---Petitioner

Versus

Mian MUHAMMAD ANWAR---Respondent

Civil Petition No.1293-L of 2000, decided on 23rd December, 2004.

(On appeal from the judgment, dated 29-4-2000 passed by the Lahore High Court, Lahore in R.F.A. No.140 of 1992)

Specific Relief Act (I of 1877)---

---S. 35(c)-Civil Procedure Code (V of 1908), O.VII, R.11, C.P.C.---Suit for rescinding agreement to sell and decree in favour of defendant passed in suit for specific performance-Rejection of plaint--Deposit of balance amount by defendant in compliance of decree---Withdrawal of amount by defendant during pendency of appeal against decree with au undertaking to re-deposit same, if he was informed one month before its final hearing---Dismissal of appeal without passing order for re-deposit of amount--Defendant's application to re-deposit such amount was allowed by Trial Court-Plaintiff's plea in the suit was that defendant by failing to re-deposit amount as per his undertaking had violated decree rendering same to be unenforceable-Validity---Appellate Court by passing another order should have directed defendant to re-deposit amount--Appellate Court had not fixed time for re-deposit---If Appellate Court had fixed time for re-deposit, then defendant could be held guilty for non-compliance of its order--Such non-deposit would not be enough to rescind contract---Defendant, after final adjudication of matter had re-deposited amount--Plaintiff had no cause of action to claim rescission of contract in terms of S.35(c) of Specific Relief Act, 1877---Plaint was rejected under O.VII, R.II, C.P.C.

Union Eagle Ltd. v. Golden Achievement Ltd. AELR 1997 p.215 ref.

M. Saleem Sahgal, Advocate Supreme Court and Tanvir Ahmed Khan, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing; 23rd December, 2004.

2006 S C M R 740

[Supreme Court of Pakistan]

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

PROVINCE OF PUNJAB and others---Appellants

Versus

Raja MUHAMMAD SALEEM---Respondent

Civil Appeal No.1561 of 1997, decided on 22nd May, 2003.

(On appeal from the judgment, dated 16-5-1996 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Writ Petition No.126 of 1994).

Constitution of Pakistan (1973)----

----Arts. 199 & 212---Constitutional jurisdiction of High Court, exercise of--Service matter---Quashing of proceedings initiated under Government Servants (Efficiency and Discipline) Rules, 1973---Respondent-employee obtained the service fraudulently on the basis of forged educational certificate---On coming to know, the authorities initiated the proceedings against the respondent but High Court in exercise of Constitutional jurisdiction quashed the proceedings---Validity---Employee joined the service by relying upon a forged certificate and remaining in service on the basis thereof---Employee, prima fade, was guilty of perpetual fraud and thus he was amenable to disciplinary action under Government Servants (Efficiency and Discipline) Rules, 1973---Judgment passed by High Court was set aside observing that the authorities might proceed against the employee in accordance with law---Appeal was allowed.

Syed Sajjad Hussain Shah, Assistant Advocate-General, Punjab with Rao Muhammad Yusuf Khan, Advocate-on-Record for Appellants.

Muhammad Munir Peracha, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Respondent.

Date of hearing: 22nd May, 2003.

2006 S C M R 741

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Mian Shakirullah Jan, JJ

ZAFAR HUSSAIN---Appellant

Versus

MUNICIPAL COMMITTEE, BHALWAL and another---Respondents

Civil Appeal No.1498 of 1998, decided on 30th November, 2004.

(On appeal from judgment of the Lahore High Court, Lahore dated 30-9-1999 passed in R.F.A. No.237 of 1998).

Contract Act (IX of 1872)---

----S. 73--Contract for holding of Bakar Mandi---Payment of 2% security and 10% of contract amount in advance---Non-holding of Mandi till expiry of contract period due to stay order obtained by another person from High Court---Contractor's claim for refund of entire advance amount and recovery of damages for breach of contract and mental agony---Validity--Neither contractor nor Municipal Committee had made serious efforts to get stay order vacated either by making request to High Court or invoking jurisdiction of Supreme Court for such purpose---Contractor would not be entitled to refund of total advance amount, but would be entitled to 2/3rd thereof, while Municipal Committee would retain 1/3rd of such amount---In absence of any convincing evidence, contractor would not be entitled to damages---Contractor's claim was partially allowed.

Malik Allah Wasaya, Advocate Supreme Court for Appellant.

Dr. Mohyuddin Qazi, Advocate Supreme Court for Respondent No. 1.

Date of hearing: 30th November, 2004.

2006 S C M R 744

[Supreme Court of Pakistan]

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

MUHAMMAD HANIF KHAN---Appellant

Versus

MUHAMMAD KHAN and 4 others---Respondents

Civil Appeal No.1288 of 1995, heard on 2nd April, 2003.

(On appeal from the judgment of Lahore High Court, Bahawalpur Bench, dated 21-3-1994 passed in Civil Revision No.329 of 94/BWP).

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

----S. 34(2)---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider; whether the Judge in Chambers of High Court while dismissing the petitioner's suit on the ground that no suit for pre-emption could be decreed after the target date i.e. 31.7.1986, fixed by Supreme Court in Said Kamal's case, correctly examined the effect of S.34(2) of Punjab Pre-emption Act, 1991.

Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360 ref.

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

----S. 34(2)---Pre-emption suit--Passing of decree after target date, i.e. 31-7-1986---Effect---Plea raised by the pre-emptor was that decree in his favour was passed by the appellate Court in the year 1993, therefore, provisions of S.34(2) of Punjab Pre-emption Act, 1991, were applicable---Validity---In the suits and appeals filed under Punjab Pre-emption Act, 1913, in which judgments and decrees were passed before 1-8-1986, the provisions of 5.34(2) of Punjab Pre-emption Act, 1991, would apply---Proceedings in such cases would be continued and decree obtained before the target date could be defended under Punjab Pre-emption Act, 1913---If no such decree in favour of the pre-emptor was passed before 1.8.1986, the proceedings in suits and appeals would not continue under Punjab Pre-emption Act, 1913---Pre-emption decree, in the present case, was passed in a suit before 1-8-1986, and appeal was pending against such decree, it would be covered by the provisions of S.34(2) of Punjab Pre-emption Act, 1991, and if pre-emption suit was dismissed before the target date, the pre-emption decree, even if subsequently passed in appeal,. would not be saved by S.34(2) of Punjab Pre-emption Act, 1991---Judgment and decree in the instant suit was hit by law declared by Supreme Court in case titled Government of N.-W.F.P. vs. Said Kamal Shah, reported as PLD 1986, S.C. 360, and thus, the decree was not covered by the provisions of S.34(2) of Punjab Pre-emption Act, 1991---Appeal was dismissed.

1993 SCMR 1089; 1993 SCMR 1316; 1993 SCMR 2050; Rozi Khan v. Karim Shah 1992 SCMR 445 and Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360 rel.

Muhammad Sharif v . Muhammad Sharif 1992 SCMR 1129 distinguished.

Malik Saeed Hasan, Senior Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Appellant.

Respondents: Ex parte.

Date of hearing: 2nd April, 2003.

2006 S C M R 750

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Actg. C.J., Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

NAZIR AHMAD and others---Petitioners

Versus

REHMAT ALI and others---Respondents

Civil Petition No.1004-L of 2004, decided on 28th January, 2005.

(On appeal from the judgment/order dated 9th February, 2004 passed by Lahore High Court, Lahore, in R.S.A. No.115 of 1986).

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

----Ss. 4 & 21---Constitution of Pakistan (1973), Art.185(3)---Superior right of pre-emption---Determination---Raising of new plea--Suit filed by respondents was decreed in their favour by Trial Court holding them having superior right of pre-emption as compared to petitioners---First Appellate Court allowed the appeal of petitioners and reversed the judgment and decree passed by Trial Court but High Court in second appeal, restored the judgment and decree passed by Trial Court---Plea raised by the petitioners was that the suit filed by respondents was barred by limitation---Petitioners further raised the plea that they had superior right of pre-emption as compared to respondents on the basis of their being tenants on the suit-land---Validity---Petitioners had not raised any question of limitation in their pleadings and for such reason no such issue was framed by Tri l Court in that behalf---Similarly the petitioners failed to agitate the point of limitation before First Appellate Court and. High Court respectively, therefore, for the first time permission could not be granted to petitioners to argue the same before the Supreme Court---On limitation a right had come to vest in favour of the other side---Petitioners were not owners of any property in Deh nor they ' succeeded in proving same on the basis of any document that they had superior right of pre-emption---Supreme Court declined to interfere in the judgment and decree passed by High Court---Leave to appeal was refused.

Ehsan-ul-Haq Ch. Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Petitioners.

Muhammad Munir Piracha, Advocate Supreme Court and M. S. Khattak, Advocate-on-Record (absent) for Respondents.

Date of hearing: 28th January, 2005.

2006 S C M R 753

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, J

Raja NASIR JEHANGIR and others ---Petitioners

Versus

M.C., FAISALABAD and others---Respondents

C.M.A. No.1887-L of 2003 in C.P. No.2142-L of 2003, decided on 11th August, 2003.

Civil Procedure Code (V of 1908)---

------S. 12(2)-Constitution of Pakistan (1973), Art.185(3)---Setting aside of judgment and decree---Pendency of petition under Art.185(3) of the Constitution before Supreme Court---High Court in exercise of suo motu powers set aside the judgment and decree---Plea raised by the petitioners was that the High Court was not competent either to entertain the application under S.12(2) C.P.C. or exercise suo motu power of review during the pendency of petition before Supreme Court---Validity---Supreme Court suspended the order passed by the High Court and status quo order was passed.

Raja M. Akram, Senior Advocate Supreme Court for Petitioners.

Date of hearing: 11th August, 2003.

2006 S C M R 755

[Supreme Court of Pakistan]

Present: Iftikhtar Muhammad Chaudhry, Actg. C.J., Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

SALEEM MUMTAZ SYED and others---Petitioners

Versus

ADDITIONAL COMMISSIONER (REVENUE), LAHORE DIVISION and others---Respondents

Civil Petition No.2614-L of 2001, decided on 25th January, 2005.

(On appeal from the judgment/order dated 3f-5-2001 passed by Lahore High Court, in Writ Petition No.827-R of 1979).

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

---S. 2(2)-Constitution of Pakistan (1973), Art.185(3)---Evacuee property---Shop and residential area, divisibility of---Factual controversy---Dispute between the parties was regarding division of shop along with its residential portion---Physical inspection was carried out by Settlement Authorities on the basis of which they concluded that the property was not divisible---Validity---Factual aspect of the case could not be gone into by Supreme Court in its Constitutional jurisdiction---Petitioners could not be accommodated in the premises, as their predecessor-in-interest, who was one of the Directors of the firm issued with allotment letter, had sold his share to a limited company which was an independent entity---Merely being an old partnership' firm who sometime had obtained allotment letter from Custodian to occupy a shop, could not confer a right upon him/then---Petitioners failed to dislodge the findings of Settlement Authorities---Leave to appeal was refused.

Mst. Fatima Begum v. The Chief Settlement and Rehabilitation Commissioner, Lahore and 3 others 1972 SCMR 302; Muhammad Iqbal Khan v. Chief Settlement Commissioner PLD 1965 SC 404; Abdul Majid Khan v. Chief Settlement Commissioner PLD 1968 SC 154 and Shah Jehan Begum v. Shabbir Fatima PLD 1991 SC 614 ref.

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

----S. 2(2)---Chief Settlement Commissioner, Powers of---Delegatee officer---Commissioner (Revenue notified as Chief Settlement Commissioner---Validity---After remand of case, during its pendency, evacuee laws were repealed and for the purpose of pending cases, Provincial Government issued notifications from time to time, including one under which the Commissioner (Revenue) was appointed as Chief Settlement Commissioner---By dint of law if some change had occurred and the powers of Chief Settlement Commissioner were being exercised by a delegatee officer, it was ignorable accordingly.

?

S.M. Naseem, Advocate Supreme Court and Walayat Umar Chaudhry, Advocate-on-Record for Petitioners.

Ch. Aitezaz Ahsan, Senior Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Respondents.

Date of hearing: 25th January, 2005.

2006 S C M R 763

[Supreme Court of Pakistan]

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

MUHAMMAD ASLAM and another---Petitioners

Versus

THE STATE---Respondent

Criminal Petition No.469-L of 2001, decided on 29th April, 2003.

(On appeal from the order dated 16-5-2001 of the Lahore High Court, Lahore passed in Criminal Appeal No.800 and 803 of 1996 and Murder Reference No.46 of 1996).

Penal Code (XLV of 1860)---

---Ss. 302(b)/149, 324/149 & 148---Constitution of Pakistan (1973), Art.185(3)---Accused while armed with lethal weapons had attacked the complainant party killing three persons and causing fire-arm injuries to two witnesses in a premeditated occurrence and were the aggressors---Incident did not suggest even a remote possibility of the correctness of the defence version---Eye-witnesses who were also the victim of the occurrence had no reason to suppress the true facts---Ocular testimony being free from any exaggeration and doubt inspired confidence and was believable without any corroboration which was also supported by medical evidence and the motive---Fatal shots were attributed to accused who had caused murder of all the three deceased who being empty-handed were not even in a position to defend themselves---Murders having been committed in a brutal manner did not permit to take a lenient view in the matter of sentence---Leave to appeal was refused to accused in circumstances.

Rana Muhammad Arshad Khan, Advocate Supreme Court for Petitioners.

Sardar Muhammad Siddiqui, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Complainant.

Date of hearing: 29th April, 2003.

2006 S C M R 769

[Supreme Court of Pakistan]

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

NOOR MUHAMMAD---Petitioner

Versus

MEMBER, BOARD OF REVENUE and others---Respondents

Civil Petition No.682-L of 2003, decided on 2nd April, 2003.

(For leave to appeal from judgment, dated 6-3-2003 of the Lahore High Court, passed in Writ Petition No.10496 of 1998).

(a) Colonization of Government Lands (Punjab) Act (VI of 1912)---

----S. 10---Constitution of Pakistan (1973), Art.199---Constitutional petition before High Court---Horse Breeding Scheme--Findings of fact, substituting of---Dispute was with regard to re-allotment of land in favour of two sons of deceased allottee---Decision made by Collector was upheld by Board of Revenue and was not interfered with by High Court in Constitutional jurisdiction---Validity---Question of suitability was a matter, decision of which was to be made by Revenue Authorities---If Authorities had found one of the two legal heirs more fit and suitable as compared to the other, the same could not be substituted on merits in Constitutional jurisdiction on the ground that it was without lawful authority unless it was established that the decision of Revenue Authorities was violative of any law on the subject to render it without lawful authority.

(b) Colonization of Government Lands (Punjab) Act (VI of 1912)---

----S. 10---Constitution of Pakistan (1973), Art.185(3)---Horse Breeding Scheme---Re-allotment of lease to legal heirs---Recommendations of Remount Officer---After the death of lessee, dispute regarding re-allotment of land arose between two sons---Remount Officer, after considering the case of parties in comparison with each other made recommendations in favour of one son but Collector recommended the other---Commissioner took into consideration the recommendations of Remount Officer and allotted the land to the son recommended by Remount Officer---Order passed by Commissioner was maintained by Board of Revenue as well as by High Court in Constitutional jurisdiction---Validity---Recommendations of Remount Officer were not found to be incorrect or improper on any ground by any of the Revenue Authorities rather Commissioner and Board of Revenue agreed with him---It was not a case where orders passed by Board of Revenue and Commissioner could legally be declared without lawful authority---Supreme Court declined to interfere in the orders passed by Commissioner and Board of Revenue---Leave to appeal was refused.

Ch. Muhammad Ashraf, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing; 2nd April, 2003.

2006 S C M R 771

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Sardar Muhammad Raza Khan, JJ

SHAH JEHAN KHAN ABBASI---Petitioner

Versus

DEPUTY LAND COMMISSIONER, BAHAWALPUR and another---Respondents

Civil Petition for Leave to Appeal No.2952-L of 2000, decided on 27th May, 2003.

(On appeal from the judgment dated 26-10-2000 of the Lahore High Court, Lahore in Writ petition No.264 of 1991).

(a) Land Reforms Regulation, 1972 (M.L.R.115)---

----Para. 13---Repugnancy to Injunctions of Islam of para.13 of Land Reforms Regulation, 1972---Effect---Such repugnancy is prospective w.e.f. 23-3-1990---Any positive action towards, resumption taken and completed prior to 23-3-1990 would not be affected by declaration given in Qazalbash Waqf case PLD 1990 SC 999.

Qazalbash Waqaf v. Chief Land Commissioner, Punjab, Lahore PLD 1990 SC 99 fol.

(b) Land Reforms Regulation, 1972 (M.L.R.115)---

----Para. 13---Land Reforms Act (II of 1977), Ss.7 & 9---Constitution of Pakistan (1973), Art.l85(3)---Resumption of excess land---Litigation concerning gift concluded on 10-7-1988---Authority thereafter resumed excess land---High Court dismissed Constitutional petition of petitioner alleging such resumption to be illegal for no material action having been taken by authorities before 23-3-1990---Validity---Declaration had been filed in year 1972---Land Commissioner had rejected petitioner's appeal on 7-5-1972---Deputy Land Commissioner in order dated 6-4-1981 had observed that petitioner had accepted surrender of marked area---Resumption, thus, stood finalized on such acceptance on 6-4-1981---Any dispute or litigation, if existed about such land, would not be material in view of provision of S.9 of Land Reforms Act, 1977---Factum of litigation would not negate or counter the vesting of property in Government---Material proceedings qua resumption had already been taken much prior to date (23-3-1990) given in Qazalbash Waqf case PLD 1990 SC 99---Supreme Court dismissed petition and refused leave to appeal.

Nasir Ahmad Khan v. Mst. Ismat Jehan Begum 1968 SCMR 667; Muhammad. Faraz v. Abdul Rashid Khan 1984 SCMR 724; Chief Land Commissioner, Punjab v. Chief Administrator of Auqaf, Punjab PLD 1998 SC 132-149 and Chief Administrator of Auqaf, Punjab v. The Federal Land Commission PLD 1994 Lah. 50 ref.

(c) Land Reforms Act (II of 1977)---

----S. 9---Proceedings qua resumption of excess land---Land under litigation---Effect---Any land under litigation and in excess of entitlement of a person would vest in Government, subject to final adjudication of rights of litigants---Factum of litigation itself would not negate or counter-vesting of property in Government.

Mian Allah Nawaz, Advocate Supreme Court for Petitioner.

Zaman Bhatti, Advocate Supreme Court with Abdul Ghafoor Bhatti, Land Commissioner for Respondents.

Date of hearing: 27th May, 2003.

2006 S C M R 774

[Supreme Court of Pakistan]

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

Syed ZAWAR HUSSAIN SHAH and others---Appellants

Versus

HAIDER and others---Respondents

Civil Appeal No.1598 of .1999, decided on 6th January, 2005.

(On appeal from the judgment dated 19th October, 1999 of the Lahore High Court, Lahore passed in R.F.A. No.268 of 1993).

Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts.72 & 79---Specific performance of agreement to sell---Sale agreement, proof of---Involvement of stamp vendor in criminal case---Obtaining of signatures of executants on blank papers---Effect---Suit filed by plaintiffs was decreed by Trial Court but High Court in appellate jurisdiction dismissed the same---Validity---Execution of the agreement was admitted by defendants who took a plea that their signatures and thumb-impressions were obtained on blank papers---When one of the defendants was confronted about his signatures, he gave an evasive answer by stating that his eye-sight was weak and he could not see his signatures thereon---Plaintiff$ had duly proved execution of sale agreement as well as receipt of payment of entire consideration amount by defendants by producing stamp vendor, deed writer and attesting marginal witnesses---Mere involvement of stamp vendor in a criminal case was not sufficient to discard his evidence---Plaintiffs had discharged their onus of proof of execution of agreement to sell and receipt, therefore, it was for defendants to dislodge the same by getting their signatures and thumb-impressions compared by Trial Court or through Handwriting/ Fingerprint Experts---High Court did not take into consideration the evidence led by the parties in juxta-position and in its proper perspective and the same was misread---Judgment and decree passed by High Court was set aside and that of Trial Court was restored---Appeal was allowed.

Rana Muhammad Sarwar, Advocate Supreme Court for Appellants.

Taqi Ahmad Khan, Advocate Supreme Court for Respondents.

Date of hearing: 6th January, 2005.

2006 S C M R 778

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Rana Bhagwandas, JJ

MUHAMMAD AZHAR KHAN and another---Appellants

Versus

ASSISTANT COMMISSIONER/COLLECTOR, TOBA TEK SINGH and others---Respondents

Civil Appeal No.640 of 1997, decided on 2nd June, 2003.

(On appeal from the judgment of Lahore High Court, Lahore dated 25-10-1995 passed in Review Application No.104 of 1995 in Writ Petition No.11649 of 1992).

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

----S. 114 & O.XLVII, R.1---Limitation Act (IX of 1908), S.5 & Art.173---Dismissal of Constitutional petition for non-prosecution---Setting aside such order in review petition accompanied with application for condonation of delay signed by a third person---Validity---No convincing material was placed on record to show that respondents were not informed about dismissal of Constitutional petition---Application for condonation of delay and affidavit filed by a third person having no power of attorney could not plead cause of remaining respondents in his individual capacity---Nothing on record to show that on basis of which material request of such person to condone delay had been entertained---High Court in such circumstances was not justified to condone delay---Supreme Court allowed appeal and set aside impugned judgment.

Muhammad Haleem v. H.H. Muhammad Naim PLD 1969 SC 270 distinguished.

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

----S. 5---Delay caused in instituting proceedings---Responsibility of party seeking condonation of delay is to explain delay of each day.

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

----Art. 199---Civil Procedure Code (V of 1908), S.114---Dismissal of appeal by Appellate Authority as time-barred---Constitutional petition---Maintainability---Incumbent upon petitioner to have availed alternative remedies under the law before approaching High Court for redressal of grievance by invoking Constitutional jurisdiction under Art.199 of the Constitution---Once appeal was not filed in time before Appellate Authority, then Constitutional petition or review petition before High Court would not be competent.

(d) Punjab Jinnah Abadis for Non-Proprietors in Rural Areas Act (III of 1986)---

---S. 10---Civil Procedure Code (V of 1908), S.114---Plot allotted in one village sought to be given in other village---Appellate Authority dismissed appeal of petitioner---High Court dismissed Constitutional petition for non-prosecution with observations that petitioner had got no legal right to get allotment in other village---Petitioner filed review petition, over which Constitutional petition was restored and case. was remanded to authority for allotment of plot to petitioner in other village, if available---Validity---In presence of such earlier order of High Court, there was no question for its review on any legal premise coupled with the fact that land in other village was not free from encumbrances--Supreme Court accepted appeal and set aside impugned judgment.

Nemo for Appellants.

Muhammad Zaman Bhatti, Advocate Supreme Court for Respondents Nos. 1 to 3.

Shamim Abbas Bokhari, Advocate Supreme Court for Respondents Nos.4 to 205.

Date of hearing; 2nd June, 2003.

2006 S C M R 783

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Ch. Ijaz Ahmad, JJ

ALMAS AHMAD FIAZ----Petitioner

Versus

SECRETARY GOVERNMENT OF THE PUNJAB HOUSING AND PHYSICAL PLANNING DEVELOPMENT, LAHORE and another----Respondents

C.P. No.2401-L of 2005, decided on 27th February, 2006.

(On appeal from the order, dated 13-12-2005 passed by the Lahore High Court in L.A. No.258 of 2004).

(a) Industrial Relations Ordinance (XCI of 2002)---

----S. 46(1)---Constitution of Pakistan (1973), Art.185 (3)---Grievance petition---Limitation---Petitioner was employed on work charge basis in year 1988, later on he was employed on ad hoc basis against a permanent post---In year, 1998 the post was again converted into work charge basis---Constitutional petition as well as Intra-Court Appeal, filed by petitioner against such conversion, were dismissed by High Court, as he did not file any grievance notice under S.46 (1) of Industrial Relations Ordinance, 2002---After dismissal of Intra-Court Appeal, the petitioner gave grievance notice and then filed petition---Labour Court allowed the petition but High Court dismissed the same as grievance notice was time ­barred---Validity---Petitioner had served grievance notice on 7-11-2002, after 3 years and 4-1/2 months---In case cause of action accrued after dismissal of his Intra-Court Appeal by High Court, even then he had not served grievance notice to the employer in terms of S.46(1) of Industrial Relations Ordinance, 2002, within specified period of one month---Question of limitation under S.46 'of Industrial Relations Ordinance, 2002, had to be rigidly construed on the well-known maxim that no party was allowed to circumvent the provisions of statute of limitation---Party approaching Court of competent jurisdiction for redress of grievance beyond specified period of limitation was bound to explain each day's delay to the satisfaction of respective forum because valuable right had accrued to the other side---Supreme Court declined to interfere with the judgment passed by High Court in exercise of labour appellate jurisdiction---Leave to appeal was refused.

Government of Punjab v. Muhammad Salim PLD 1995 SC 396=1995 SCMR 546; Rehmat Ullah and others v. Ulyas Khan 1968 SCMR 975 and Pakistan Railway v. Ghulam Sarwar 1989 SCMR 864 rel.

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

----S. 3---Limitation---Duty of Court---Scope---Duty of Court is to determine question of limitation irrespective of the fact whether such plea was raised or not by virtue of S.3 of Limitation Act, 1908.

Haji Muhammad Shah v. Sher Khan PLD 1994 SC 294 and Province of Punjab and others v. Muhammad Hussain PLD 1993 SC 147 rel.

(c) Administration of justice---

----Pure question of law can be raised at any stage of proceedings.

Haji Abdullah Khan's case PLD 1965 SC 90 rel.

(d) Jurisdiction---

----Exercise of jurisdiction---Mandatory condition, non-fulfillment of---Effect---If a mandatory condition for exercise of jurisdiction by a Court is not fulfilled, then entire proceedings which follow become illegal and suffer from want of jurisdiction.

Mansib Ali's case PLD 1971 SC 124 rel.

(e) Administration of justice---

----Improper advice by counsel---Effect---Judge must wear all laws of country on the sleeves of his robes and failure of counsel to properly advice him is not complete excuse in the matter.

Muhammad Zaman Qureshi, Advocate Supreme Court with Muhammad Islam, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 27th February, 2006.

2006 S C M R 788

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Faqir Muhammad Khokhar and M. Javed Buttar, JJ

COLLECTOR OF CUSTOMS APPEALS (APPRAISEMENT), KARACHI----Appellant

Versus

Messrs U.D.L. INDUSTRIES LTD. and 4 others----Respondents

Civil Appeal No.1889 of 2002, heard on 21st December, 2005.

(On appeal from the judgment, dated 9-2-002 of the High Court of Sindh, Karachi, passed in C.P. No.D-2611 of 1993).

Customs Act (IV of 1969)---

----S. 19---Constitution of Pakistan (1973), Art.185(3)---Exemption from duty granted to respondent by High Court in view of Notification dated 10-9-1991 applicable w.e.f. 12-9-1991---Validity---Notification, dated 10-9-1991 had not been made operative retrospectively---Duty levied had already been cleared by respondent in pursuance of earlier Notification dated 16-5-1991 being a past and closed transaction---Supreme Court accepted appeal and set aside impugned judgment.

M. Bilal, Senior Advocate Supreme Court for Appellant.

Nemo for Respondents.

2006 S C M R 789

[Supreme Court of Pakistan]

Present: Javed Iqbal and Hamid Ali Mirza, JJ

ABDUL LATIF and another----Petitioners

Versus

AQEEL AHMED----Respondent

Civil Petitions Nos.483 and 484 of 2004, decided on 14th December, 2005.

(On appeal from the order, dated 30-12-2003 of the Lahore High Court, Lahore, passed in Civil Revisions Nos.2435 and 2436 of 2003).

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

----O. IX, R.8-Dismissal of suit for non-prosecution on a date fixed for appearance---Validity---Suit could not be dismissed on date fixed for appearance, which could not be equated to "date of hearing".

Manager, Jammu and Kashmir State Property v. Khuda Yar PLD 1975 SC 678 and Qaim Ali Khan v. Muhammad Siddique 1987 SCMR 733 rel.

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

----O. IX, R.8---"date of appearance" and "date of hearing"---Distinction stated.

The "date of hearing" is something more than that of the "date of appearance" simplicitor, and object whereof is to apprise the parties regarding pendency of lis cognizance whereof has been taken and for further steps to be taken and the date fixed for such further steps would be the "date of hearing".

Manager, Jammu and Kashmir State Property v. Khuda Yar PLD 1975 SC 678 and Qaim Ali Khan v. Muhammad Siddique 1987 SCMR 733 rel.

M. Bilal, Senior Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioners.

Kh. M. Farooq, Senior Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondent.

Date of hearing: 14th December, 2005.

2006 S C M R 793

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Faqir Muhammad Khokhar and M. Javed Buttar, JJ

COMMISSIONER OF INCOME-TAX AND WEALTH TAX, PESHAWAR-Petitioner

Versus

Haji MASOOD-UR-REHMAN and others----Respondents

Civil Petitions Nos.1158 to 1162 of 2004 and 1178 to 1182 of 2004, heard on 22nd December, 2005.

(On appeal from the judgment, dated 23-12-2003, passed by the Peshawar High Court, Peshawar, in S.A.O. Nos.16 of 2002, 17 of 2002, 18 of 2002, 19 of 2002, 20 of 2002, 21 of 2002, 22 of 2002, 23 of 2002, 24 of 2002 and 2,9 of 2002).

Wealth Tax Rules, 1963---

----R. 8(3)---Constitution of Pakistan (1973), Art.185(3)---Value of building or vacant plot, determination of---Methodology---Appellate Tribunal's view was that such assessment would be made with due regard to nature and size of property, amenities available and price prevailing for similar property in same locality or in neighbourhood of same locality---Revenue alleged such view of the Tribunal was contrary to provisions of R.8(3) of Wealth Tax Rules, 1963 as exception to such Rule was provided in Provisos 1 and 2 of Wealth Tax Rules, 1963---Supreme Court granted leave to appeal to consider such points raised by Revenue.

1999 PTD (Trib.) 394 ref.

Makhdoom Ali Khan, Attorney-General, Raja Muhammad Irshad, D.A.-G. and Raja Abdul Ghafoor, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2006 S C M R 795

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Nasir-ul-Mulk, JJ

PROVINCE OF PUNJAB through Secretary, Agricultural Department, Lahore and another----Appellants

Versus

SHAHID PERVIZ and others----Respondents

Civil Appeals Nos.1919 to 1924 of 2002, decided on 15th November, 2005.

(On appeal from the judgment of Punjab Service Tribunal, Lahore, dated 12-7-2002 passed in Appeals Nos.580, 668, 841 of 2000).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----Rr. 3(b) & 4(1)(b)(v)---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service, reduction in time scale by three stages and recovery of embezzled amount---Fraudulent withdrawal of G.P. Fund advances on basis of fake vouchers by Cashier in connivance with civil servants, charge of---Service Tribunal in appeal reinstated civil servants in service, but maintained penalty of recovery of amount and reduced penalty of reduction in time scale by one stage---Plea that penalty awarded to civil servants was not proper as Cashier through his affidavit had taken responsibility of fraudulent withdrawal of such amount---Validity---Civil servants without proper verification and vigilance had put their signatures on such vouchers---Civil servants being responsible officials were required to be extra vigilant in such sensitive matters and were not supposed to put signatures on vouchers without verification of sanction for payment---Such admission of Cashier would not absolve civil servants from their responsibility of taking proper care and vigilance in checking bills, so that no mischief could be done by Cashier---Charge against civil servants was only that of negligence as they were neither party 19 such fraud nor beneficiary of transaction---Recovery of financial loss caused to Government by fraud of Cashier would not be proper from civil servants---Supreme Court partly accepted appeal by setting aside penalty of recovery of amount while maintaining penalty of reduction in time scale.

Syed Sajjad Hussain Shah, A.A.-G. and Muhammad Hussain Naqshbandi, Advocate Supreme Court for Appellants (in C.As. Nos.1919-1921 of 2002 and C.As. Nos.1922 -1924 of 2002).

Muhammad Hussain Naqshbandi, Advocate Supreme Court for Respondents (in C.A. No.1919-1921 of 2002).

Syed Sajjad Hussain Shah, A.A.-G. for Respondents (in C.A. No.1922-1924 of 2002).

Date of hearing: 15th November, 2005.

2006 S C M R 800

[Supreme Court of Pakistan]

Present: Javed Iqbal, Mian Shakirullah Jan and Nasir-ul-Mulk, JJ

ZULFIQAR AHMAD----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.90-L of 2005, decided on 15th July, 2005.

(On appeal from order, dated 11-1-2005 passed by the Lahore High Court, Lahore in Criminal Appeal No.160 of 2003).

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S.103---Constitution of Pakistan (1973), Art.185(3)---Section 103, Cr.P.C. having been specifically excluded under the provisions of the Control of Narcotic Substances Act, 1997, non-citing of any witness from the public was not fatal to the prosecution case---Prosecution did not claim that the heroin at the time of recovery was contained in separate packets, rather the same was alleged to have been contained in' a shopping bag and only one sample of one gram heroin, therefore, was sufficient for chemical analysis---Leave to appeal was refused to accused in circumstances.

Taki Ahmad Khan, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 15th July., 2005.

2006 S C M R 801

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Khalil-ur-Rehman Ramday and Nasir-ul-Mulk, JJ

MUHAMMAD ALI ASGHAR SABIR RAJA----Petitioner

Versus

Mst. SAJIDA BASHIR and others----Respondents

C.P.L.A. No.1387 of 2004, decided on 7th February, 2006.

(On appeal from the judgment of Lahore High Court, Rawalpindi Bench Rawalpindi, dated 12-4-2004 passed in F.A.O. No.98 of 2003).

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

----O. XXI, Rr. 72, 84, 85, 86 & 87---Sale through auction---Procedure---Auction-purchaser is required under O.XXI, R.84 C.P.C. to deposit twenty-five per cent of purchase money immediately on fall of hammer---Such amount is required to be paid to the officer of the Court or other person conducting the sale---In case of default of such deposit, the property has to be resold forthwith---Full amount of purchase of money has to be paid, under O.XXI, R.85 C.P.C. by purchaser into Court before the Court closes on 'fifteenth day from the sale of the property, provided that purchaser has the advantage of any set off in calculating the amount so payable, to which he may be entitled under O.XXI, R.72, C.P.C.---In default of payment within the period, under O.XXI, R.86 C.P.C., the amount already deposited may, if the Court thinks fit, after defraying the expenses of the sale, be forfeited to the government and the property would be re-sold and defaulting purchaser forfeit all claims to the property or to any part of the sum for which it may subsequently be sold---Every re-sale of immovable property under O.XXI, R.87 C.P.C., in default of payment of purchase money within the period allowed for such payments, should be made after the issue of fresh proclamation in the manner and for the period prescribed for sale.

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

----O. XXI, Rr.72, 84, 85 & 86---Constitution of Pakistan (1973), Art.185(3)---Sale through auction---Default by auction-purchaser---Illegal order, setting aside of---Sale of property to next highest bidder without re-auction---After default by the auction-purchaser, executing court called the petitioner being next highest bidder to match the bid amount and deposit the same---Such procedure adopted by executing court was set aside by High Court and in post remand proceedings, executing court set aside the earlier order and ordered for re-auction---Plea raised by petitioner was that after confirmation of auction/sale proceedings in his favour executing court was bereft of jurisdiction to undo the same as the order had attained finality---Validity---Initial order of executing court whereby petitioner was called upon to match the purchase money and upon belated payment thereof proceeded to confirm the sale, was void ab initio, corum non judicc and without lawful authority, in view of the provisions of O.XXI, Rr.84, 85 & 86 C.P.C.---Such order could not be sustained in law and executing court was competent to rectify the wrong, moreso, when objection petitions, though in collateral proceedings, were remanded by High Court for decision afresh---Executing court, which passed the subsequent order of sale of property in favour of petitioner was oblivious of the legal position that his order suffered from inherent legal infirmity, which could not be validated by any canon of justice, equity or law---Supreme Court declined to interfere with the order of re-auction passed by executing court and maintained by High Court---Leave to appeal was refused.

A.R. Davar v. Jhinda Ram AIR 1938 Lah. 198; Manilal Mohanlal v. Sayed Ahmed AIR 1954 SC 349; Nichhattar Singh v. Babu Khan AIR 1972 Punjab and Haryana 204; K.L. Reddy v. S.B. Hussain AIR 1977 Andh. Pra. 78; Syed Brothers v. District Council Lyallpur PLD 1977 Lah. 542 and Bashir Ahmad v. Rashid Ehsan PLD 1979 Lah. 116 rel.

Abdul Karim Khan Kundi, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Petitioner.

Gul Zarin Kiani, Advocate Supreme Court and Muhammad Ejaz Khan, Advocate-on-Record for Respondents.

Date of hearing: 7th February, 2006.

2006 S C M R 806

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

SAIFULLAH----Petitioner

Versus

THE STATE and another----Respondents

Criminal Petition No.551-L of 2005, decided on 5th December, 2005.

(On appeal from the judgment, dated 21-10-2005 by the Lahore High Court, Lahore, in Criminal Miscellaneous No.5524/CB of 2005).

Criminal Procedure Code (V of 1898)---

----S. 497---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)---Bail, grant of---Report of Chemical Examiner being in the negative, question whether or not sodomy had been committed with the minor child required further inquiry---So far only two formal police witnesses had been examined---Complainant was stated to be causing delay in the conclusion of the trial---Petition for leave to appeal was converted into appeal which was allowed and the accused was allowed bail in circumstances.

Iqbal Hamid-ur-Rehman, Advocate Supreme Court and A.H. Masood, Advocate-on-Record for Petitioner.

Zubair Khalid, A.A.-G., Punjab, Muhammad Akram, Sub-Inspector, Punjab Police Station Mochiwala, District Jhang (on Court's Call).

Date of hearing: 5th December, 2005.

2006 S C M R 807

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and M. Javed Buttar, JJ

ABDUL SATTAR and another----Appellants

Versus

DIRECTOR FOOD, PUNJAB and others----Respondents

Civil Appeals Nos.316 and 317 of 2003, decided on 25th October, 2005.

(On appeal from the judgment, dated 21-4-2001 passed by Punjab Service Tribunal, Lahore in Appeal No.3094 of 2000).

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

----Arts. 212(3),4 & 25---Civil service---Leave to appeal was granted by Supreme Court to consider the contention of civil servants that on one hand departmental authorities had held them guilty of charges while on the other hand District Food Controller, filed claim regarding shortage of wheat with Railway Authorities---Civil servants also contended that Service Tribunal could not dismiss their appeals without taking into consideration the point of discrimination as well as action of departmental authorities, which was in violation of Arts.4 and 25 of the Constitution---Civil servants further contended that Service Tribunal could not dismiss appeals without adhering to the point that dispute related to year, 1985, whereas departmental proceedings against them were initiated in year, 1995, at a very belated stage i.e. after a span of ten years.

(b) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----R. 4(1)(b)---Dismissal from service---Misconduct---Presumptive liability---Quantum of punishment---On the allegation of shortage of wheat, civil servants were awarded major penalty of dismissal from service and order for recovery of the value of wheat from them was made---Order passed by departmental authorities was maintained by Service Tribunal---Plea raised by civil servants was that they were awarded major penalty of dismissal from service on the basis of presumptive liability---Validity---Shortage of huge quantity of wheat was not shown by civil servants in the record of Pakistan Railway Centre which was subsequently detected in the process of physical check up and consequently the sole question requiring determination would be whether it was a case of en route shortage of wheat or shortage happened at the centre after delivery of consignment---In absence of any evidence that shortage of huge quantity of wheat was the result of short delivery of consignment or wastage due to wreckage in transit, a legitimate presumption would be raised that shortage was caused at Pakistan Railways Centre, therefore, it could not be treated as a case of short delivery---No exception could be taken by Service Tribunal to the finding of departmental authority qua responsibility of civil servants---Penalty of dismissal from service awarded to civil servants was harsh and instead penalty of compulsory retirement would be sufficient to meet the ends of justice---Supreme Court converted penalty of dismissal from service awarded to civil servants into compulsory retirement with the direction that amount recoverable from them as loss of government in terms of order of departmental authority would be deposited by civil servants within three months---Supreme Court also directed that if damages claimed by department from Pakistan Railways were ultimately paid to government, the amount deposited by civil servants would be refunded to them---Appeal was partly allowed.

Shah Abdul Rashid, Senior Advocate Supreme Court with Hafiz Tariq Naseem, Advocate Supreme Court and M.S. Khattak, Advocate-?on-Record for Appellants.

Syed Sajjad Hussain Shah, A.A.-G. and Zaman Bhatti, Advocate-on-Record for Respondents.

Date of hearing: 25th October, 2005.

2006 S C M R 813

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Saiyed Saeed Ashhad, JJ

ABDUL KARIM alias BABOO and another----Petitioners

Versus

THE STATE----Respondent

Cr.P. No.63-K of 2004, decided on 8th August, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.324---Bail, grant of---Further inquiry---Names of accused persons were not mentioned either in F.I.R. or in the statements of prosecution witnesses recorded under S.161, Cr.P.C.---Alleged confessional statement of one of accused persons, which was exculpatory, prima facie, could not be used as material connecting accused with commission of crime---Statement in F.I.R. and that in the confessional statement, were at variance as to use of weapon and its type---Case for further inquiry for grant of bail in favour of accused having been made out, accused were granted bail, in circumstances.

Ghulam Qadir Jatoi, Advocate Supreme Court/Advocate-on-Record for Petitioners.

Dr. Qazi Khalid Ali, Additional Advocate-General, Sindh for the State.

Date of hearing: 8th August, 2005.

2006 S C M R 815

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Nasir-ul-Mulk, JJ

Civil Appeals Nos.113 to 116 of 2005

INSPECTOR-GENERAL (PRISONS) N.-W.F.P., PESHAWAR and another----Appellants

Versus

Syed JAFFAR SHAH, Ex-Assistant Superintendent Jail and others----Respondents

(On appeal from the judgment of Service Tribunal, N.-W.F.P., Peshawar, dated 7-6-2003 passed in Appeals Nos.62, 118, 79 and 124 of 2002).

Civil. Petitions Nos.665-P and 682-P and 1803 of 2003

MAQSOOD AHMAD and others---Petitioners

Versus

GOVERNMENT OF N.-W.F.P. through Secretary Home Department, Peshawar and others---Respondents

(On appeal from the judgment of Service Tribunal, N.-W.F.P., Peshawar, dated 7-6-2003 passed in Appeals Nos.62, 118, 79 and 124 of 2002).

Civil Appeals Nos.113 to 116 of 2005 and Civil Petitions Nos.665-P, 682-P and 1803 of 2003, decided on 21st November, 2005.

(a) North-West Frontier Province Removal from Service (Special Powers) Ordinance (V of 2000)-----

----S. 3---Pakistan Prison Rules, 1978, Rr.340(i)(iv), 341, 342, 1168, 1024 & 1072(1)---North-West Frontier Province Service Tribunals Act (I of 1974), Ss.4 & 7(1)---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Jail officials---Facilitating escape of prisoners from jail, charge of---Service Tribunal in appeal converted such penalty into reduction in time scale by three stages and reinstated civil servants in service with back-benefits---Plea of department was that reduction in quantum of penalty and exoneration of civil servants from charges had potential tendency of encouraging perpetuation of further indiscipline in the members of disciplined force contributing to the ever deteriorating law and order situation contrary to the deterrent aspect of punitive administration of justice, which substantially was a question of public importance within contemplation of Art.212(3) of the Constitution---Supreme Court granted leave to appeal to consider such plea.

(b) Pakistan Prison Rules, 1978---

----Rr. 340(i)(iv), 341 & 342---Condemned prisoner---Duties of Warder, Head Warder, Assistant Superintendent Jail, Deputy Superintendent Jail and Superintendent Jail stated.

According to Rule 340(i)(iv) of Pakistan Prison Rules (Jail Manual) not more than one prisoner should be permitted to occupy the courtyard - for half an hour except with special permission of Superintendent Jail. It is the duty of Warder to personally watch the cell of prisoner, but door must be opened in his presence and similarly Head Warder is bound to visit the cell occupied by a condemned prisoner, and in case of any suspicion, he shall report the matter to Deputy Superintendent Jail as provided under Rule 341 thereof.

The Superintendent Jail has to keep close watch on his subordinates regarding performance of their duties in accordance with Rules and must be vigilant about all affairs of the jail. The Superintendent Jail being responsible for the administration of jail had collective responsibility for the lapses on the part of his subordinates; therefore, he must suitably adopt preventive measures to avoid any unpleasant incident.

(c) North-West Frontier Province Removal from Service (Special Powers) Ordinance (V of 2000)---

----S. 3---Pakistan Prison Rules, 1978 Rr.340(i)(iv), 341, 342, 1168, 1024 & 1072(1)---North-West Frontier Province Service Tribunals Act (I of 1974), Ss.4 & 7(1)---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Warder, Head Warder, Assistant Superintendent Jail, and Superintendent Jail---Facilitating escape of prisoners from jail, charge of---Service Tribunal in appeal altered such penalty into reduction in time scale by three stages and reinstated civil servants in service with back-benefits---Plea of department was that such reduction in quantum of penalty would encourage perpetuation of indiscipline amongst jail officials---Validity---Ladder being used for white wash had been kept within reach of condemned prisoner who was in possession of pistol also---Without connivance of jail staff, prisoner could not implement scheme of escape from jail---Such incident was result of direct involvement of civil servants---Superintendent Jail was overall responsible for administration of jail, Assistant Superintendent Jail was on supervisory duty at relevant time, Head Warder was deputed for search of cell, and Warder in the courtyard was responsible for search of condemned prisoners and visitors---Civil servants being grossly negligent in performing their duties had rightly been found guilty of charge---In cases of extreme negligence and gross misconduct, such alternation of punishment or unnecessary laxity and leniency in matter of punishment might not be justified as retention of an irresponsible person in sensitive service of Jail Department would be against the policy of administrative law---All civil servants being equally responsible for such incident, would deserve equal treatment in matter of punishment---Supreme Court accepted appeal, set aside impugned judgment and imposed penalty of compulsory retirement on civil servants.

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

-------S. 7(1)-Power of Service Tribunal to vary or modify penalty awarded by competent authority---Scope---Where quantum of punishment did not commensurate with charge, then Service Tribunal in its discretion in a suitable case may modify penalty in the light of charge---Such discretionary power must be exercised in a judicious manner and in the spirit of law---Interference in quantum of impugned punishment would not be proper without showing reasonable ground that penalty awarded by competent authority was harsh as compared to nature of charge---Exercise of discretion in an improper manner would definitely be a legal question of immense importance as wrong exercise of discretion or misuse of discretionary jurisdiction might defeat the purpose of law---Principles.

Muhammad Saeed, A.A.-G., N.-W.F.P., Peshawar for Appellants (in C.As. Nos.113-116 of 2005).

Khushkhadil Khan, Advocate Supreme Court for Respondents (in C.A. No.113 of 2005).

Khalid Khan Advocate Supreme Court for Respondent (in C.As. Nos.114 and 116 of 2005).

Shah Abdur Rashid Senior Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Respondent (in C.A. No.115 of 2005).

Khalid Khan, Advocate Supreme Court for Petitioner (in C.Ps. Nos.665-P and 682-P of 2003).

Shah. Abdul Rashid, Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Petitioner (in C.P. No.1803 of 2003).

Nemo for Respondents.

Date of hearing: 21st November, 2005.

2006 S C M R 826

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

FARZANA NAHEED and others----Petitioners

Versus

THE STATE----Respondent

Criminal Petition No.559/L of 2005, decided on 6th December, 2005.

(On appeal from the order, dated 19-10-2005 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.7025/H of 2005).

Criminal Procedure Code (V of 1898)---

---S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10/11---Constitution of Pakistan (1973), Art.185(3)---Bail, grant of---Complainant although claimed second marriage with the lady accused, yet he had not attached any Nikahnama to substance his claim---Lady accused had filed a suit for jactitation and the proceedings in the criminal case had been stayed to await the decision in the suit---Relationship of both the accused, prima facie, did not appear to be violative of any penal law, as they claimed to be living as husband and wife---Accused were in confinement for the last about nine months and their trial was not likely to conclude within a reasonable time---Accused were admitted to bail in circumstances.

Seerat Hussain Naqvi, Advocate Supreme Court and Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Petitioners.

Zubair Khalid, A.A.-G. Punjab for the State.

Date of hearing: 6th December, 2005.

2006 S C M R 827

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Nasir-ul-Mulk, JJ

RIAZ HUSSAIN----Petitioner

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB and 2 others----Respondents

Civil Petition No.3071 of 2003, decided on 14th November, 2005.

(On appeal from the judgment of the Punjab Service Tribunal, Rawalpindi, dated 27-9-2003 passed in Appeal No.1081 of 2003).

(a) Criminal trial---

----Investigation, defect in---Effect---Such defect might not be a valid ground for discharge of an accused, but insufficiency in evidence would definitely be a strong ground to discharge him.

(b) Punjab Police (Efficiency and Discipline) Rules, 1975---

----Rr. 3 & 4(1)(b)(v)---Dismissal from service---Misconduct, charge of---Omission of civil servant as Investigating Officer of a criminal case to obtain signatures of witnesses on recovery memo. of stolen vehicle---Magistrate discharge accused for want of incriminating evidence on record to connect him with commission of offence of theft---Initiation of disciplinary proceedings against civil servant (1.0.) on charge of negligence for such omission---Penalty of dismissal imposed by departmental authority was upheld by Service Tribunal---Validity---Magistrate had discharged accused for want of evidence and not only for defect in recovery memo. or in investigation---Such omission might or might not be a factor to damage prosecution case, but in absence of any evidence that such omission was intentional, same would be treated as bona fide mistake, which might not constitute an act of misconduct---Supreme Court accepted appeal, set aside impugned judgment and reinstated civil servant in service without back benefits treating the intervening period as leave without pay.

Roy Muhammad Nawaz Khan Kharal, Advocate Supreme Court for Petitioner.

Syed Sajjad Hussain Shah, A.A.-G. for Respondents.

Date of hearing: 14th November, 2005.

2006 S C M R 830

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

Syed YOUSIF ALI through L.Rs.----Petitioner

Versus

MUHAMMAD HASHAM through L.Rs. and others----Respondents

C.P.L.A. No.509-K of 2004, decided on 5th October, 2005.

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

----Ss. 2(f), (j) & 15(2)(ii)---Constitution of Pakistan (1973), Art.185(3)---Petitioner, instead of justifying his default in payment of rent for more than two decades, had agitated question of relationship of landlord and tenant without any legal justification, raising self-contradictory, inconsistent, mutually destructive and shifting pleas from time to time before lower forums---Such was a glaring instance of frivolous and vexatious litigation, which must be curbed at all levels---Observations of High Court, on the subject having not been controverted at the Bar, hardly any ground existed for interference by Supreme Court---Leave to appeal was refused.

Ghulam Qadir Jatoi, Advocate-on-Record/Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 5th October, 2005.

2006 S C M R 832

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Karamat Nazir Bhandari, JJ

HAMID-UL-HUSSAIN and others----Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary, Establishment and others----Respondents

Civil Petitions Nos.1153, 1154, 1460, 1496, 1498, 1501, 1532 to 1534, 1571 to 1578 and 1742 of 2004, decided on 15th February, 2006.

(On appeal from the judgment, dated 24-4-2004 in Appeal No.165(R)CS of 2000 and others passed by the Federal Service Tribunal, Islamabad).

Civil Servants (Seniority) Rules, 1993---

----Rr. 4 & 7---Seniority---Appointment of civil servant as Section Officer by transfer on deputation in year 1989 till his appointment as Section Officer in Office Management Group (O.M.G.)---Completion of tenure of civil servant's deputation in year 1992---Appointment of civil servant on regular basis in year 1999---Claim for seniority by civil servant from date of initial deputation or completion of 3 years' deputation period in year 1992---Validity---Civil servant had neither protested against induction of some deputationists in O.M.G. in year 1989 nor urged such claim during period from 1992 to 1999---Civil servant could not wriggle out of unconditional consent given by him in year 1999 for seeking induction in accordance with R.4 of Civil Servants (Seniority) Rules, 1993---Induction of civil servant had not taken place earlier and that until year 2000, he had not agitated against inaction to absorb him in O.M.G.---Such conduct/inaction of civil servant for years would amount to acquiescence---Civil servant's silence/inaction for 7/8 years had disentitled him to such claim.

Muhammad Arshad Sultan, Section Officer, Cabinet Division, Islamabad and another v. Prime Minister of Pakistan, Islamabad and others PLD 1996 SC 771; Mst. Fakhera T. Abbasi, S.O. Finance Division, Islamabad and 2 others v. The Secretary, Establishment Division, Islamabad and 63 others 1998 SCMR 432; Mehr Sher Muhammad and others v. Federation of Pakistan 1999 SCMR 185; Muhammad Zafar Khan v. Secretary, Establishment Division, Islamabad and 155 others 1995 SCMR 1840; Muhammad Zakir Khan v. Government of Sindh and others 2004 SCMR 497 ref.

Muhammad Akram Sheikh, Senior Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner (in C.Ps. Nos.1153-1154 and C.P. 1577 of 2004 only).

All in person (in other connected petitions).

Itizaz Ahsan, Senior Advocate Supreme Court for Respondents (in C.Ps. Nos.65, 73, 183 and 219 of 2004 only).

Ch. Afrasiab, Advocate Supreme Court (absent) for Respondents.

Respondent No.24 in person.

Date of hearing: 15th February, 2006.

2006 S C M R 839

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Ch. Ijaz Ahmad, JJ

KHUSHI MUHAMMAD----Petitioner

Versus

ABDUL GHAFOOR and others----Respondents

Constitutional Petition No.1060-L of 2004, decided on 12th December, 2005.

(On appeal from the order, dated 12-12-2003 passed in Writ Petition No.16244 of 2003 and dated 6-1-2004 passed in I.C.A. No.4 of 2004 by Lahore High Court).

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S. 16---Constitution of Pakistan (1973), Art.185(3)---F.I.R. lodged against the accused had been quashed by High Court in exercise of its constitutional jurisdiction and the Intra-Court appeal filed by the complainant against that order was dismissed---Co-accused in the case had already been acquitted by the Trial Court during the pendency of the present petition---Supreme Court had ample jurisdiction to look into the subsequent events at the time of deciding the cases---No useful purpose could come out by setting aside the impugned order in view of the acquittal of co-accused---Concurrent findings of the Courts below warranted no interference---Leave to appeal was declined to complainant accordingly.

Muhammad Latif, A.S.-I. Police Station Sadar, Sheikhupura v. Sharifan Bibi and another 1998 SCMR 666 ref.

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

---Art. 185---Appellate jurisdiction of Supreme Court---Scope---Subsequent events can be considered---Supreme Court has ample jurisdiction to look into the subsequent events at the time of deciding the case.

Mst. Amina Begum and others v. Mehar Ghulam Dastgir PLD 1978 SC 220 ref.

Dr. Muhammad Akmal Saleemi, Advocate Supreme Court with Mahmood A. Qureshi, Advocate-on-Record for Petitioner.

M. Hanif Zahir, Advocate-on-Record for Respondents. Maqsood Hussain, Inspector/S.H.O. Gogera District Okara.

Date of hearing 12th December, 2005.

2006 S C M R 841

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

MUHAMMAD IQBAL----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.19 of 2005, decided on 24th January, 2006.

(On appeal from the judgment, dated 17-1-2005 of the Lahore High Court, Lahore, passed in Criminal Appeal No.187 of 2000).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Presence of eye-witnesses at the site was established and their evidence did not suffer from any inherent defect or material lacuna, which was cogent and convincing---Acquitted accused being empty-handed at the time of incident had rightly been extended the benefit of doubt by the Trial Court and his case was not at par with that of the present accused who was proved to have fired at the deceased---High Court had already taken a lenient view by reducing the sentence of accused from death to imprisonment for life---No illegality or irregularity could be pointed out in the impugned judgment warranting interference by Supreme Court---Leave to appeal was refused too accused accordingly.

Hifz-ur-Rehman, Advocate Supreme Court for Petitioners.

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

Date of hearing: 24th January, 2006.

2006 S C M R 844

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Ch. Ijaz Ahmad, JJ

SHAFAQAT ALI and another----Petitioners

Versus

THE STATE----Respondent

Criminal Petition for Leave to Appeal No.275-L of 2005, decided on 29th November, 2005.

(On appeal from the order of the Lahore High Court, dated 13-4-2005 passed in Criminal Appeal No.1691 of 2001).

Penal Code (XLV Of 1860)----

--S. 302(b)/34---Constitution of Pakistan (1973), Art.185(3)---Promptly lodged F.I.R. had ruled out the possibility of any pre-concert---Each accused was specifically named in the F.I.R. with a definite role assigned to him, which was corroborated by medical evidence---None of the three eye-witnesses had any direct enmity with the accused--Concurrent findings of fact qua the guilt of the accused being unexceptionable did not merit interference-Co-accused had been acquitted by Trial Court on the plea of alibi having been proved on record and his acquittal was affirmed by High Court, and thus, besides the initial presumption of innocence attached to him, a double presumption of innocence was accorded by the two Courts below---Leave to appeal was declined in circumstances.

Mushtaq Ahmad v. The State PLD 2004 SC 150 ref.

M. Asghar Rokhari, Advocate Supreme Court for Petitioners.

Nemo for the State.

Date of hearing: 29th November, 2005.

2006 S C M R 846

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Nasir-ul-Mulk, JJ

ABDUL SATTAR----Appellant

Versus

PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY and 2 others----Respondents

Civil Appeal No.953 of 2004, decided on 10th November, 2005.

(On appeal from the judgment, dated 1-7-2003 passed by the Federal Service Tribunal in Appeal No.83(K)CS of 2000).

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

---Rr. 3(b), 4(1)(b)(v), 5 & 6---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Causing loss to exchequer, charge of---Dismissal of appeal by Service Tribunal---Non-holding of regular enquiry and absence of grounds for dispensing therewith before taking such action by authority resulting in violation of principles of natural justice---Enquiry report supporting civil servant's case not considered by authority or Service Tribunal---Supreme Court granted leave to appeal to consider, inter alia, such contentions of civil servant.

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

---Rr. 5(1)(iii) & 6---Misconduct, charge of---Major penalty, imposition of---Holding or non-holding of regular inquiry by competent authority---Scope---Summary procedure would be followed in a case in which no factual controversy was involved or facts were admitted, otherwise dispensation with regular inquiry would amount to deprive civil servant from right of defence and fair opportunity of hearing---Principles.

The competent authority may, in exercise of the powers under Rule 5(iii) of the Government Servants (Efficiency and Discipline) Rules, 1973, by dispensing with the requirement' of regular inquiry, follow the summary procedure, but this power must be exercised in exceptional cases, in which either there is no factual controversy or the facts are admitted. The competent authority may, without holding a regular inquiry, pass the final order, if the charge is not based on disputed questions of facts, otherwise dispensation with regular inquiry would amount to deprive a person from right of defence and fair opportunity of hearing. The matter involving controversial questions of facts cannot be decided without detailed scrutiny and proper appreciation of oral and documentary evidence, and this is against the principle of natural justice to draw a conclusion adverse to the interest of a person on the basis of disputed facts without recording the evidence and providing him proper opportunity of cross-examining the witnesses and to make his defence.

In the normal circumstances, a case of misconduct involving controversial question of fact must not be decided in summary manner, as the dispensation of regular inquiry in such a case would amount to defeat the law and condemn a person unheard. The discretionary power of the dispensation of the regular inquiry should be exercised only in exceptional circumstances and not as a general rule in every case as the exercise of the power of dispensation with regular inquiry in a case involving factual controversy is against the spirit of law and the concept of substantial justice. The departmental authorities are certainly not required to follow the procedure of the regular Courts and observe the technicalities of law for determining the question of guilt or innocence of a person, but the fair and reasonable opportunity of hearing to enable a person to make his defence, is an inalienable right of a person facing the charge of misconduct.

Ghulam Muhammad Khan v. Prime Minister of Pakistan and others 1996 PLC (CS) 868 and Nawaz Khan and another v. Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and others PLD 1994 SC 222 rel.

(c) Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 3(b), 4(1)(b)(v), 5 & 6---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Causing loss to exchequer, charge of---Non-holding of regular enquiry before imposition of penalty by competent authority---Dismissal of appeal by Service Tribunal---Validity---Correctness of such charge could not possibly be determined without a regular inquiry with participation of civil servant and detailed scrutiny of record to ascertain that in what manner, civil servant was responsible for causing loss to exchequer---Supreme Court accepted appeal, set aside impugned judgment and reinstated civil servant in service with back benefits subject to result of inquiry to be held afresh into such allegations.

Basharat Ali v. Director Excise and Taxation, Lahore PLJ 1987 SC 1393; Zahoor Ahmed v. WAPDA 2001 SCMR 1566; Syed Yaqoob Shah v. Xen PESCO (WAPDA) Peshawar PLD 2002 SC 667 and Abdul Qayyum v. D.G. Project Management Organization 2003 SCMR 1110 ref.

Ghulam Muhammad Khan v. Prime Minister of Pakistan and others 1996 PLC (CS) 868 and Nawaz Khan and another v. Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and others PLD 1994 SC 222 rel.

M.M. Aqil Awan, Advocate Supreme Court for Appellant.

Muhammad Munir Peracha and Ch. Muhammad Akram, Advocates-on-Record for Respondents.

Date of hearing: 10th November, 2005.

2006 S C M R 853

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Ch. Ijaz Ahmad, JJ

MUHAMMAD ILYAS----Petitioner

Versus

IMRAN and others----Respondents

Criminal Petitions Nos.453-L and 454-L of 2003 and Jail Petition No.96 of 2004, decided on 22nd November, 2005.

(On appeal from the order, dated 7-5-2003 of the Lahore High Court, Lahore, passed in Criminal Appeal No.581 of 1999, Murder Reference No.207 of 1999 and Criminal Revision No.341 of 2002).

Penal Code (XLV of 1860)---

----S. 302(b)/34---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to accused to consider whether the evidence of last-seen, extra-judicial confession allegedly made by co-accused, abscondence of accused after the occurrence and the incriminating recoveries, even when put together, were sufficient for recording/ maintaining the conviction against the accused.

Munir Ahmad Bhatti, Advocate Supreme Court for Petitioner (in C.Ps. Nos.453 and 454-L of 2005).

Nemo for Respondents.

Date of hearing: 22nd November, 2005.

2006 S C M R 854

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Ch. Ijaz Ammad, JJ

MUHAMMAD TANVEER----Petitioner

Versus

CHIEF SECRETARY, GOVERNMENT OF PUNJAB and others ----Respondents

C.P. No.348-L of 2005, decided on 17th March, 2006.

(On appeal from the order, dated 27-12-2005 passed by Punjab Service Tribunal in Appeal No.2127 of 2005).

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

----S.4---Penalty of reduction in pay scale by two stages---Failure to specify period of such penalty---Departmental authorities imposed penalty of reduction in pay scale by two stages on civil servant but no such period was specified---Effect---Supreme Court converted the petition for leave to appeal into appeal and set aside the judgment passed by Service Tribunal and case was remanded to the authorities to specify duration of period of penalty of such reduction in pay---Appeal was allowed.

Naim-ul-Hassan Sherazi, Advocate Supreme Court with Haji M. Rail Siddiqui, Advocate-on-Record for Petitioner.

Zubair Khalid, A.A.-G., Punjab, Syed Riaz Hussain, Officer Incharge Cell Excise and Taxation Department, Lahore for Respondents.

Date of hearing: 17th March, 2006.

2006 S C M R 856

[Supreme Court of Pakistan]

Present: Javed Iqbal, Mian Shakirullah Jan and Nasir-ul-Mulk, JJ

RIASAT ALI BHATTI----Petitioner

Versus

THE STATE and others----Respondents

Criminal Petition No.59-L of 2003, decided on 13th July, 2005.

(On appeal from the order, dated 16-1-2004 of Lahore High Court, Lahore, passed in Criminal Revision No.988 of 2003).

Penal Code (XLV of 1860)---

----Ss. 302/324/34---Constitution of Pakistan (1973), Art.185(3)---Guilt or innocence of the accused could only be decided on the basis of evidence which was yet to be recorded by Trial Court---Contentions agitated before the Supreme Court could be raised before the Trial Court, where proper opportunity of hearing would be afforded to the parties to substantiate their view point---Prima facie case was made out on the basis of inquiry report conducted by the Magistrate, which had been considered by High Court---Question of genuineness of the alleged encounter could not be determined by Supreme Court while exercising jurisdiction under Art.185(3) of the Constitution as the matter fell within the jurisdiction of Trial Court---Leave to appeal was refused in circumstances.

Masood-ur-Rehman Mirza, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 13th July, 2005.

2006 S C M R 859

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., M. Javed Buttar and Tassaduq Hussain Jillani, JJ

MORTAR INVESTMENTS INTL. LIMITED ICI PAKISTAN LIMITED----Petitioner

Versus

FEDERATION OF PAKISTAN and others----Respondents

C.P.L.As. Nos.1616 and 1617 of 2003, heard on 14th December, 2005.

Income Tax Ordinance (XXXI of 1979)---

----Second Schedule, Part-1 Cls.77 & 77-A---Constitution of Pakistan (1973), Art.185(3)---Exemption from income Tax---Claim for---Grievance of petitioner was two fold; firstly that his application under clause 77 of Second Schedule to Income Tax Ordinance, 1979 was not considered by the Central Board of Revenue and was rejected by Finance Department, although same relief was provided to another foreign Company, which act was discriminatory; secondly that under clause 77-A of Second Schedule to Income Tax Ordinance, 1979, exemption was available to loans which were used for "industrial investment" and there was no exclusion of loans obtained as working capital from such investment---Clause 77 of Second Schedule to Income Tax Ordinance, 1979 had indicated that Federal Government could approve or disapprove grant of exemption from levy of income tax and that clause, prima facie, was not qualified by expression such as "utilized for industrial investment in Pakistan" or "duly registered with the State Bank of Pakistan" as appearing in clause 77-A of the Schedule and it was in exercise of power under said clause that the other referred company was granted a similar exemption---High Court did not give any finding on that although there was ground in the body of constitutional petition which stood dismissed vide impugned judgment---Issues raised in the peculiar facts and circumstances of the case, no longer remained merely questions of fact which could justly and efficaciously be decided at the level of Deputy Commissioner Income Tax---Even before Supreme Court despite repeatedly questioned, Deputy Attorney-General was not in a position to explain the basis for excluding the working capital from the expression "Industrial investment" appearing in clause 77-A of Second Schedule to Income Tax Ordinance, 1979---Impugned judgment being untenable was set aside and, petitions for leave to appeal were allowed---Constitutional petitions would be deemed to be pending before High Court which would be decided within specified period.

Syed Sharif-ud-Din Pirzada, Senior Advocate Supreme Court along with Danish Zubairi and Mehr Khan Malik, Advocates-on-Record for the Petitioner.

Raja Muhammad Irshad, D.A.-G. and Raja Abdul Ghafoor, Advocate-on-Record for the Respondent No.1.

Nemo for Respondents Nos.2 to 6.

Date of hearing: 14th December, 2005.

2006 S C M R 864

[Supreme Court of Pakistan]

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

Messrs FLYING BOARD AND PAPER PRODUCTS---Petitioner

Versus

DEPUTY COLLECTOR, CUSTOMS---Respondent

Civil Petition No.718-L of 2003, decided on 27th March, 2003.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 10-3-2003 passed in Customs Appeal No.428 of 2002).

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

----Ss. 25 & 25-B---Interpretation of S.25, Customs Act, 1969---Section 25 of Customs Act, 1969 is a charging section vesting power with Customs Authorities to determine value of goods for purpose of charging customs duty---Federal Government under S.25-B of the Act is empowered to issue notification providing minimum value of goods at which same should be assessed for purpose of payment of customs duty in a case where its value cannot be determined or assessed.

(b) Customs Act (IV of 1969)-

----Ss. 25 & 25-B---Acceptance of value of imported goods declared in Bill of Entry for purpose of charging customs duty---Plea of importer was that value of goods shown in Bill of Entry had gone down in country of origin on account of fluctuation in market price, thus, customs duty should have been charged on basis of minimum value entered in notification issued under S.25-B of Customs Act, 1969---Validity---Onus was on importer to prove by evidence as to what extent, value of goods had decreased---In absence of any such evidence, Custom Authorities were justified in law to accept value of goods declared in Bill of Entry as value for purpose of charging customs duty---Value entered in such notification would not be relevant as evidence in nature of declaration by importer about actual value of goods in Bill of Entry was available, which could legally be made basis for assessing goods at such value---No exception could legally be taken to impugned judgment--Supreme Court dismissed petition and refused leave to appeal.

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

----S. 25-B---Minimum value of imported goods entered in notification issued under S.25-B of Customs Act, 1969---Validity---Such value would not be relevant, where evidence as to declaration by importer about actual value of goods in Bill of Entry was available, which could be made basis for assessing goods at such value.

?

Irfan Qadir, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

M. Karim Malik, Advocate Supreme Court for Respondent.

Date of hearing: 27th March, 2003.

2006 S C M R 867

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

Ch. RIAZ AHMAD---Petitioner

Versus

PUNJAB TEXTBOOK BOARD, LAHORE and others---Respondents

Civil Petition No.1291-L of 2000, decided on 18th March, 2003.

(For Leave to appeal from judgment dated 29-3-2000 passed by the Lahore High Court, Lahore passed in I.C.A. No.166 of 2000).

Constitution of Pakistan (1973)---

----Art. 185(3)---Civil Procedure Code (V of 1908), S.11---Removal from service---Such order challenged in earlier Constitutional petition remained upheld upto Supreme Court---Petitioner filed second Constitutional petition against such order on the ground that employer had re-employed his co-accused, while he continued to have a stigma of removal from service---Second Constitutional petition was dismissed by Single Bench and Division Bench of High Court---Validity---Order of dismissal from service of petitioner had attained finality on account of dismissal of his earlier petition by Supreme Court---Petitioner was precluded by principle of res judicata from re-agitating same matter on same plea---Petitioner had been heard during course of departmental appeal---Supreme Court dismissed petition.

Khondkar Ali Afzal v. Pakistan and another PLD 1959 (W.P.) Kar. 105 reversed.

Pakistan through Secretary, National Assembly v. Khondkar Ali Afzal and another PLD 1960 SC 1 fol.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 18th March, 2003.

2006 S C M R 869

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

MANZOOR HUSSAIN---Petitioner

Versus

KARAM HUSSAIN and others---Respondents

Civil Petition for Leave to Appeal No.300/L of 2000, decided on 18th March, 2003.

(On appeal from the judgment dated 13-12-1999 of the Lahore High Court, Multan Bench, Multan, passed in Writ Petition No.218 of 1982).

Constitution of Pakistan (1973)---

----Arts. 185(3)---Auction of State land---Petitioner as auction purchaser neither deposited 1 /3rd of sale price within stipulated period nor paid balance price---Collector resumed land on such failure of petitioner, but on remand allowed him to pay balance price with 14% compound interest---Such order was upheld by Commissioner, Board of Revenue and High Court in Constitutional petition---Validity---Question of fact had been determined by all such forums after appreciating entire record---No illegality or legal infirmity was found in impugned judgment---Supreme Court dismissed petition and refused leave to appeal.

A.H. Masood, Advocate Supreme Court for Petitioner.

Basit Waheed, Advocate Supreme Court for Respondent No.1

Muhammad Akhtar, Junior Clerk with Din Muhammad Patwari (on Court notice) for Respondents Nos.2 to 4.

Date of hearing: 18th March, 2003.

2006 S C M R 871

[Supreme Court of Pakistan]

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

Messrs J.K. (TECH) (PVT.) LIMITED---Petitioner

Versus

INCOME TAX APPELLATE TRIBUNAL, LAHORE and 2 others---Respondents

Civil Petition for Leave to Appeal No.1911-L of 2000; decided on 22nd June, 2001.

(On appeal from the judgment dated 1-6-2000 of the Lahore High Court passed in I.T.A. No.476 of 2000).

Income Tax Ordinance (XXXI of 1979)---

---Ss. 62, 80-D & 136---Rectification application---Limitation---Assessment order under S.62 of Income Tax Ordinance, 1979 determining liability of assessee under S.80-D thereof---Non-filing of appeal against order under S.62 of Income Tax Ordinance, 1979---Filing of rectification application against order under S.80-D of the Ordinance---Appeal before Commissioner against dismissal of application by Deputy Commissioner---Dismissal of appeal for being time-barred on the ground that as order under S.80-D of Income Tax Ordinance, 1979 was integral part of order under S.62 therefore, appeal was barred from the date of order made originally under S.62 thereof---Validity---Order passed on rectification application was appealable---Question of limitation qua such appeal should have been decided with reference to order passed on rectification application in relation to order made under S.80-C of the Ordinance---Order on rectification application was separate and independent order, thus, appeal against same could not be taken and assumed as barred by time---Appeal was not barred by time.

Khawaja Tariq Rahim, Advocate Supreme Court, Mansoor Shah, Advocate with permission, Tanvir Ahmad, Advocate-on-Record for Petitioner.

M. Ilyas Khan, Advocate Supreme Court and M. Aslam Chattha, Advocate-on-Record for Respondents.

Date of hearing: 22nd June, 2001.

2006 S C M R 873

[Supreme Court of Pakistan]

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

GHULAM HUSSAIN and others---Petitioners

Versus

THE STATE and others---Respondents

Crl. P. No.295 of 2001 and Jail Petition No.202 of 2001, decided on 6th June, 2003.

(On appeal from the judgment dated 11-10-2001 of the Lahore High Court, Multan Bench in Cr.A.No.6 of 1999).

Penal Code (XLV of 1860)---

----Ss. 302/34 & 324/34---Leave to appeal was granted by Supreme Court to accused in one case to consider only the quantum of sentence and in the other case to determine as to whether the injury attributed to accused could have been caused by the weapon used by him during the occurrence.

Ahmed Raza Khan Kasuri, Advocate Supreme Court for Petitioners.

Muhammad Zaman Bhatti, Advocate Supreme Court and Ch. M. Akram, Advocate-on-Record for the Complainant.

Date of hearing; 6th June, 2003.

2006 S C M R 875

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

IBRAHIM & SONS---Petitioner

Versus

PUNJAB TEXTBOOK BOARD and others---Respondents

Civil Petition for Leave to Appeal No.941/L of 2000, decided on 5th March, 2003.

(On appeal from the order dated 11-2-2000 of the Lahore High Court, Lahore, passed in Writ Petition No.2170 of 2000).

West Pakistan Textbook Board Ordinance (XLI of 1962)---

----S. 26---Constitution of Pakistan (1973), Arts.185(3)---Imposition of penalty on publisher by Board while looking after work of Director (Technical) as stop-gap arrangement with order of the Board---Constitution petition filed by publisher was dismissed by High Court---Validity---According to S.26 of West Pakistan Textbook Board Ordinance, 1962, no act or proceeding of Board or Advisory Council would be invalidated merely for existence of a vacancy in Board or Advisory Council or any irregularity in appointment of any member of Board or Advisory Council---No illegality or legal infirmity having been found in impugned judgment, Supreme Court dismissed petition and refused to leave to appeal.

Ch. Atta Ullah, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 5th March, 2003.

2006 S C M R 876

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

IFTIKHAR MUBEEN ARSHEE---Petitioner

Versus

DEPUTY COMMISSIONER/CHAIRMAN, BOARD OF GOVERNORS, KASUR PUBLIC SCHOOL, KASUR and others---Respondents

Civil Petition No.115-L of 2000, decided on 20th March, 2003.

(For Leave to appeal from the judgment dated 18-10-1999 passed by the Lahore High Court, Lahore passed in I.C.A. No.856 of 1999).

Societies Registration Act (XXI of 1860)---

----S. 20--Constitution of Pakistan (1973), Art.185(3)---Employee of a school registered under Societies Registration Act, 1860---Termination of services of employee by Deputy Commissioner as an Ex-Officio Chairman of Board of Governors of such school---High Court dismissed Constitutional petition on the ground that such school was a non-statutory body and there were no statutory rules of service of its employees---Validity---Employees of such school were not governed by any statutory rules of service---Income derived or expenditure incurred by such school did not form part of Provincial Consolidated Fund or public exchequer-Merely because Deputy Commissioner of the District was an Ex-Officio Chairman of Board of Governors of such school could not be a basis for treating same to be a Government institution---High Court had rightly refused to interfere in the matter---Supreme Court dismissed petition in circumstances.

Aitchison College, Lahore through its Principal v. Muhammad Zubair and others PLD 2002 SC 326 and' Sabhajit Tweary v. Union of India and others AIR 1975 SC 1329 ref.

Petitioner in person.

Talat Farooq, Advocate Supreme Court and Muhammad Ozair Chughtai Advocate-on-Record for Respondents.

Date of hearing: 20th March, 2003.

2006 S C M R 879

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Tassaduq Hussain Jillani, JJ

MUHAMMAD ASHRAF---Petitioner

Versus

NISAR AHMAD and 3 others---Respondents

Civil Petition No.1571-L of 2003, decided on 25th August, 2004.

(On appeal from the judgment/order dated 5-5-2003 passed by Lahore High Court, Lahore in Civil Revision No.730 of 2003).

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

----S. 13---Constitution of Pakistan (1973), Art.185(3)---Pre-emption suit---Talb-i-Muwathibat and Talb-I-Ishhad---Proof---Suit was dismissed by Trial Court but Appellate Court decreed the suit in favour of pre­emptors---Judgment and decree passed by Appellate Court was upheld by High Court in exercise of revisional jurisdiction---Plea raised by vendee was that postman did not mention dates on the envelopes which he intended to deliver to vendee containing notice of Talb-i-Ishhad, despite the fact that he had approached repeatedly to vendee to deliver the notice---Vendee further raised the plea that on the basis of statement of postman, High Court might have not drawn the conclusion that as the notice of Talb-i-Ishhad was served, therefore, it would be presumed that three days preceding to issuance of notice of Talb-i-Muwathibat was made by pre-emptors---Validity---Leave to appeal was granted by Supreme Court to consider; whether both Talbs had been duly proved in accordance with law or not.

Qaisar Abbas Qaisar, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 25th August, 2004.

2006 S C M R 882

[Supreme Court of Pakistan]

Present: Falak Sher and Karamat Nazir Bhandari, JJ

Mst. JHANDO and 6 others---Petitioners

Versus

MUHAMMAD SHARIF and 9 others---Respondents

Civil Petition No.3746-L of 2002, decided on 7th March, 2003.

(On appeal from the judgment dated 9-10-2002 of the Lahore High Court, Bahawalpur Bench Bahawalpur passed in Civil Revision No.87-D of 1995).

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

----Ss. 20(b) & 30-A---West Pakistan Muslim Personal (Shariat) Application Act (V of 1962), S.3---Constitution of Pakistan (1973), Art.185(3)---Succession to proprietary rights---Widow inherited tenancy rights in year 1930, but acquired proprietary rights in February, 1963, when conveyance deed was executed in her favour---Widow on 14-5-1964 through mutation gifted such land to plaintiff (non-heir)---Revenue Authorities reviewed gift mutation on application of legal heirs of deceased tenant and widow---Plaintiff claiming to be owner of such land filed suit, which was decreed by Trial Court, but was dismissed by Appellate Court and in revision by High Court---Validity---Widow in year 1930 had succeeded deceased tenant as limited owner---Such limited estate had terminated on 31-12-1962 with enforcement of West Pakistan Muslim Personal (Shariat) Application Act, 1962 re-opening succession of deceased male tenant to be decided in accordance therewith---Execution of conveyance deed in favour of widow in February, 1963 would not constitute her as full owner---Supreme Court dismissed petition and refused leave to appeal.

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

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

----S. 20(b)---Provision of S.20(b) incorporates principles of Customary law.

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

Malik Noor Muhammad Awan, Advocate Supreme Court with Walayat Umar Chaudhry, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 7th March, 2003.

2006 S C M R 884

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

FALAK SHER and others---Petitioners

Versus

Mst. BANNO MAI and others---Respondents

Civil Petition No.2032-L of 1999, decided on 20th January, 2003.

(On appeal from the judgment/order dated 21-6-1999 of the Lahore High Court, Lahore, passed in Civil Revision No.1218 of 1992).

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

----S. 2-A---Retrospective in operation.

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

(b) 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)]---Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), S.3---Succession---Daughter contracted marriage before Independence of Sub-Continent after inheriting property of her father as limited owner---Daughter through inheritance mutation attested on 29-9-1970 got 1/2 share in property---Plea of other legal heirs was that succession had opened at time of such marriage, thus, daughter under customary law was not entitled to any share---Validity---Retrospective effect had, been given to S.2-A of West Pakistan Muslim Personal (Shariat) Application Act, 1962---Deceased would be considered as absolute owner of property being last male heir, thus, his legacy would devolve upon his legal heirs in accordance with Muslim Personal Law of Inheritance---Daughter would be entitled to 1/2 share of property left by her deceased father, from which she could not be deprived of---Authenticity and validity of such mutation was above board being in consonance with Islamic Law of Inheritance.

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

Tariq Masood, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 20th January, 2003.

2006 S C M R 890

[Supreme Court of Pakistan]

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

GHULAM MUSTAFA---Petitioner

Versus

MEMBER (JUDICIAL-V), BOARD OF REVENUE PUNJAB and others---Respondents

Civil Petition No.744-L of 2003, decided on 31st March, 2003.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 19-3-2003 passed in W.P. No.2113 of 2003).

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

----Ss. 10 & 30---Constitution of Pakistan (1973), Art.185(3)---Exchange of land allotted to respondent at other place with that of disputed land regarding which petitioner's case for grant of proprietary rights was pending before Revenue Authorities---Validity---Contention of petitioner was that after conferment of proprietary rights and execution of sale-deed by Revenue Authorities in favour of respondent in respect of land allotted to him at other place, such land become privately owned land, which could not be allowed by Revenue Authorities to be exchanged with disputed land as same could not be treated as available land till final decision in judicial remedies available to petitioner respecting his claim that he as allottee/Patadar of disputed land under Temporary Cultivation Scheme was entitled to conferment of proprietary rights--Supreme Court granted leave to appeal to consider, inter alia, such contentions.

Malik Muhammad Qayyum, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 31st March, 2003.

2006 S C M R 893

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

FAZAL HAKEEM---Petitioner

Versus

REHMATULLAH and others---Respondents

Civil Appeal No.686 of 2000, decided on 3rd February, 2005.

(On appeal from the judgment dated 19th November, 1998 passed by the Peshawar High Court, Peshawar in Civil Revision No.630 of 1997).

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

----S. 13---Right of pre-emption, exercise of---Talb-i-Muwathibat and Talb-i-Ishhad, delay in making of---Vendees defended the suit on the ground that at the time of attestation of mutation in their favour, pre-emptor was present before Revenue Officer---Trial Court dismissed the suit but Appellate Court decreed the same in favour of pre-emptor---High Court in exercise of revisional jurisdiction restored the judgment and decree passed by Trial Court---Validity---Pre-emptor was present before Revenue Officer at the time of attestation of mutation in favour of vendees, in connection with another property purchased by him but he failed to make Talb-i-Muwathibat, then and there in respect of suit property---Even making of Talb-i-Ishhad was not proved in accordance with law---No misreading or non-reading of material evidence on record could be pointed out by pre-emptor---Judgment and decree passed by High Court did not suffer from any legal infirmity so as to warrant interference by Supreme Court---Appeal was dismissed.

Syed Asif Shah, Advocate Supreme Court and Syed Safdar Hussain, Advocate-on-Record (absent) for Appellants.

Saeed Beg, Advocate Supreme Court and Muhammad Ismail Fehmi, Advocate-on-Record (absent) for Respondents.

Date of hearing: 3rd February, 2005.

2006 S C M R 895

[Supreme Court of Pakistan]

Present: Javed Iqbal and Karamat Nazir Bhandari, JJ

HAMEED AHMAD---Petitioner

Versus

GULAB KHAN---Respondent

Civil Petition No.3225-L of 2002, decided on 3rd June, 2003.

(On appeal from the judgment dated 29-7-2002 of the Lahore High Court, Lahore passed in R.F.A. No.584 of 2002).

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

---O. XXXVII, R.2---Qanun-e-Shahadat (10 of 1984), Arts.17(2) & 79---Constitution of Pakistan (1973), Art.185(3)---Suit upon promissory note---Non-production of attesting witnesses of documents showing repayment of loan amount to plaintiff---Trial Court decreed suit for defendant's failure to establish his defence, which decree was upheld by Appellate Court---Validity---Non-production of marginal witnesses was fatal---Approach of Courts below was not defective---Supreme Court dismissed petition and refused leave to appeal.

Muhammad Ibrahim v. Mst. Irshad Begum and others PLD 2002 SC 720 and Mrs. Rasheeda Begum and others v. Muhammad Yousaf and others 2002 SCMR 1089 ref.

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

---Art. 185---Appeal to Supreme Court---Concurrent findings of fact of Courts below---Validity---Supreme Court would not be required to review evidence, particularly when two Courts below had not violated any principle of law in arriving at such conclusions.

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

---O. XLI, R.11---Dismissal of first appeal in limine---Scope---Practice of not dismissing appeal in limine might be a practice only evolved by High Court, but in law appeal could be dismissed in limine.

Muhammad Ibrahim v. Mst. Irshad Begum and others PLD 2002 SC 720 fol.

Rafiq Javed Butt, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

S.M. Tayyab, Senior Advocate Supreme Court and Ozair Chughtai, Advocate-on-Record for Respondent.

Date of hearing: 3rd June, 2003.

2006 S C M R 897

[Supreme Court of Pakistan]

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

GHULAM RASOOL---Petitioner

Versus

JAN MUHAMMAD and others---Respondents

Civil Petition No.1666-L of 2000, decided on 4th April, 2003.

(On appeal from the judgment of the Lahore High Court, Multan Bench, Multan, dated 17-4-2000, passed in R.S.A. No.29 of 1989).

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

----S. 34(2)---Words "judgments and decrees" as used in S.34(2) of Punjab Pre-emption Act, 1991---Scope---Suit dismissed under Punjab Pre-emption Act, 1913 (having been declared to be repugnant to Injunction of Islam) not saved for further remedies.

Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360; Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287 and Muhammad Sharif v. Muhammad Sharif 1992 SCMR 1129 ref.

Rozi Khan and others v. Syed Karim Shah and others 1992 SCMR 445 fol.

Waqar Azim, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 4th April, 2003.

2006 S C M R 899

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

ALI MUHAMMAD and others---Petitioners

Versus

ABDUL HAMEED and others---Respondents

C.P. No.254-L of 2000, decided on 14th April, 2003.

(On appeal from the judgment dated 12-10-1999 passed by the Lahore High Court, Lahore in R.F.A. No.79 of 1996).

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

----Ss. 6 & 13---Constitution of Pakistan (1973), Art.185(3)---Pre­emption suit---Failure of pre-emptor to prove superior right of pre-emption and performance of Talbs in terms of S.13 of Punjab Pre-emption Act, 1991---Trial Court dismissed suit on such grounds, which findings were upheld by High Court---Validity---No illegality was found in concurrent findings of two competent Courts---Conclusions reached by two Courts were not based on misreading or non-reading of evidence on record---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.

Nemo for Respondents.

Date of hearing: 14th April, 2003.

2006 S C M R 901

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and M. Javed Buttar, JJ

Messrs CHANAR SUGAR MILLS LTD. and others---Petitioners

Versus

COLLECTOR (SALES TAX) and others---Respondents

Civil Appeals Nos.142 to 153 of 2002 along with C.M.As. Nos.653 to 663 of 2004, Civil Appeals Nos.674, 675, 722 to 725, 824, 1205, 1704 to 1706 and 1320-L of '2002, decided on 18th January, 2005.

(On appeal against the judgments dated 21-11-2001 passed by the Lahore High Court in Appeals Nos.171, 173 and 183-185, 196 and 198 of 2001, dated 27-11-2001 in Appeal No.362 of 2001 dated 14-1-2002 in Appeals Nos.39, 40 of 2001 and 78 of 2002, dated 20-3-2002 in Appeals Nos.46 and 47 of 2002, dated 1-4-2002 in Appeal No.77 of 2002, dated 8-4-2002 in Appeals Nos.48, 49 of 2002 dated 1-8-2002 in Appeals Nos.379, 380 of 2002, dated 19-3-2002 in Appeal No.480 of 2002 and dated 24-3-2003 in Appeal No.2 of 2003).

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

---S. 46---S.R.O. vires of---Jurisdiction of Appellate Tribunal---Scope---Appellate Tribunal in its limited jurisdiction could not declare any S.R.O. ultra vires of the Constitution---Principles elaborated.

F.B. Ali v. State PLD 1975 SC 506 rel.

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

---Ss. 46 & 47---Constitution of Pakistan (1973), Art.185(3)---Appeal to High Court---Non-decision of case on merits by Tribunal---High Court non-suited appellant on merits---Validity---Party could not be non-suited on a point on which lower forum had not given its decision---Findings of Tribunal on merits was necessary, so that High Court might take its benefit while deciding appeal---High Court instead of non-suiting appellant on merits should have remanded case to Tribunal for sake of justice---Supreme Court set aside impugned judgment and remanded case to Tribunal for its decision on merits.

(c) Administration of justice---

----Party cannot be non-suited on a point on which lower forum has not given its decision.

Imitaz Rashid Siddiqui, Advocate Supreme Court and Sh. Salahuddin, Advocate-on-Record, for Appellant (in C.As. Nos.142 and 146 of 2002).

Shahid Karim, Advocate Supreme Court, Mehmood-ul-Islam, Advocate-on-Record and Ch. Muhammad Akram, Advocate-on-Record for Appellant (in C.As. Nos.143, 148, 149, 153, 722 to 724, 823 to 824, 1205, 1704 to 1706 of 2002, 1184 of 2003 and C.P. No.1320-L of 2002).

Ali Sibtain Fazli, Advocate Supreme Court for Appellant (in C.A. No.144 of 2002).

Syed Mansoor Ali Shah, Advocate Supreme Court for Appellant (in C.As. Nos. 150 to 152 and 725 of 2002).

M. Rafiq Rjwana, Advocate Supreme Court for Appellant (in C.A. No.674 of 2002).

Sh. Salahuddin, Advocate-on-Record for Appellant (in C. A. No.675 of 2002).

Respondents Nos.1, 2 and 4: Ex parte (in C.A. 142 of 2002).

A. Karim Malik, Senior Advocate Supreme Court for Respondent No.3 (in C.As. Nos.142, 143, (R.No.1), 144 to 152, 722, 1205, 1704 of 2002).

Respondent No.2: Ex parte (in C.A. 143 of 2002).

Dr. Sohail Akhtar, Advocate Supreme Court for Respondent (in C.As. Nos.144, 153, 1205 of 2002 and 1183 of 2003).

Ch. Saghir Ahmed, Advocate Supreme Court for Respondent (in C.As. Nos.674, 675, 723, 724, 823, 824 and 1706 of 2002).

Nemo for Respondents (in C.As. No.674, 675, 723, 724, 823, 824 and 1706 of 2002).

Date of hearing: 18th January, 2005.

2006 S C M R 905

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

RASHEEDA BEGUM through L.Rs. and another---Petitioners

Versus

MUHAMMAD ANWAR GHORI---Respondent

Civil Petition No.1807-L of 2002, decided on 29th April, 2003.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 24-10-2001 passed in C.R. No.537 of 1995).

Specific Relief Act (I of 1877)---

----S. 12---Contract Act (IX of 1872), S.11---Qanun-e-Shahadat (10 of 1984), Art.122---Constitution of Pakistan (1973), Art.185(3)---Suit for specific performance of. agreement to sell---Age---Determination---Plea of defendant was that such agreement was void as he was minor at the time of its execution---Radiologist after examining defendant certified that he was more than 24 years of age on date of examination---Year of defendant's birth as shown by his father in Form submitted for obtaining National Identity Card tallied with report of Radiologist---Suit was concurrently decreed by Courts below---High Court had rightly not allowed defendant to produce additional documents as material already placed on record was sufficient for pronouncement of judgment---Supreme Court dismissed petition and refused leave to appeal.

Hasnat Ahmad Khan, Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record for Petitioners.

Noor Muhammad Chandio, Advocate Supreme Court for Respondent.

Date of hearing: 29th April, 2003.

2006 S C M R 907

[Supreme Court of Pakistan]

Present: Javed Iqbal, Khalil-ur-Rahman Ramday and Karamat Nazir Bhandari, JJ

EXECUTIVE ENGINEER, IRRIGATION DEPARTMENT, LAYYAH DIVISION and another---Appellants

Versus

ABDUL MAJEED and others---Respondents

Civil Appeal No.964 of 1998, decided on 15th November, 2002.

(On appeal, from the order, dated 21-5-1997 of the Lahore High Court, Multan Bench passed in I.C.A. No.126 of 1993).

Constitution of Pakistan (1973)---

----Arts. 199 & 185(3)---Constitutional petition before High Court---Disputed question of title---Petitioners claimed to be owner of disputed land while respondent-department alleged them to be in illegal possession thereof and thus, it prayed for their dispossession---Respondent ­department claimed to have become owner thereof through acquisition---High Court took up Constitutional petition on same day and decided on following day after recording consenting statement of a departmental representative---Intra-Court Appeal was dismissed in limine, but on the very next day, Division Bench of High Court through an order passed on misc. application directed police to ensure immediate handing over possession to petitioner---Validity---High Court had decided such issue in a summary manner without summoning respondents and giving opportunity to defend themselves or to be present or heard while deciding same---Division Bench of High Court was in gross error in not appreciating that department had been condemned' unheard; and that question of title could not be determined in such a summary manner---Giving such direction to police was open to serious exception---Such action was more than extraordinary steps taken by High Court and no reason existed on record to justify same---Supreme Court accepted appeal and set aside both impugned orders.

M. Zairian Bhatti, Advocate Supreme Court for Appellants.

Respondents: Ex parte.

Date of hearing: 15th November, 2002.

2006 S C M R 910

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Falak Sher, JJ

MUHAMMAD HABIB and another---Petitioners

Versus

BASHIR AHMED and others---Respondents

Civil Petition No.195-L of 2001, decided on 30th May, 2003.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 6-11-2000 passed in W.P. No.6724 of 1989).

Specific Relief Act (I of 1877)---

----Ss.12 & 35---Civil Procedure Code (V of 1908), S.48 & O.XXI, Rr.10. 23-A---Limitation Act (IX of 1908), S.3 & Art.181---Decree in suit for specific performance of agreement to sell specified time for deposit of balance sale price, failing which suit would stand dismissed---Such amount was not deposited---Execution petition was dismissed on 25-4-1975 for non-prosecution---Second execution petition was filed on 12-2-1985 with application for condonation of delay in deposit of amount under decree---Executing Court accepted such application and execution petition, which judgment was upheld by Appellate Court, but was set aside by High Court in Constitutional petition---Plea of plaintiff was that no time could be fixed under decree for deposit of such amount, which could be paid in Executing Court before passing order for registration of sale-deed---Validity---Second execution petition being barred by time was liable to be dismissed under S.3 of Limitation Act, 1908, even in absence of plea of limitation in defence---Executing Court had, thus, no jurisdiction to entertain application for condonation of delay---Such plea of plaintiff, if accepted, then execution petition must be maintainable having been filed within limitation---Since no execution petition could be entertained and deemed to be legally pending, such a right could not have been exercised, if any, by plaintiff---Supreme Court dismissed petition and refused leave to appeal.

Ch. Khurshid Ahmed, Advocate Supreme Court with C.M. Latif, Advocate-on-Record for Petitioners.

Syed Kaleem Khursheed, Advocate Supreme Court with Faiz-ur-Rehman, Advocate-on-Record for Respondents.

Date of hearing: 30th May, 2003.

2006 S C M R 913

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Actg. C. J., Faqir Muhammad Khokhar and M. Javed Buttar, JJ

Sh. SHAJAR HUSSAIN---Petitioner

Versus

Haji ABDUL MAJEED and others---Respondents

Civil Petition No.848-L of 2000, decided on 21st December, 2004.

(On appeal from judgment dated 1-3-2000 of the Lahore High Court, Multan Bench passed in R.S.A. No.35 of 1996).

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

----O. I, R.3 & O.XXIII, Rr.1(2), 2---Constitution of Pakistan (1973), Art.185(3)---Suit without impleading necessary party---Sale of land by company as its original owner through its Director---Company not impleaded as party in suit---Dismissal of suit by all three Courts below---Prayer of plaintiff to allow him either to amend plaint or withdraw suit with liberty to file fresh suit on same cause of action after removing such inherent defect---Defendant objected to grant of such permission on the ground that suit had been found by all Courts to be barred by time---Validity---Decree passed in absence of original owner i.e. company, would cause injustice to same---Decree/order would not be executable against a person, who was not a party to proceedings---Supreme Court accepted appeal, set aside impugned judgments of Courts below and permitted plaintiff to withdraw suit and file fresh suit on same cause of action in accordance with law.

(b) Execution---

----Order against a person not party to proceedings---Not executable against such person.

Ihsan-ul-Haq Ch. Advocate Supreme Court and Zafar Iqbal Ch. Advocate Supreme Court for Petitioner.

Zaka-ur-Rehman, Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-Record for Respondents.

Date of hearing: 21st December, 2004.

2006 S C M R 915

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Karamat Nazir Bhandari, JJ

MUHAMMAD YUNUS---Petitioner

Versus

FAYYAZ MASOOD MALIK and others---Respondents

C.P.L.A. No.2738-L/2001, decided on 8th May, 2003.

(On appeal from the order, dated 13-7-2001 passed by the Lahore High Court, Lahore in Civil Revision No.252 of 1992).

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

----Ss. 2(a) & 5---Pre-emption suit---Sale alleged not pre-emptible for suit-land falling within limits of Town Committee---Validity---Nothing had been brought on record to show that suit-land was not urban in nature or same did not fall with such limits---Sale was, held, not pre­ emptible.

Mian Ata ur Rahman, Advocate-on-Record for Petitioners.

Rao Munawar Khan, Advocate Supreme Court with Ozair Chughtai, Advocate-on-Record for Respondent No.1.

Date of hearing: 8th May, 2003.

2006 S C M R 916

[Supreme Court of Pakistan]

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

MUHAMMAD HANIF---Petitioner

Versus

PROVINCE OF PUNJAB and others---Respondents

Civil Petition No.1915-L of 2000, decided on 7th May, 2003.

(On appeal from the judgment, dated 13-7-2000 of the Lahore High Court, Bahawalpur Bench, passed in Civil Revision No.345 of 2000).

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr.1 & 2---Temporary injunction---Lease rights in suit-land obtained through auction were not confirmed in favour of plaintiff by competent authority---Provincial Board of Revenue declared auction proceedings to be fraudulent and bogus---Held: Plaintiff in such situation could not be said to have established existence of prima facie case in his favour.

Mahmood A. Qureshi, Advocate-on-Record for the Petitioner.

Nemo for Respondents.

Date of hearing: 7th May, 2003.

2006 S C M R 917

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

STATE LIFE INSURANCE CORPORATION OF PAKISTAN---Petitioner

Versus

PAKISTAN STOCK EXCHANGE LIMITED and others---Respondents

Civil Petitions Nos.3510-L and 3511-L of 2001, decided on 16th May, 2003.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 11-9-2001 passed in C.R. Nos.1102 and 1103 of 1992).

Specific Relief Act (I of 1877)-

----S.12---Contract Act (IX of 1872), S.25---Suit for specific performance of agreement to sell---Vendor (allottee) associated with himself plaintiff and another person in equal share in matter of getting transfer of property from Settlement Department---Vendor was paid by other person his share of amount payable to Settlement Department, while plaintiff spent money on reconstruction and repairs of building-Such facts were recorded in agreement to sell---Witnesses produced by plaintiff also made reference to such facts---Sole witness produced by vendor remained silent as to such aspect of matter---Held: Such agreement vis-a-vis plaintiff was not without consideration.

M. Bilal Khan, Advocate Supreme Court and Muhammad Anwar Bhaur, Advocate Supreme Court for Petitioner (in both petitions).

Mirza Nisar Ahmad Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Respondent No.3 (in C.P. No.3510-L/1001).

Iqbal Hussain Rokari, Advocate Supreme Court and Ch. Mehdi Khan, Advocate-on-Record for Respondents Nos.1-4 (in C.P. No.3511-I/2001).

Date of hearing: 16th May, 2003.

2006 S C M R 920

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

ALLAH BAKHSH KHAN and others---Petitioners

Versus

AHMAD KHAN through L.Rs.---Respondent

Civil Review Petition No.151-L of 1999 in Civil Petition No.267-L of 1999, decided on 15th July, 2004.

(On review from the order dated 6-8-1999 passed by this Court in Civil Petition No.267-L of 1999).

Constitution of Pakistan (1973)---

----Art. 185(3)---Supreme Court Rules, 1980, O.IV, Rr.6, 15 & O.XXVI, R.6---Petition for leave to appeal---Disposal of petition on basis of compromise entered into by previous counsel of respondent---Review application by respondent through other counsel on the ground that his previous counsel was not authorized to enter into compromise---Maintainability---Supreme Court refused to give permission to Other counsel to appear for respondent as allegation levelled against previous counsel at his back were such, which might have far-reaching effects on his career---Supreme Court issued show-cause notice to Advocate-on-Record of respondent for violating O.IV, Rr.6, 15 & O.XXVI, R.6 of Supreme Court Rules, 1980 and for not producing previous counsel who appeared at petition stage---Review application was dismissed in circumstances.

Zahid Hussain Khan, Advocate Supreme Court and Mian Muhammad Nawaz, Advocate Supreme Court for Petitioners.

Muhammad Ozair Chughtai, Advocate-on-Record for Respondent.

Date of hearing: 15th July, 2004.

2006 S C M R 922

[Supreme Court of Pakistan]

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

SECRETARY, HOUSING AND PHYSICAL PLANNING DEPARTMENT, LAHORE and others---Petitioners

Versus

MUHAMMAD SADIQ and others-respondents

Civil Petitions Nos. 967-L/2002 and 3543-L of 2001, decided on 18th April, 2003.

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

----Art. 185(3)---Supreme Court Rules, 1980, O.XIII, R.1-Petition for leave to appeal barred by 143 days---Condonation of delay---Plea of Secretary, Housing Department for delay was that on account of implementation of devolution of power plan, office of Commissioner at Divisional level was abolished---Validity---Such ground was not sufficient for extension of time as Commissioner had said nothing in that behalf---Supreme Court dismissed petition as barred by time and refused leave to appeal.

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

----Art.185(3)---Supreme Court Rules, 1980, O.XIII, R.1---Petition for leave to appeal barred by 8 days---Condonation of delay---Plea of Secretary, Housing Department was that due to unavoidable circumstances and administrative reasons, file of case could not be handed over to its counsel---Validity---Such ground was not a reasonable ground for extension of time---Supreme Court dismissed petition as barred by time and refused leave to appeal.

Muhammad Anwar Ghuman, Advocate Supreme Court for Petitioners (in C.P.No.967-L of 2002).

Ch. Ghulam Qadir, Advocate Supreme Court and Faiz-ur-Rehman Advocate-on-Record for Respondents Nos. 7, 9, 10 and 100 (in C.P. No.967-L of 2002).

Muhammad Rashid Ahmed, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioners (in C.P. No.3543-L of 2001).

Ch. Ghulam Qadir, Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record for Respondents Nos.15, 31, 33 and 115 (in C.P. No.3543-L of 2001).

Gosi Muhammad Din, Ch., Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-Record for Respondent No.175 (in G.P. No.3543-L of 2001).

Date of hearing: 18th April, 2003.

2006 S C M R 924

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

MUHAMMAD USMAN (deceased) through Fazal Ahmad and others---Petitioners

Versus

MANZOOR AHMAD (deceased) through Muhammad Afzal and others----Respondents

Civil Petition for Leave to Appeal No.253/L of 1999, decided on 20th March, 2003.

(On appeal from the order, dated 23-11-1998 of the Lahore High Court, Bahawalpur Bench, Bahawalpur passed in Writ Petition No.296 of 1979/BWP).

West Pakistan Consolidation of Holdings Ordinance (VI of 1969)---

----Ss. 3, 4, 10 & 13---Limitation Act (IX of 1908), S.3---Constitution of Pakistan (1973), Art.185(3)---Consolidation proceedings---Limitation---Dismissal of Constitutional petition on the ground that appeal filed against initial consolidation scheme before revenue forum was time ­barred---Validity---Plea of limitation had neither been dilated upon nor agitated by other, side before any revenue forum nor substantiated from record---High Court had set aside findings of revenue forums on merits without providing opportunity to petitioner to substantiate his claim---Supreme Court accepted appeal and set aside impugned judgment, resultantly Constitutional petition would be deemed to be pending before High Court for its decision on merits.

Aejaz Ahmad Ansari, Advocate Supreme Court with, Ch. Muhammad Aslam, Advocate-on-Record for Petitioners.

Wahid Bakhsh and Muhammad Akhtar, Respondents (present in person).

Date of hearing: 20th March, 2003.

2006 S C M R 927

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Rana Bhagwandas and Faqir Muhammad Khokhar, JJ

GOVERNMENT OF THE PUNJAB---Petitioner

Versus

Malik MUHAMMAD FEROZE and others---Respondents

Civil Review Petition No.254 of 2002 in C.P. No.418 of 2002, decided on 29th September, 2003.

(On appeal from the judgment, dated 23-7-2002 of the Supreme Court passed in C.P. No.418 of 2002).

(a) Supreme Court Rules, 1980---

----O. XXVI, R.2---Review petition---Delay of 60 days---Condonation of---Contention of petitioner was that judgment under review was passed at leave stage in absence of both parties and after coming to know about same, he filed review petition---Supreme Court condoned such delay in circumstances.

(b) Civil service---

----Annual confidential report (ACR)---Adverse remarks---Expunction of---Issuance of charge-sheet to civil servant for irregularities mentioned in adverse ACR---Civil servant contended to have been finally exonerated of such charges including those which were not subject-matter of charge-sheet---Remedy of civil servant was before departmental authority to seek expunction of only those adverse remarks in ACR, about which he was charge sheeted and exonerated, but not others.

M. Zaman Bhatti, Advocate Supreme Court and Rao Muhammad Yusuf Khan, Advocate-on-Record with Mohsin Abbas, S.O. for Petitioner.

Respondents in person.

Date of hearing: 29th September, 2003.

2006 S C M R 929

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Falak Sher, JJ

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman and another---Petitioners

Versus

BILAL AHMED and another---Respondents

Civil Petition No.1287-L of 2001, decided on 20th December, 2004.

(On appeal from the judgment, dated 22-2-2001 of the Lahore High Court, Lahore passed in R.F.A. No.71 of 1990).

Civil Procedure Code (V of 1908)---

----O. XIV, Rr.1 & 2---Constitution of Pakistan (1973), Art.185---Issue of fact, non-framing of---Such objection if not raised at proper stage, could not be raised for the first time before Supreme Court---Principles illustrated.

Muhammad Ilyas Khan, Advocate Supreme Court with M.Z. Khalil, Advocate-on-Record for Petitioners.

Raja Muhammad Anwar, Senior Advocate Supreme Court for Respondents.

Date of hearing: 20th December, 2004.

2006 S C M R 930

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Falak Sher, JJ

FATEH KHAN (deceased) through L.Rs. and another---Petitioners

Versus

SURRIYA BEGUM---Respondent

Civil Petition No.2280-L of 2001, decided on 24th November, 2003.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 14-5-2001 passed in R.S.A, No.269 of 1982).

Specific Relief Act (I of 1877)---

----Ss. 39 & 42---Contract Act (IX of 1872), Ss.4, 18, 25 & 214---Registration Act (XVI of 1908), S.60---General power of attorney by an illiterate Pardanashin lady for Court case allegedly containing power in favour of attorney to sell her property---Sale of property by attorney in favour of his wife---Validity---Principal was an illiterate Pardanashin lady, thus, duty of attorney was to have proved that she was made to understand that she was also giving him power to sell her property---Endorsement of Sub-Registrar on document showing that same had been read over to such lady, was of routine nature and it could not be construed therefrom that she had been specifically apprised that she was also giving power to attorney to sell her property---Mere thumb-marking a document would not tantamount to a valid execution, until and unless such lady was duly appraised and made to understand true nature and contents thereof---Attorney before making sale in favour of his wife had not brought such fact to notice of such lady---Payment of any consideration to such lady had not been proved---Suit filed by such lady taking exception to such power of attorney and sale-deed was decreed in circumstances.

Ch. Muhammad Aslam Sandhu, Advocate Supreme Court for Petitioners.

Nemo for Respondent.

Date of hearing: 24th November, 2003.

2006 S C M R 933

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Abdul Hameed Dogar and Sardar Muhammad Raza Khan, JJ

MASOOD AHMED alias MUHAMMAD MASOOD and another---Petitioners

Versus

THE STATE---Respondent

Criminal Petition No.282 of 2003, decided on 9th October, 2003.

(On appeal from the order, dated 16-7-2003, passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi, in Criminal Miscellaneous No.734/B of 2003).

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S.337-F(vi)134---Constitution of Pakistan (1973), Art.185(3)---Pre-arrest bail---Medico-legal report of the victim had, prima facie, supported the accusation levelled against the accused in the F.I.R.---Element of mala fides which was a condition precedent for grant of bail before arrest was missing---Contention with regard to cross version of the case was too intricate to be considered at this stage---Pre-arrest bail was declined to accused in circumstances and the petition was dismissed accordingly.

Malik Muhammad Nawaz Khan, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioners.

Muhammad Anwar Sipra, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate-on-Record for the Complainant.

Muhammad Zaman Bhatti, Advocate Supreme Court for the State.

Date of hearing: 9th October, 2003.

2006 S C M R 934

[Supreme Court of Pakistan]

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

HANIFAN BEGUM and others---Petitioners

Versus

MUHAMMAD AMEER---Respondent

Civil Petition No.3210-L of 2000, decided on 31st March, 2003.

(On appeal from the judgment, dated 2-10-2000 of the Lahore High Court passed in C.R. No.1135 of 1995).

Specific Relief Act (I of 1877)---

----Ss. 8, 9 & 54---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Regular suit for possession after dismissal of summary suit filed under S.9 of Specific Relief Act, 1877 on ground of limitation---Defendant took over forcible possession of suit-land in violation of order of temporary injunction passed in a suit filed by plaintiff for permanent injunction---Defendant was convicted for such violation---Plaintiff's suit under S.9, Specific Relief Act, 1877 was dismissed on ground of limitation, over which he filed regular suit for recovery of possession with full court-fee, which was concurrently decreed by Courts below---Contention of defendant was that such regular suit should not have been decreed without establishing by plaintiff his title to suit-land---Validity---Plaintiff had become entitled to restoration of possession of suit-land after defendant had been found to have taken over forcible possession in violation of order of Civil Court and was punished for such act---Courts below in fresh suit had done that, which original Court, which passed order of conviction against defendant, - should have done---Justice having been done in such case, Supreme Court dismissed petition and refused leave to appeal.

Ch. Ali Muhammad, Advocate Supreme Court for Petitioners.

Sheikh Abdul Sattar Zahid, Advocate Supreme Court for Respondent.

Date of hearing: 31st March, 2003.

2006 S C M R 936

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza, Muhammad Nawaz Abbasi and Falak Sher, JJ

Mian ASGHAR ALI---Petitioner

Versus

PROVINCE OF PUNJAB through District Collector and others---Respondents

Civil Petitions Nos.2466 to 2468 of 2004, decided on 16th December, 2004.

(On appeal from the judgment of the Lahore High Court, Lahore dated 5-7-2004 passed in Writ Petitions Nos.6547, 6399 and 6670 of 2000).

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

----S. 30(2)---West Pakistan Board of Revenue Act (XI of 1957), S.8(2)---Constitution of Pakistan (1973), Arts.185(3) & 199---Constitutional petition---Securing land of Municipal Committee at nominal price by exertion of political influence---Recall of sanction order by Board of Revenue---Purchaser's application to the Governor and its onward reference to Board of Revenue---Review of recall order by Board of Revenue on such application beyond statutory period of 90 days without notice to Municipal Committee and contemporary contender---Validity---Respondent had not moved such application before proper forum---Application referred by the Governor had been illegally treated as review petition by Board of Revenue and without application and affidavit of purchaser to condone delay---Board of Revenue had accepted review petition at belated stage without giving reason for condoning delay---Review petition being barred by time was not maintainable and order passed thereon was not sustainable in eye of law---Interference with impugned order would tantamount to encouraging perpetuation of patent illegal devices to protect illegitimate gains reaped by political vultures for unjust enrichment at the cost of public exchequer, which had eroded the very moral fabric of society--Supreme Court dismissed petition and refused leave to appeal.

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

M. Iqbal Khan, advocate Supreme Court and M.A. Zaidi Advocate-on-Record for Respondents.

Date of hearing: 16th December, 2004.

2006 S C M R 940

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Falak Sher, JJ

REHMAT ALI deceased through L.Rs.---Petitioners

Versus

Mst. KARAM BIBI and others----Respondents

Civil Petition No.658-L of 2003, decided on 24th November, 2003.

(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench, Bahawalpur, dated 3-12-2002 passed in C.R. No.567-D of 1989).

Islamic Law---

----Gift---Marzul Maut---Proof---Disease of donor should be of such nature, which would otherwise induce belief in one's hind that death would be caused thereby.

Mirza Hafeez-ur-Rehman, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 24th November, 2003.

2006 S C M R 942

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Mian Muhammad Ajmal and Falak Sher, JJ

NASEER AHMED---Petitioner

Versus

THE STATE---Respondent

Criminal Review Petition No.51 of 2002 decided on 15th September, 2003.

(On review from the judgment of this Court, dated 12-9-2002 passed in Jail Petition No.129 of 2001).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art.188---Supreme Court Rules, 1980, O.XXVI, R.1---Review---Counsel for the accused after dismissal of the petition through a well-reasoned and well-founded judgment appeared to have realized his omissions and commissions and thus had came up with absurd ground that he was not fully heard---Contentions of the defence counsel were totally belied by the judgment under review---Although the defence counsel had abandoned the case on merits and confined his arguments on quantum of sentence only, yet Supreme Court for doing complete justice had considered the merits of the case on scanning the record which was evident from the impugned, judgment---Contention raised on behalf of accused on the question of quantum of sentence was also duly considered and repelled on having been found meritless---Counsel for the accused had attempted to reargue and reopen the case on merits as well as on quantum of sentence by referring to ocular and medical evidence, but such recourse was not permissible in review jurisdiction, as under rule 1 of Order XXVI of the Supreme Court Rules, 1980, the ground for review in criminal proceedings was an error apparent on the face of the record which could not be pointed out in the judgment under review---Review petition was dismissed accordingly.

Muhammad Zaman Bhatti, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 15th September, 2003.

2006 S C M R 946

[Supreme Court of Pakistan]

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

MUHAMMAD AKRAM---Petitioner

Versus

Haji IJAZ AHMED and others---Respondents

Civil Petition No.745-L of 2003, decided on 17th April, 2003.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 7-3-2003 passed in W.P. No. 8104 of 1997).

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

----S.13---Denial of relationship of landlord and tenant between parties on basis of agreement to sell in favour of respondent---Prayer for reference of question of title to Civil Court---Validity---Landlord in ejectment petition was required to prove his entitlement to receive rent by proving induction of respondent in premises as tenant---Neither there was any dispute nor same could be raised qua ownership of landlord as respondent's own case was that landlord had agreed to sell premises to him---Question of title, thus, not disputed, which could be referred to Civil Court for resolution.

Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064 ref.

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

----S.13---Constitution of Pakistan (1973), Art.185(3)---Denial of relationship of landlord and tenant between parties---Rent Controller dismissed ejectment petition, which order was set aside by Appellate Court and upheld by High Court in Constitutional petition---Validity---Respondent had not denied landlord's right to receive rent---Landlord was obliged to prove to satisfaction of Court only that respondent was occupying premises as tenant---Landlord had proved rent note executed by respondent by examining petition writer and an advocate, who had drafted same on being consulted by landlord---Such Advocate had no personal interest in subject-matter of rent deed i.e. rented premises---Petition writer had deposed that respondent was known to him as he used to get documents scribed by him---Appellate Court after reappraising evidence had found execution of rent deed as proved establishing relationship of landlord and tenant between parties---Findings of Rent Controller having been found wrong had rightly been set aside---Impugned judgments of two immediate Courts below did not suffer from any legal infirmity---Supreme Court dismissed petition and refused leave to appeal.

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

----S.15(1)---Powers of first Appellate Court---Scope---Findings of Rent Controller are subject to correction by First Appellate Court in appeal being a final Court on facts and law---Principles.

The First Appellate Court is the final Court on facts and law. Findings both on facts and law recorded by Rent Controller are open to scrutiny by Appellate Court, which on reappraisal of evidence can come to a different conclusion and substitute its own findings, if the findings recorded by Rent Controller are found to be not based on correct appraisal of evidence. In other words, the findings recorded by Rent Controller are subject to correction by first Appellate Court in appeal.

A.K. Dogar, Advocate Supreme Court and Ch. Irshad Ullah Chatha, Advocate Supreme Court with Walayat Umar, Advocate-on-Record for Petitioner.

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

Date of hearing: 16th and 17th April, 2003.

2006 S C M R 951

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Falak Sher, JJ

MANZOOR HUSSAIN and others---Petitioners

Versus

MEMBER (JUDICIAL-II), BOARD OF REVENUE and others---Respondents

Civil Petition No.2678-L of 2000, decided on 30th December, 2004.

(On appeal from the judgment dated 5-9-2000 of the Lahore High Court, Lahore, passed in Writ Petition No.17747 of 2000).

(a) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----S. 10---Deficiency in petitioner's land was only of eight Marlas---Examination of such question at various stages including Board of Revenue---Validity---Consolidation of holdings and consequent distribution of Wandas being a question of fact, could not be gone into by High Court in exercise of Constitutional jurisdiction---Such question would be examined and decided by Consolidation Authorities under West Pakistan Consolidation of Holdings Ordinance, 1960---Deficiency of land upto ten Marlas was permissible---Supreme Court dismissed petition and refused leave to appeal.

(b) West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----S. 10---Consolidation of holdings and consequent distribution of Wandas---Deficiency of land upto ten Marlas would be permissible.

M. Aftab Iqbal Chaudhree, Advocate Supreme Court with M. Aslam Chaudhry, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 30th December, 2004.

2006 S C M R 953

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Falak Sher, JJ

AZMAT ULLAH---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.569-L of 2003, decided on 25th November, 2003.

(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench, Bahawalpur, dated 14-7-2003 passed in Criminal Appeal No.40 of 2003).

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

----S. 9(c)---Constitution of Pakistan (1973), Art.185(3)---Recovery witnesses had no malice or reasons to falsely implicate the accused with the possession of a huge amount of "Charas" weighing five kilograms and their testimony could not be discarded merely because they were police officials, which otherwise had inspired confidence---Report of Chemical Examiner was in the positive---Impugned judgment of High Court was based on cogent reasons and did not suffer from any illegality---Leave to appeal was refused to accused accordingly.

Abdul Rashid Qureshi, Advocate Supreme Court for Petitioner.

Muhammad Sohail Dar, A.A.-G. Punjab for Respondent.

Date of hearing: 25th November, 2003.

2006 S C M R 954

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Mian Muhammad Ajmal and Falak Sher, JJ

MUHAMMAD RIAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 140 of 2002, decided on 26th September, 2003.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 26-11-2001 passed in Criminal Appeal No.227 of 1997 and Murder Reference No.75 of 1997).

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

---S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to accused to consider the contention that in view of the fact that the Courts had found the motive as alleged in the F.I.R. having not been proved in view of the version given by the accused, there was possibility that the incident had taken place abruptly and as to what occasioned it was shrouded in mystery, which was a mitigating circumstance for lesser punishment.

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

---S. 302(b)---Appraisal of evidence---Accused had abandoned the plea of self-defence later on and did not insist the same in his statement recorded under S.342, Cr.P.C.---Had the accused maintained the plea of self-defence, he should have made a statement to that effect under S.340(2), Cr.P.C. which he had declined to make---Even otherwise, plea of self-defence was not available to accused against the deceased who had no weapon when he was attacked by the accused with a "Chhuri"---Plea of self-defence as such was fabricated and concocted---In absence of any enmity of the prosecution witnesses with the accused and they having no motive to falsely involve him in the case, the question of false charge against the single accused did not arise---Inadequacy, weakness or non-proof of motive or the same having been shrouded in mystery, would not provide to the accused a ground for mitigation of his sentence, if the prosecution case was otherwise proved beyond any doubt by unimpeachable ocular evidence---Courts below had properly appreciated the evidence on record and their conclusion did not warrant any interference---Appeal was dismissed accordingly.

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

---S. 302(b)---Appreciation of evidence---Motive---Principle---Inadequacy or weakness of motive or where motive has been set up but not proved or motive shrouded in mystery, would not be of any significance and would not lend any support to the case of accused as a mitigating circumstance when and where the prosecution has otherwise proved its case beyond any doubt by any unimpeachable ocular evidence.

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

Muhammad Zaman Bhatti, Advocate Supreme Court for the State.

Date of hearing: 26th September, 2003.

2006 S C M R 959

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman, Falak Sher and M. Javed Buttar, JJ

Syed MAZHAR HUSSAIN SHAH through L.Rs.---Petitioners

Versus

MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE and others---Respondents

Civil Petition No.2477(L) of 2001, decided on 4th October, 2004.

(On appeal from the Judgment dated 2-5-2001 of the Lahore High Court, Lahore, passed in Writ Petition No.284 of 1984).

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

----Ss. 10 & 30---Original tenancy under Grow More Food Scheme---Allotment of alternate land---Proprietary right in alternate land, grant of---Complaint against allottee that he was ineligible to get alternate land and proprietary rights as he was not in self-cultivation of original tenancy and had secured order of alternate land through interpolations in entries of Khasra Girdawari by means of ink-remover in collusion with Revenue Staff---Collector resumed land after cancelling order of allotment---Commissioner dismissed appeal of alloteee and directed for registration of case against him and concerned Revenue Staff for making interpolations in Revenue Record---Board of Revenue dismissed revision petition---High Court dismissed Constitutional petition with observations that allottee had been granted ample opportunity to rebut such allegations before Tribunals below, but he had failed to discharge onus; and that High Court had no jurisdiction to substitute its own finding for findings recorded by Tribunals below---Supreme Court dismissed petition and refused leave to appeal as impugned judgment was unexceptionable.

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

----Art. 199---Findings of fact recorded by Tribunals below---Validity---High Court had no jurisdiction to substitute its own findings for the impugned findings.

Ihsan-ul-Haq, Advocate Supreme Court with M.A. Qureshi Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 4th October, 2004.

2006 S C M R 962

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Mian Muhammad Ajmal and Falak Sher, JJ

IBRAR HUSSAIN and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 231 and 232 of 2002, decided on 1st October, 2003.

(On appeal from the judgment, dated 10-10-2001 of Lahore High Court, Lahore passed in Criminal Appeals No.1022 and 1215 of 1999).

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

----S.302/34---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to accused by Supreme Court for reappraisal of evidence.

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

----S.302/34---Appraisal of evidence---Testimony of the complainant and other eye-witness inspired confidence---Prosecution evidence on the points of time, date and place of occurrence was consistent---No dents were created in the testimony of the prosecution witnesses---Dying declaration of the deceased was corroborated by the ocular testimony and the medical evidence indicating fourteen injuries on his person---Five co-accused had been acquitted for the reason that even the prosecuting agency was doubtful about their involvement in the crime---Findings recorded by Trial Court and affirmed by High Court were in accordance with the evidence available on record and not open to any exception---Appeals were dismissed accordingly.

Muhammad Afzal Wahla, Advocate Supreme Court for Appellant (in Criminal Appeal No.231 of 2002).

M. Zaman Bhatti, Advocate Supreme Court for Appellants (in Criminal Appeal No.232 of 2002).

Ainul Haq, Advocate Supreme Court for Respondent.

Date of hearing: 1st October, 2003.

2006 S C M R 966

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad, C.J. and Qazi Muhammad Farooq, J

MUHAMMAD ARSHAD---Petitioner

Versus

THE STATE---Respondent

Criminal petition No.276-L of 2003, decided on 31st October, 2003.

(On appeal from the order, dated 16-9-2003 of the Lahore High Court in Criminal Miscellaneous No.4333-B of 2002).

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

----S.497---Penal Code (XLV of 1860), 5.302/34---Constitution of Pakistan (1973), Art.185(3)---Bail, refusal of---Accused had been specifically nominated in the F.I.R. with a specific role of raising "Lalkara" to facilitate the principal accused to commit the murder of the deceased---Prior to the present occurrence a criminal case was got registered against the accused at the instance of the deceased wherein he and his daughter had to appear as witnesses---In such background it could not be assured at this stage that the "Lalkara" raised by the accused was proverbial---Accused, prima facie, was not entitled to bail---Leave to appeal was refused to accused accordingly.Ch. Muhammad Arshad Ramay, Advocate Supreme Court and C.M. Latif Ramay, Advocate-on-Record for Petitioner.Hasnat Ahmed, Advocate Supreme Court, Faiz-ur-Rehman, Advocate-on-Record and Ms. Yasmin Sehgal, Addl. A.G. Punjab for the State.

Date of hearing: 31st October, 2003.

2006 S C M R 967

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Falak Sher, JJ

MUHAMMAD ASGHAR---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.420-L of 2003, decided on 24th November, 2003.

(On appeal from the order of the Lahore High Court, Lahore, dated 2-6-2003 passed in Criminal Miscellaneous No.2309/B of 2003).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/109/148/149---Constitution of Pakistan, (1973), Art.185(3)---Bail, refusal of---Accused initially had succeeded in getting recorded F.I.R. implicating seven other persons for the murder of the deceased---Mother of the deceased, however, took a different version and straightaway implicated the accused in view of the statements of two prosecution witnesses---Accused during investigation was also found implicated in the case and he was placed in column No.3 of the challan---Mother of the deceased had also filed a complaint wherein the evidence of quite number of witnesses had already been recorded---Prima facie conduct of the accused was not above board as he had got recorded F.I.R. implicating seven other persons and thereafter had remained at large for more than nine months after cancellation of his bail by the High Court---Impugned order suffering from no illegality warranted no interference---Leave to appeal was declined to accused in circumstances.Sardar Muhammad Latif Khan Khosa, Senior Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record for Petitioner.Miss Yasmeen Sehgal, Addl. A.G. Punjab with Investigating Officer Muhammad Riaz for the State.

Date of hearing: 24th November, 2003.

2006 S C M R 969

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Falak Sher and M. Javed Buttar, JJ

MUHAMMAD AMEEN---Petitioner

Versus

Master BASHIR AHMED and others---Respondents

Civil Miscellaneous Application No.1902-L of 2002 in Civil Petition No.2016-L of 1999 decided on 20th October, 2004.(On appeal from the judgment dated 13-10-1999 of the Lahore High Court, Lahore, passed in Writ Petition No.11471 of 1995).

(a). Criminal trial---

----Civil rights of parties---Criminal proceedings could not be made a substitute for such rights.

(b). Criminal trial---

----Relief from Civil Court denial ' of---Party could not be permitted to secure such relief from a Criminal Court---Principles illustrated.Petitioner in person.S.M. Masood, Advocate Supreme Court with Mehmoodul Islam, Advocate-on-Record for Respondents.

Date of hearing: 20th October, 2004.

2006 S C M R 971

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Falak Sher, JJ

ABDULQADIR---Petitioner

Versus

Messrs ZAMAN PAPERS AND BOARD MILLS LTD.---Respondent

Civil Petitions Nos. 753-L and 754-L of 2003, decided on 24th November, 2003.

(On appeal from the judgment, dated 20-2-2003 passed by the Lahore High Court in Civil Revisions Nos.2509 and 2518 of 2002).

Specific Relief Act (I of 1877)---

----S.42---Constitution of Pakistan (1973), Art.185(3)---Suit for declaration---Cross suits in respect of same land by plaintiff and defendant claiming to be owner thereof on basis of their respective sale deeds---Trial Court, after consolidating both suits, decreed plaintiff's suit and dismissed defendant's suit adjudging his sale-deed to be false and frivolous---Appellate Court maintained such findings, but High Court set aside same for the reason that vires of defendant's sale-deed had not been challenged in suit, thus, remanded case to Trial Court for its decision afresh on basis of evidence produced---Impugned judgment was not suffering from any infirmity or illegality meriting interference---Supreme Court dismissed petition and refused leave to appeal.Ch. Muhammad Saleem, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioner.Syed Najam-ul-Hassan Kazmi, Advocate Supreme Court for Respondent.

Date of hearing: 24th November, 2003.

2006 S C M R 973

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwanda sand Syed Deedar Hussain Shah, JJ

COLLECTOR OF CUSTOMS, CUSTOMS HOUSE, JAMRUD ROAD, PESHAWAR and others---Petitioners

Versus

ZARSHAD and others---Respondents

Civil Petition No. I7-Pof 2003, decided on 8th April, 2003.

(On appeal from the order/judgment, dated 2-12-2002 passed by Peshawar High Court, Peshawar in F.A.O. No.5 of 2001).

Customs Act (IV of 1969)---

----Ss. 157 & 196---Constitution of Pakistan (1973), Art.185(3)---Confiscation of vehicle---Authority found vehicle to be smuggled one on basis of report of Forensic Science Laboratory verifying replacement of plate of its chassis number---Such report was signed after 34 days of its preparation---Original order upheld by Tribunal was set aside by High Court on the ground that such report was not admissible---Validity---If such report ,was not admissible without recording evidence, then High Court, instead of substituting findings of fact recorded by forums below, should have remanded case to Tribunal for recording evidence---High Court by deciding appeal on facts had exceeded its jurisdiction--- . Supreme Court accepted appeal, set aside impugned judgment and remanded case to Tribunal with direction to record evidence of representative of Laboratory to prove contents of such report and then decide appeal afresh. Hamid Farooq Durrani, D.A.G. and Tasleem Hussain, Advocate-on-Record (absent) for Petitioners.Abdul Rashid Awan, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondents.

Respondent No.3 not represented.

Date of hearing: 8th April, 2003.

2006 S C M R 975

[Supreme Court of Pakistan]

Present:Iftikhar Muhammad Chaudhry and Tassaduq Hussain Jillani,JJ

DISTRICT COLLECTOR, MULTAN and another--- Petitioners

Versus

MUHAMMAD AKRAM and another---Respondents

Civil Petition No.1425-L of 2001, decided on 27th August, 2004.

(On appeal against the judgment dated 20-2-2001 passed by the Lahore High Court, Multan Bench, in Writ Petition No.216 of 1983).

Colonization of Government Lands (Punjab) Act (V1 of 1912)---

----S. 10---Constitution of Pakistan (1973), Art.185(3)---Criminal Tribes Scheme to non-Muslim Tenants---Allotment of land---Entitlement of allottees---Land was allotted to predecessor-in-interest of respondents and predecessor-in-interest of petitioners contested the allotment---After several rounds of litigation, High Court decided the matter in favour of respondents---Validity---Leave to appeal was granted by Supreme Court to consider, whether under order, dated 10-12-1968, predecessor-in­-interest of respondents could have obtained disputed land under Criminal Tribes Scheme to non-Muslim Tenants as the scheme was admittedly abolished in year 1961; whether after the judgment passed by High Court in earlier round of litigation in two Constitutional petitions, respondents had succeeded to establish their entitlement on disputed land under any scheme, if so, to what effect; whether merely for the reason that respondents were in cultivating possession of land in dispute they could claim its ownership under notification dated 16-1-2002; and whether High Court was right in calling for report from concerned Revenue Authority to inquire whether respondents were in possession of different Killa numbers situated in another square whereas their claim throughout had been that they were in possession of certain Killas in different square.Raja Abdur Rehman, A.A.-G., Aziz Ahmad Chughtai, Advocate Supreme Court and Rao M. Yousaf Khan, Advocate-on-Record (absent) for Petitioners.Malik Abdul Hameed, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Respondents.

Date of hearing: 27th August, 2004. ORDER

IFTIKHAR MUHAMMAD CHAUDHRY, J.--- Petitioners seek leave to appeal against the judgment dated 20th February, 2001 passed by the Lahore High Court, Multan Bench, Multan.

(2). Precisely stating facts of the case are that predecessor-in-interest of Feroze Din got allotted a State land in Square No.95, Chak No.19/9-R, Tehsil Khanewal, District Multan, allegedly under the Criminal Tribes Scheme to non-Muslims Tenants. It is pertinent to note that statedly the land was in possession of non-Muslim Evacuee Occupancy Tenant and Government had decided to allot the State land to Evacuees who had migrated from India against their verified claim. Subsequently litigation between the predecessor-in-interest of the respondents and one Nabu who was in occupation of the land started and ultimately the Member, Board of Revenue cancelled the allotment from the name of Feroze Din in Square No.95 and remanded the case to the District Collector, Multan to examine the entitlement of Nabu on the land in dispute. After the death of Feroze Din his successor-in-interest filed Writ Petition No.1303 of 1969 before learned High Court which was disposed of vide judgment dated 18th October, 1972, whereby learned High Court made observation that if Nabu fails to establish his claim that he is an old allottee of the disputed land under the said scheme, both Nabu and Feroze Din will be heard for their entitlement afresh under this scheme. On remand of the case the District Collector, Multan vide order dated 12th June, 1973 observed that both of them are not previous allotted of the disputed land. This order was challenged by the predecessor-in-interest of the respondents within the hierarchy of Land Revenue Laws. Ultimately the Member, Board of Revenue on 8th June, 1974 maintained the order dated 12th June, 1973 passed by the District Collector. As such another Writ Petition No.1708 of 1974 before the High Court was filed by the respondents which was dismissed. After the dismissal of writ petition matter again went before the Revenue Authorities on the behest of legal heirs of Nabu as well as respondents. On 21st December, 1982 the Member, Board of Revenue observed that both are not entitled for the allotment of the land, as such respondents instituted another Writ Petition No.261 of 1983 which has been disposed of by means to impugned judgment.

(3). Learned counsel for petitioners contended that the respondents are not entitled for the allotment of the land because their claim has been rejected as back as on 12th June, 1973 by means of order passed by the District Collector, Multan and subsequent order passed by the Member, Board of Revenue, dated 21st December, 1982. He further contended that learned High Court without taking into consideration that as far as the allotment in favour of the predecessor-in-interest of respondent Feroze Din, under the claim for allotment of land to certain criminal Tribes is concerned, it was abolished as back as in the year 1961 whereas the allotment in favour of Feroze Din was made in the year 1968 which was cancelled as he was not found entitled to retain possession of the land. It is also his case that there is discrepancy in the impugned judgment because in respect of claim of predecessor-in-interest for allotment of land in Square No.95 learned Single Judge in Chambers of High Court had obtained a report from the Assistant Collector to ascertain as to whether respondents are in possession of different Killa numbers situated in Square No.94 and on the basis of same it was observed that they are in cultivating possession so that are entitled for the allotment of land.

(5). On the other hand learned counsel for caveat contended that the allotment was made in favour of Feroze Din under the Criminal Tribes Scheme to non-Muslim Tenants meant for the allotment of land to the Criminal Tribes and subsequently, vide notification dated 16th January, 2002 has been validated, therefore, respondents being in cultivating position has obtained the status of owners under this notification and for such reason learned High Court has rightly disposed of the matter, in their favour.

(6). After hearing both the sides, following questions emerged for consideration:--

(1). Whether under order dated 10th December, 1968 predecessor-in-­interest of respondent namely Feroze Din could have obtained the disputed land under the Criminal Tribes Scheme to non-Muslims Tenants as it was admittedly abolished in the year 1961?

(2). Whether after the judgment passed by the learned High Court in the earlier round of litigation in Writ Petitions Nos. 1303 of 1969 and 1078 of 1974 the respondents have succeeded to establish their entitlement on the disputed land under any scheme if so to what effect?

(3). Whether merely for the reason that respondents are in cultivating possession of the land in dispute can claim its ownership under notification dated 16th January, 2002?

2006 S C M R 978

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Nasir-ul-Mulk, JJ

ATTARABBANI----Appellant

Versus

SECRETARY EDUCATION, GOVERNMENT OF THE PUNJAB, LAHORE and 3 others----Respondents

Civil Appeal No.272 of 2005, decided on 22nd November, 2005.

(On appeal from the Punjab Service Tribunal, dated 31-12-2002 passed in Appeal No.1688 of 2002).

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

----S. 12(i)---Constitution of Pakistan (1973), Art.212 (3)---Premature retirement---Plea raised by civil servant was that order of his premature retirement from service under .S.12 (i) of Punjab Civil Servants Act, 1974, could not be passed by way of penalty for which disciplinary proceedings were required to be taken---Civil servant further raised the plea that he had been exonerated of the allegations forming subject-matter of proceedings on the basis of which he was compulsorily retired from service---Leave to appeal was granted by Supreme Court to consider the pleas raised by the civil servant.

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

----S. 12(i)-'Public interest'---Connotation---Expression public interest' implies a matter relating to people at large, nation or a community as a whole and if interest of general public or community is not involved in a matter, it cannot be brought within the purview ofpublic interest'---Object of S.12(i) of Punjab Civil Servants Act, 1974, is based on subjective consideration and requirement of public interest' may vary from case to case, therefore, competent authority must have reasonable nexus withpublic interest'---Ordinarily Tribunal or Court is not supposed to substitute reasons for public interest and interference in the matter but such rule is subject to certain exceptions---Exception, in service matters, is that assessment of performance of a person to judge his suitability, must not be based on personal reason or the consideration not related to public interest.

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

---S. 12(i)-Compulsory retirement---Public interest---Proof---Civil servant was compulsorily retired from service in public interest on the allegation of embezzlement of government funds---Order passed by authorities was maintained by Service Tribunal---Validity---Allegation regarding embezzlement of government funds by civil servant stood, negated by the report of inquiry committee---Opinion of competent authority that civil servant had outlived his utility and his further retention in service was not in public interest was not based on any material or sound reasons---Retirement under S.12 (i) of Punjab Civil Servants Act, 1974, was not a punishment and the order under such provision was not ordinarily interfered but the use of such power without satisfying the requirement of public interest was not proper to deprive a person from his legitimate right of service as source of earning---Authorities failed to satisfy the Supreme Court that report of inquiry committee or recommendation of District Education Officer were against the record or order passed by competent authority under S.12 (i) of Punjab Civil Servants Act, 1974, was in public interest---Judgment passed by Service Tribunal was set aside and Supreme Court directed the authorities to reinstate civil servant in service---Appeal was allowed. Shaukat Aziz Siddiqui, Advocate Supreme Court for Appellant. Syed Sajjad Hussain Shah, A.A.-G. for Respondents.

Date of hearing: 22nd November, 2005.

2006 S C M R. 984

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Nasir-ul-Mulk, JJ

GHULAM QADIR and others----Petitioners

Versus

GHULAM FAREED and others----Respondents

Civil Petition No.1167-L of 2004, decided on 6th April, 2006.

(On appeal from the order, dated 13-1-2004 of the Lahore High Court, Multan Bench Multan passed in Regular Second Appeal No.15 of 1994).

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

----Ss. 4 & 22---Pre-emption suit---Non-deposit of pre-emption money in time---Effect---Plaintiffs, in the present case had been granted 30 days to deposit pre-emption money with effect from 6-4-1967 ( judgment and decree of the Trial Court) and by the time plaintiffs filed appeal i.e. 4-5-1967, a period of 28 days had already lapsed---Judgment of the Trial Court was suspended by the Appellate Court on 5-5-1967 while admitting appeal of the plaintiffs but said appeal was dismissed on 2-9-1968---Plaintiffs deposited the pre-emption money on 8-10-1968 which was after a delay of 36 days after the judgment of Appellate Court and if the period of 28 days (between the Trial Courts' judgment the filing of appeal before the Appellate Court) was added, after a delay of 46 days---Law was strict in matters of deposit of ,pre-emption money---No direction, in the present case was given by the Appellate Court while dismissing plaintiffs' appeal to deposit the pre-emption money within reasonable time and the effect was that the pre-emption money had to be deposited in terms of the judgment and decree of the Trial Court i.e. within 30 days---Resultantly the suit was dismissed for non-deposit of pre-emption money. Dost Muhammad v. Nazar Hussain Khan 1984 SCMR 325 distinguished.Khurshid Akbar v,. Mian Manzoor Ahmed and another 1982 PSC 812 ref.Aurangzeb Mirza, Advocate Supreme Court and Mehmud-ul-Islam, Advocate-on-Record for Petitioners.Ch. Khurshid Ahmed, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Respondent No.1.

Date of hearing: 6th April, 2005. ORDER

TASSADUQ HUSSAIN JILLANI, J.--- Through this petition, leave is sought against the judgment, dated 13-1-2004 passed by a learned Single Judge of the Lahore High Court vide which petitioner's Regular Second Appeal No.15 of 1994 directed against the judgment and decree of the learned District Judge was dismissed.

(2). The facts necessary for disposal of this petition are that respondents filed pre-emption suit qua the transaction of sale subject-matter of this petition. The suit was decreed by the trial Court vide judgment and decree dated 6-4-1967 and respondent/plaintiffs were directed to deposit the pre-emption money by 15th May, 1967 i.e. within 30 days. Respondent filed an appeal against the afore-referred judgment on question of price of the suit-land on 4-5-1967 and the District Judge suspended the operation of the judgment and decree of the trial Court on 5-5-1967. Petitioners/defendants also filed an appeal, both these appeals were dismissed by the District Judge vide the judgment and decree dated 2-9-1968, through two separate judgments. Respondents challenged the judgment and decree of the District Judge through Regular Second Appeal No.758 of 1968 again raising the question of price whereas the petitioners did not challenge the judgment of the District Judge as according to learned counsel for the petitioners, on failure of deposit by respondents/plaintiffs within the time mandated by the trial Court the suit automatically stood dismissed and there was no occasion for him to file the appeal. The learned High Court dismissed respondent's regular second appeal on 29-5-1989 against which respondent filed Civil Appeal No.1303 of 1999, the same was allowed and the case was remanded to the District Judge to decide appeal afresh after hearing the parties. This Court inter alia observed as follows:--

"We have heard learned counsel_for the parties and we are of the view that it is not necessary for us to decide in this appeal the question, whether the appellant was to deposit the pre-. emption money within 9 days from the date of dismissal of his appeal i.e. on 2-9-1968 by the learned District Judge. It will suffice to observe that the appellant had filed the above civil appeal without depositing the decretal amount at his peril. Since the appellant's above civil appeal was dismissed by the learned District Judge under misconception that the same was barred by time though factually it was not so, the appellant is entitled to the rehearing of his above civil appeal. (Emphasis is supplied).

(3). After remand the learned District Judge vide the judgment and decree, dated 30-6-1994 dismissed the appeal again. The learned District Judge while deciding the appeal afresh also heard petitioners/defendants on merits having allowed their application under Order XLI, rule 33 of the Civil Procedure Code and adverted to the pleas raised by the petitioners/defendants with regard to the question of respondents/ plaintiffs' superior right of pre-emption, as also the question that the suit stood dismissed for non-deposit of pre-emption money in terms of the judgment and decree of the learned trial Court. Both these questions were decided against the petitioners. This judgment of the learned District Judge was challenged by the petitioner in Regular Second Appeal No.15 of 1994 which stands dismissed vide the impugned judgment, dated 13-1-2004.

(4). Learned counsel for the petitioner impugns the concurrent judgments of the three Courts below both on merit and also on the question that the pre-emption money having not been "deposited by the respondents within the period provided by the trial Court, the suit stood automatically dismissed and there was no occasion for the District Judge to hear him on merit after the remand by this Court. Corning to the merits of the case, he contended that admittedly the land (a piece of 4 Kanals) on the basis of which respondents/plaintiffs claimed their superior right was sold (on 18-12-1965 whereas the suit was filed on 29-7-1966) by them before filing the civil suit, They had no superior right at the time when they filed the suit and, therefore, the suit could not have been decreed.

(5). Learned counsel for the respondents does not deny the fact that respondents/plaintiffs did part with 4 Kanals of land on 18-12-1965 but according to him the said transaction was a transaction of exchange and by virtue of the same transaction they became owner of 20 Kanals of land, the same day i.e. 18-12-1965 and, therefore, they continued to be a Sharik-e-Khata to assert their right of pre-emption. Coming to the question of non-deposit of the pre-emption money, he contended that when the respondents challenged the judgment and decree of the trial Court dated 6-4-1967 before the District Judge by filing an appeal on 4-5-1967, the judgment and decree of the trial Court was suspended by the District Judge on 4-5-1967 and after dismissal of their appeal i.e. on 2-9-1968 they deposited the pre-emption money within a reasonable time i.e. on 8-10-1968. According to him, in absence of any direction of the Appellate Court with regard to the deposit of pre-emption money the same had to be deposited within reasonable time and this aspect has been adverted to by the District Judge which finding has very aptly been affirmed by the learned High Court while dismissing petitioners' appeal. In support of these submissions, he relied on the judgment of this Court in Dost Muhammad v. Nazar Hussain Khan 1984 SCMR 325.

(6). We have considered the submissions made by both the learned counsel and have gone through the precedent case-law cited at the bar.

(7). A bare reading of the judgment of this Court in Civil Appeal No.1303 of 1999, a paragraph of which has been reproduced in para.2 above would indicate that the question of the effect of non-deposit of pre-emption money had been kept open to be decided by the District Judge when it observed that, "It will suffice to observe that the appellant had filed the above civil appeal without depositing the decretal amount at his peril". After remand, the learned District Judge repelled petitioners/ defendants' objection regarding this question in para.7 of his judgment on the ground as under:--

"After filing of the appeal, order of the learned trial Court directing the deposit of pre-emption money was held in abeyance vide order, dated 5-5-1967. This order was confirmed on 8-6-1967. Appeal was disposed of under misconception. Moreover no direction was given with regard to deposit of pre-emption amount. Now after remand, appellant is standing at same position as it was on 8-6-1967 when stay order was confirmed. He deposited pre-emption amount on 8-10-1968 at his own accord."

(8). Learned District Judge while giving afore-referred finding did not advert to the fact that respondents/plaintiffs had been granted.30 days to deposit pre-emption money with effect from 6-4-1967 (judgment and decree of the trial Court) and by the time respondents/plaintiffs filed the appeal i.e. on 4-5-1967, a period of 28 days had already lapsed. The judgment of the trial Court was suspended by the appellate Court on 5-5-1967 while admitting appeal of the respondents/plaintiffs but this appeal was dismissed on 2-9-1968. They deposited the pre-emption money on 8-10-1968 which is after a delay of 36 days after the judgment of the learned District Judge and if the period of 28 days (between the trial Court's judgment the filing of appeal before the District Judge) is added, after a delay of 46 days. The learned High Court while, passing the impugned judgment did not consider this ground although it was specifically taken in the grounds of appeal.

(9). In matters of deposit of pre-emption money, the law is strict. The judgment to which reference has been made by respondents' learned counsel reported as Dost Muhammad v. Nazar Hussain Khan 1984 SCMR 325 is of no avail to him because in the said judgment the District Judge while disposing of the appeal had by implication extended the period by observing that the pre-emption money should be deposited "within" reasonable time. However, in the instant case there was no direction by the District Judge while dismissing respondents' appeal to deposit the pre-emption money within reasonable time and the? effect was that the pre-emption money had to be deposited in terms of the judgment and decree of the trial Court i.e. within 30 days. In the case Khurshid Akbar v. Mian Manzoor Ahmed and another 1982 PSC 812 to which reference has been made by petitioners' learned counsel a similar issue came up for consideration and a delay of 9 days in depositing the pre-emption money was considered fatal. The Court observed as under:

"According to the appellant, he obtained the copy of the judgment on 2-7-1969. If this was even taken to be the date on which he became aware of the terms of the order of the learned District Judge, he took no tangible steps towards depositing the pre-emption amount in Court, but merely confined his activities to consulting lawyers in this connection and then moved an application for fixing some time for making the deposit. The delay of 9 days, in the context of the case, was an unreasonably long time when we see that this was a pre-emption matter, the appellant himself had sought the suspension of the decree of the trial Court, so far as making of deposit was concerned to use this Court's expression `at his own peril' and the slightest indolence and lethargy shown by him after his appeal had failed,could be fatal to his case. Therefore, after obtaining the copy on 2-7-1969, he could not waste any further time."

2006 SCMR 989

[Supreme Court of Pakistan]

Present:Falak Sher and, Ch. Ijaz Ahmad ,JJ

MUHAMMADIJAZ-UL-HAQ----Petitioner

Versus

EXECUTIVE DISTRICT OFFICER and others----Respondents

C.P. No.2361-L of 2004, decided on 6th April, 2006.

(On appeal from order, dated 9-6-2004 passed by the Punjab Service Tribunal, Lahore in Service Appeal No.386 of 2004)..

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

----Art. 212(3)---Civil service---Secondary School Teacher during his service acquired Master's degree (Urdu) and applied for grant of three advance increments for possessing higher academic qualification in accordance with para.15 of the Government Policy dated 25-8-1983---Validity---Held, if the relevant notifications and the Rules were put in juxtaposition, it was clear that the teacher, was not entitled to advance increments after securing qualification in M.A. (Urdu) which had already been declared equivalent to M.Ed. coupled with the fact that for the initial recruitment for the post in question the competent authority had prescribed qualification of M.Ed. in the year 1987 whereas the teacher had secured qualification of M.A.(Urdu) in the year 2001.

(b). Interpretation of statutes---

----If the word is not defined in the Rules, then the meaning of the word must be understood as defined in the dictionary---Dictionary meaning is relevant to understand intention of the policy maker---Principles.

(c). Words & phrases---

----"Higher" meaning.

Chambers English Dictionary ref.

(d). Interpretation of statutes---

----Court cannot add any word in the rules/notifications as the court has only jurisdiction to interpret law.

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

----Art. 212(3)---Supreme Court, normally would not interfere in the concurrent conclusions of the Tribunal below while exercising power under Art.212(3) of the Constitution---Where the petitioner had failed to raise any substantial question of law of public importance as contemplated in Art.212(3) of the Constitution, petition for leave to appeal was dismissed.Zia-ur-Rehman's case PLD 1973 SC 49; Hakim Ali's case PLD 1992 SC 595; Mian Nawaz Sharif's case PLD 1993 SC 473; Zamir Ahmad Khan's case PLD 1975 SC 667; Zamir Ahmad Khan's case 1978 SCMR 327; Javaid Aziz Qureshi's case 1998 SCMR 2553 and Maqbool Ahmad Khan's case 2001 SCMR 1909 ref.Muhammad Hussain Awan, Advocate Supreme Court for Petitioner.Nemo for Respondents.

Date of hearing: 6th April, 2006.

2006 S C M R 995

[Supreme Court of Pakistan]

Present:Rana Bhagwandas, Saiyed Saeed Ashhad and Hamid Ali Mirza, JJ

SAIF NADEEM BICYCLE LIMITED, LAHORE

through M.D.----Petitioner

Versus

MEMBER, BOARD OF REVENUE, PESHAWAR

and another----Respondents

Civil Petition No.452 of 2004, decided on 16th December, 2005.

(On appeal from the order, dated 20-11-2003 in Writ Petition No.212 of 2003 passed by the Peshawar High Court, Abbottabad Bench).

Constitution of Pakistan (1973)---

----Arts. 199 & 185(3)---Constitutional jurisdiction of High Court under Art.199 of the Constitution---Scope---Constitutional jurisdiction of High Court could not be exercised after inordinate delay of 10/I1 years without any compelling circumstances or a sufficient cause---Prayer of. the petitioner, in the present case, before Member of Provincial Board of Revenue that his case should have been referred to the Civil Court for adjudication was completely misconceived and against all canons of law which could not be allowed by the said Authority---High Court,. while non-suiting the petitioner in the exercise of its constitutional jurisdiction, had passed a just, fair and proper order---Entire exercise by the petitioner against private respondent appeared to be tainted with mala fide---Supreme Court, while dismissing the petition for leave to appeal of the petitioner, imposed special costs of Rs.10,000 on the petitioner, to be deposited in the office of the Supreme Court within three days for payment to the private respondent, failing which the same shall be recovered through process of law.Petitioner in person.Habibur Rehman, Advocate Supreme Court and Abdul Qadir Khan, Advocate Supreme Court for Respondent No.2.

Date of hearing: 16th December, 2006.

2006 S C M R 997

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

DISTRICT COORDINATION OFFICER, NAROWAL

and others----Petitioners

Versus

ANSAR PERVAIZ----Respondent

Civil Petitions Nos.409 and 410-L of 2004, decided on 15th December, 2005.

(On appeal from the judgment, dated 27-10-2003 passed by the Punjab Service Tribunal, Lahore, in Appeals Nos.841 of 2003 and 842 of 2003).

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

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Compulsory retirement---Respondents, who were appointed as Dispensers, were directed to get their services regularized within 90 days failing which they would be considered to be out of service---Representations of respondents having been rejected by Departmental Authorities they filed appeals before Service Tribunal which were partly allowed by impugned judgment whereby their penalty of removal from service was converted into compulsory retirement---Respondents had rendered about 14/15 years' service---Authorities could not take benefit of their inaction at the relevant time---Service Tribunal in facts and circumstances of the case, was quite justified in converting penalty of removal of respondents from service into compulsory retirement---Petitions not involving any substantial question of law of public importance within meaning of Art.212(3) of the Constitution, were dismissed and leave to appeal was refused.Aziz Ahmad Chughtai, Advocate Supreme Court with Rao Muhammad Yusuf Khan, Advocate-on-Record for Petitioners (in both cases).Pervaiz Inayat Malik, Advocate Supreme Court and Tanveer Ahmad, Advocate-on-Record for Respondent No.1.

Date of hearing: 15th December, 2005.

2006 SC MR 999

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ

MUHAMMAD SABIR----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.456 of 2004, decided on 20th March, 2006.

(On appeal from the judgment, dated 2-11-2004 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Criminal Appeal No.123 of 1999).

Constitution of Pakistan (1973)---

----Art. 185(3)---Neither petitioner/accused, nor acquitted accused and proclaimed offenders, were nominated in F.I.R.---Co-accused were acquitted on same evidence---Prosecution had not disclosed any source about involvement of petitioner or that of other accused---Even Investigating Officer, had not shown the source of involvement of petitioner in the offence---Identification test had been held after a • considerable delay for which no explanation had been furnished---Leave to appeal was granted to reappraise and re-evaluate evidence in detail for safe administration of justice.Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.Dil Muhammad Tarar, Advocate Supreme Court for the State.

Date of hearing: 20th March, 2006.

2006 S C M R 1000

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Nasir-ul-Mulk, JJ

DAUD SHAH and another----Appellants

Versus

PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY

and others----Respondents

Civil Appeals Nos.1387 and 1388 of 2004, decided on 10th November, 2005.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad, dated 3-10-2002 passed in Appeals Nos.51 and 52(P) CE of 2001).

(a) Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----S. 11---Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978, Rr.4 & 5---Constitution of Pakistan (1973), Art.2l2 (3)---Leave to appeal was granted by Supreme Court to consider the contentions of the employees that in view of S.11 of Removal from Service (Special Powers) Ordinance, 2000, promulgated w.e.f. 27-5-2000, the authorities were devoid of any power to take disciplinary proceedings against them under Pakistan Water And Power Development Authority (Efficiency and Discipline) Rules, 1978---Employees further contended that facts and circumstances of the case called for holding of regular inquiry into the charges against them, therefore, recourse to procedure of Efficiency and Discipline Rules, adopted by authorities was unwarranted.Pakistan International Airlines Corporation through ManagingDirector PIAC, Head Office, Karachi Airport, Karachi v. Ms. Shaista Naheed 2004 PLC (C.S.) 344 ref.

(b) Pakistan Water and Power Development Authority (Efficiency and Discipline) Rules, 1978---

----Rr. 4 & 5---Negligence---Direct responsibility of loss----Proof---Employees were officers in Water and Power Development Authority and were proceeded against on the allegation of loss caused to the Authority in payment of wages to labour at site--After departmental proceedings, employees were awarded major penalty of two steps down in their time scale for a period of two years coupled with recovery of loss---Penalty imposed in departmental proceedings was maintained by Service Tribunal---Validity---No evidence was available on record to suggest that the employees were directly responsible for causing loss to exchequer but since they were found careless in the matter of payment of wages, therefore, Supreme Court declined to take any exception to the finding of Service Tribunal to the extent of charge of negligence against them---Order relating to penalty of reduction to two steps in time scale for a period of two years was justified but to burden the employees with recovery of loss was not proper---Supreme Court set aside order of departmental authority regarding recovery of loss of Government money from the employees and maintained judgment of Service Tribunal to the extent of penalty of reduction to two steps in time scale for a period of two years---Judgment of Service Tribunal was modified accordingly---Appeal was partly allowed.I.G.HQ. Frontier Corps v. Ghulam Hussain 2004 SCMR 1397 ref.Raja Muhammad Asghar Khan, Advocate Supreme Court with Muhammad Ahmed Zaidi, Advocate-on-Record for Appellants (in both appeals).Muhammad Munir Peracha, Advocate Supreme Court with Ch. Muhammad Akram, Advocate-on-Record for Respondents (in both appeals).

Date of hearing: 10th November, 2005.

2006 S C M R 1004

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Falak Sher, JJ

AZHAR SHAHZAD----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.91 of 2005, decided on 17th March, 2006.

(On appeal from the judgment, dated 9-2-2005 of the Lahore High Court, Rawalpindi Bench, passed in Criminal Appeal No.64/T of 2004).

Penal Code (XLV of 1860)---

----S. 365-A---Constitution of Pakistan (1973), Art.185(3)---Complainant/father of alleged abductee as well as the abductee, having died in an accident, both of them could not be examined in the Trial Court---Effect of non-appearance of both complainant and alleged abductee would be seen at the trial of accused---Five co-accused of petitioner/accused were acquitted on the basis of same evidence used against petitioner---Leave to appeal was granted by the Supreme Court in order to determine certain important facts as evidence on record required a complete reappraisal. Syed Zafar Abbas Nagvi,, Advocate Supreme Court with Arshad Ali Chaudhry, Advocate-on-Record for Petitioner.M. Zaman Bhatti, Advocate,Supreme Court for the State.

Date of hearing: 17th March, 2006.

2006 S C M R 1005

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Bhatti and Mian Shakirullah Jan, JJ

GOVERNMENT OF PAKISTAN through Secretary

M/o Finance and others----Petitioners

Versus

ASIF ALI and others----Respondents

Civil Appeals No.1781 and 1782 of 2001, decided on 11th October, 2005.

(On appeal from the judgment, dated 28-4-2001 passed by the Federal Service Tribunal in Appeal No.908(L) of 1997 in both cases).

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

---Art. 212(3)---Leave to appeal was granted by Supreme Court to consider; whether findings of Service Tribunal reversing the findings of departmental authority were based on evidence on record or were based on conjectures or surmises.

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

----Art. 212(3)-Leave to appeal was granted by Supreme Court to consider that if order of reinstatement of civil servant in service was upheld, could he be declined in law the arrears of pay for the period he remained out of service in the facts and circumstances of the case.

(c) Civil service---

---Misconduct---"Departmental" and "criminal proceedings"---Distinction---Prosecution before a regular Court for charge of criminal misconduct and departmental proceedings for charge of misconduct being governed by different laws and rules of procedure, are entirely different---Misconduct under Government Servants (Efficiency and Discipline) Rules, 1973, means conduct prejudicial to the good order of service, discipline or of unbecoming of an officer and a gentleman and contrary to Government Servants (Conduct) Rules, 1964 whereas charge of criminal misconduct is based on the element of mens rea and criminal intent---Criminal Courts in the light of strict observance of law of evidence, have to judge admissibility of evidence to hold a person guilty of criminal charge but in case of charge of misconduct, departmental authorities are not required to follow technicalities of law---Unless essential elements of components of a criminal offence are proved through evidence, direct or circumstantial, the conviction is not possible, whereas in case of misconduct, departmental authorities may not follow complicated procedure of criminal Courts and rule of appraisal of evidence, rather such authorities in the light of general principle of law may determine question of guilt or innocence of a person by giving him a fair and adequate opportunity of hearing in accordance with law.

(d) Government Servants (Efficiency and Discipline) Rules, 1973---

---Rr. 2(a) & 5(1)(ii)---Criminal Procedure Code (V of 1898), S.265-K---Misconduct---Misappropriation of Government funds---Acquittal by criminal court---Effect---Civil servant while posted as Officer Incharge at National Savings Centre found involved in financial irregularities---Departmental authority passed his order of dismissal from service-In addition to departmental proceedings, civil servant was also proceeded against for criminal charge of misappropriation of government money, in which he was acquitted under S.265-K, Cr.P.C.---Service Tribunal on the basis of acquittal from criminal charge, set aside order of dismissal of civil servant and directed his reinstatement in service---Validity---Standard of evidence and method of proving charge of misconduct and criminal charge before a regular Court was not the same, therefore, acquittal of a person from charge of criminal misconduct by criminal Court might be a relevant factor to ascertain nature of misconduct in departmental proceedings but could not be, as such, a reason to exonerate him from the charge of misconduct under Government Servants (Efficiency and Discipline) Rules, 1973---Charge of misconduct against civil servant was based on allegation of corruption and misuse of office for personal gain and in support thereof direct evidence was brought on record but Service Tribunal for misconception of law, without taking into consideration such evidence, proceeded to set aside order passed by competent authority on the basis of judgment of criminal court---Judgment passed by Service Tribunal was set aside---Appeal was allowed.Raja Muhammad Irshad, D.A.-G. and Ch. Akhtar Ali, Advocate-on-Record for Appellants (in Civil Appeal No.1781 of 2001).Nemo for Respondent (in Civil Appeal No.1781 of 2001). Appellants in person (in Civil Appeal No.1782 of 2001).Raja Muhammad Irshad, D.A.-G. and Ch. Akhtar Ali, Advocate-on-Record for Respondents (in Civil Appeal No.1782 of 2001).

Date of hearing: I Ith October, 2005.

2006 S C M R 1012

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, Muhammad Nawaz Abbasi and Saiyed Saeed Ashhad, JJ

MUHAMMAD AFZAAL----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.218 of 2004, decided on 14th February, 2006.

(On appeal from the judgment, dated 10-5-2004 of the Lahore High Court, Lahore, in Criminal Appeal No.67-J of 1999).

Penal Code (XLV of 1860)---

----Ss. 302, 324 & 337-F(ii)---Constitution of Pakistan (1973), Art.185(3)---No reason existed to interfere with concurrent findings of two Courts below with regard to guilt of accused---Eye-witness account furnished by witnesses, was found to be trustworthy by the Trial Court as well as by first appellate court---No inherent defect or material lacuna was found in the evidence of witnesses whose presence at the site, had been established beyond any shadow of doubt---Counsel for petitioner had conceded that conviction and sentence had been properly awarded---Leave to appeal was refused.Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.Raja Saeed Akram, A.A.-G., Punjab for the State.

Date of hearing: 14th February, 2006.

2006 S C M R 1014

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi and Nasir-ul-Mulk, JJ

CHIEF MINISTER, N.W.F.P., PESHAWAR and 2 others----Appellants

Versus

MUHAMMAD ZIAUL HAQ, SUB-ENGINEER, HARIPUR----Respondent

Civil Appeal No.1289 of 2001, decided on 29th November, 2005.

(On appeal from the judgment of the Service Tribunal, N.-W.F.P., Peshawar in Appeal No.876 of 1998, dated 10-2-2001).

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

---S. 4---Constitution of Pakistan (1973), Art.212 (3)---Leave to appeal was granted by Supreme Court to consider; whether documents/letters etc. relied upon by Service Tribunal justified order of reinstatement of civil servants; and whether appeal before Service Tribunal was time-barred or not.

(b) North-West Frontier Province Service Tribunals Act (1 of 1974)---

---S. 4---Reinstatement in service---Concessional statement of departmental representatives---Effect---Misreading and non-reading of evidence---Civil servant being a Sub-Engineer was compulsorily retired from service on the allegation of embezzling government funds---Service Tribunal allowed the appeal and reinstated civil servant in service---Contention of civil servant was that in view of the position explained by departmental representatives before Service Tribunal, the finding of Inquiry Officer and the order passed on the basis of inquiry report had no legal value---Validity---Inquiry Officer having considered the reply of civil servant to the charge held him guilty---Contention of civil servant had no substance and Service Tribunal instead of appreciating factual position on record, decided the matter on the basis of concessional statement made by departmental representatives---Service Tribunal failed to decide the appeal in proper exercise of jurisdiction---Finding of Service Tribunal not based on record was suffering from the defect of misreading and non-reading of evidence brought on record in support of charge---Judgment passed by Service Tribunal was set aside and order of compulsory retirement passed by departmental authority was restored---Appeal was allowed Muhammad Issa Khan, Additional Advocate-General for Appellants Muhammad Munir Peracha, Advocate Supreme Court for Respondent.

Date of hearing: 29th November, 2005.

2006 S C M R 1018

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Nasir-ul-Mulk, JJ

JAVED AKHTAR and others----Petitioners

Versus

CHIEF ENGINEER, HIGHWAY DEPARTMENT and others----Respondents

Civil Petitions Nos.1635 and 1805-L of 2004, decided on 4th April, 2006.

(On appeal from the order, dated 31-3-2004 of the Punjab Service Tribunal passed in Appeal No.2127 of 2003).

Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)---

----S. 3---Constitution of Pakistan (1973), Art.212(3)---Removal from service on the charge of absence from duty, allegations of inefficiency and not knowing his job---Department had not placed on record anything to indicate that the application for medical leave of the civil servant was ever disallowed and the order was conveyed to him---In the absence of such document no adverse presumption or inference could be drawn against the civil servant's conduct particularly in view of the fact that medical slips issued by the Government Hospital were duly countersigned by the Medical Superintendent of the Hospital---Allegations of inefficiency and not knowing his job were based on conjectures and were not based on any adverse entry in the Annual Confidential Report or backed by any inquiry carried out by the Department---Judgment of Service Tribunal, in circumstances, could not he sustained in law whereunder dismissal of civil servant was converted into compulsory retirement---Period in which civil servant remained out of service was directed to be treated as leave of the kind due.Farooq Zaman Qureshi, Advocate Supreme Court for Petitioners (in C.P. No.1635-L of 2004).Mrs. Salma Malik, A.A.-G. for Petitioners (in C.P. No.1805-L of 2004).Ch. Aamir Rehman, Additional Advocate-General for the State.

Date of hearing: 4th April, 2006.

2006 S C M R 1021

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ

MUKHTAR SHAH----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.163 of 2004, decided on 21st March, 2006.

(On appeal from the judgment of Lahore High Court, Lahore, dated 19-8-2002 passed in Criminal Appeal No.87-J of 2001).

Penal Code (XLV of 1860)---

---S. 302---Constitution of Pakistan (1973), Art.185(3)---Petition was barred by 579 days for which no plausible explanation had been furnished---No illegality, misreading or non-appreciation of any material on record had been pointed out by accused---Accused had alleged that his deceased wife was a lady of bad-character and according to him, on the eventful night deceased had gone outside the house in field; her brother followed her and finding her in objectionable position with someone her brother, killed her---Said plea had not been established by accused to be true---Accused neither examined himself on oath nor led any evidence to rebute case of prosecution against him, which otherwise .was fully established on record by prosecution, whereby accused was apprehended at the spot while committing murder of his wife at the door of his house---Concurrent finding recorded by two Courts below with regard to guilt of accused, could not be interfered with. Syed Rafaqat Hussain Shah, Advocate Supreme Court for Petitioner Muhammad Zaman Bhatti, Advocate Supreme Court for the State.

Date of hearing: 21st March, 2006.

2006 S C M R 1023

[Supreme Court of Pakistan]

Present: Falak Sher and Ch.Ijaz Ahmad,JJ

M.D. THE BANK OF PUNJAB and another---Petitioners

Versus

Syed SHAHZAD HUSSAIN----Respondent

C.P. No.1806-L of 2005, decided on 3rd April, 2006.

(On appeal from order, dated 28-6-2005 passed by Lahore High Court in Labour Appeal No.195 of 2003).

(a) Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)---

----S. 3---Constitution of Pakistan (1973), Art.185(3)---Petition for leave to appeal---Petitioner had not taken the ground in the memorandum of petition regarding assumption of jurisdiction by the authorities under Punjab Removal from Service (Special Powers) Ordinance, 2000---Parties being bound by their pleadings, such ground, being a fresh plea, could not be taken before the Supreme Court. Bashir Ahmad Khan's case PLD 1973 SC 507 and Ashfaqur Rehman's case PLD 1971 SC 766 ref.Muslim Commercial Bank Ltd. v. Mehmood Ahmad Butt 1997 SCMR 1261 and National Bank of Pakistan v. Punjab Labour Appellate Tribunal (sic) distinguished.

(b)Interpretation of statutes---

----Principles of natural justice must be read in each and every statute unless and until was prohibited by the wording of the Statute itself.Sir Edward Snelson's case PLD 1961 Sc 237; Fazlur Rehman's case PLD 19(4 SC 410; Zakir Ahmad's case PLD 1965 SC 90 and Pakistan ChrEnne Mines's case 1983 SCMR 1208 ref.

(c) Administration of justice--

----Each and every case .is to be decided on its own peculiar circumstances and facts. Nawab Syed Raunaq Ali's case PLD 1973 SC 236 ref.

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

----Arts. 185(3) & 187---Petition for leave to appeal---Supreme Court declined to exercise its discretionary jurisdiction under Art.185(3) of the Constitution in favour of the petitioner in the peculiar facts and circumstances of the case. Nawab Syed Raunaq Ali's case PLD 1973 SC 236; Noor's case PLD 1973 SC 469; Muhammad Saifullah Khan's case PLD 1989 SC 166 and Ch. Zahoor Elahi's case PLD 1977 SC 273 ref.Sardar Ahmad Jamal Sukhera, Advocate Supreme Court with Mahniudul Islam, Advocate-on-Record for Petitioners.Nemo.for Respondent.

Date of hearing: 3rd April, 2006.

2006 S C M R 1026

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad and Nasir-ul /Mulk, JJ

CHIEF MANAGER, STATE BANK OF PAKISTAN

and another----Appellants

Versus

Messrs FATIMA ENTERPRISES LTD. and others----Respondents

Civil Appeal No.380 of 2002, decided on 23rd February, 2006.

(On appeal from the judgment of the Lahore High Court, Multan Bench, Multan, dated 3-12-1999 passed in Writ Petition No.9251 of 1999).

Guarantee---

----Bank guarantee---Interest, payment of---Company, in the present case, had applied to the State Bank of Pakistan for cover of foreign exchange risk on the amount payable to a foreign company in foreign currency which was granted---Dispute arose between the Company and the State Bank regarding the rate of foreign exchange for covering the risk---Dispute eventually landed in Supreme Court in which leave was granted and appeal was decided wherein State Bank was directed to calculate the amount payable by the Company and to recover the same from the bank guarantee furnished by the Company---Bank guarantee showed that interest mentioned therein related to the interest that was payable by the Company to the credit supplier on the principal amount and ,not on the facility provided by the State Bank of Pakistan---Second guarantee, which had revalidated the earlier one on the orders of the Supreme Court, did not mention the payment of any interest/mark-up---Order of the Supreme Court in compliance with which Bank guarantee was furnished, was silent regarding payment of interest/mark-up---State Bank of Pakistan, in circumstances, was not entitled to debit to the Bank amount of interest in respect of a guarantee furnished by the Bank on behalf of the Company to cover the differential amount regarding which the dispute had arisen between the State Bank and the Company.State Bank of Pakistan v. Messrs Faisal Spinning Mills Limited 1997 SCMR 1244 distinguished.State Bank of Pakistan v. Messrs Faisal Spinning Mills Limited 1997 SCMR .1244 ref.M. Bilal, Senior Advocate Supreme Court with Ejaz M. Khan, Advocate-on-Record for Appellants.M. Rafiq Rajwana, Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Respondent No.1.Raja M. Akram, Senior Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Respondents Nos.2 and 3.

Date of hearing: 23rd February, 2006.

2006 S C M R 1030

[Supreme Court of Pakistan]

Present: Falak Sher and Syed Jamshed Ali, JJ

Dr. Capt. MUHAMMAD SARWAR SHAHZAD----Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary Health, Lahore and others----Respondents

Civil Petition No.503-L of 2003, decided on 7th December, 2005.

(Against the judgment, dated 3-1-2003 passed by Punjab Service Tribunal, Lahore in Appeal No.46 of 2002).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----Rr. 4(1)(b)(i) & 7-A---Constitution of Pakistan (1973), Art.212(3)---Reduction in rank---Appeal---Petitioner was proceeded against for absence from duty on nine occasions which culminated into penalty of 'reduction from BS-19 to BS-18---Appeal filed against reduction order was dismissed by Service Tribunal being barred by time and also holding that three inquiries held against petitioner found him guilty of being an habitual absentee---Petitioner did not respond to show-cause notice and reminders issued to him---Consequently, Authorized Officer submitted case to `Authority' with recommendation for imposition of a major penalty, but Authority ordered de novo proceedings---Validity---Provision empowering Authorized Officer to impose minor penalty, could not be interpreted to exclude a reference to Authority by Authorized Officer---Allegations in second charge-sheet were substantially the same as in first charge-sheet and inquiry on the earlier charge-sheet having not been concluded, no prejudice could be said to have been caused to the petitioner---No principle of law could be pressed into service to invalidate inquiry on basis of second charge-sheet---Regarding quantum of penalty, no cause for interference was made out in view of petitioner's habitual absence, his conduct and nature of duties--Petition for leave to appeal was dismissed.Pervaiz Inayat Malik, Advocate Supreme Court with Tanvir Ahmad, Advocate-en-Record for Petitioner.Nemo for. Respondents.

Date of hearing: 7th December, 2005.

2006SCMR1032

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan and Saiyed Jamshed Ali, JJ

Ch. SHAHBAZ BABAR----Appellant

Versus

Mrs. REHMANA MIRZA----Respondent

Civil Appeal No.305 of 2003, decided on 4th April, 2006.

(On appeal from the judgment/order, dated 14-3-2003 passed by Lahore High Court, Lahore in S.A.O. No.62 of 2001).

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

----S. 13---Constitution of Pakistan (1973), Art.185(3)---Non-residential property---Landlady sought ejectment of tenant for bona fide need of her husband---Leave to appeal was granted to examine whether in view of deliberate omission of the word "husband" in S.13, West Pakistan Urban Rent Restriction Ordinance, 1959, the eviction orders could be passed for his bona fide need in the facts of the case.

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

---S. 13(3)(a)(ii)(a)---Ejectment of tenant from non-residential property sought by the landlady for bona fide use of her husband---Validity---Landlady could seek the ejectment of the tenant from a commercial premises if her husband wanted to use the same or where she wanted to use the same along with her husband---Principles.Balabhadra Beharilal v. Premchand Lalchand and others AIR 1953 Nag. 144 and Noor Jehan Bi v. Muhammad Yousaf 2002 SCMR 1933 distinguished.Akbar Hussain v. Zehra Bai 2002 SCMR 789; Noor Jehan Bi v. Muhammad Yousaf 2002 SCMR 1933; Ghulam Mohyuddin v. Mst. Nazir Bibi 1983 SCMR 715; Joginder Pal v. Naval Kishor Behal PLJ 2003 SC (India) 102; Firdous Sabir v. Mushtaq Ahmed Pervaiz 1994 SCMR 355; Muhammad Zaman v. Hasb-un-Nisa 1991 SCMR 1307; Messrs Bombay Corporation v. Mst. Amna Begum 1980 CLC 1628; Adamali Hassanali v. Rubab Bai PLD 1967 Kar. 437; Ghulam Mustafa v. Sharifan Bibi 1982 CLC 1012; Muhammad Fariq v. Shahenshah Jehan Begum PLD 1987 Kar. 180; Firdous Begum v. M. Siraj and Brothers 1988 CLC 802; Dr. S. Hussain v. Masiha Begum 1992 CLC 1292; Waheeda Khanum v. Ghulam Hussain PLD 1993 Kar. 171; Feroz Ahmed v. Kaley Khan 1995 MLD 827; Zuhra Begum v. Pakistan State Oil Co. Ltd. PLD 1995 Kar. 237; K.H. Hiramanek v. Shafqat Aslam 1997 MLD 1800; Ayub Khan v, Fazal Haq PLD 1976 SC 442; Muhammad Saleh v. Muhammad Shafi 1982 SCMR 33; Abdul Majid v. Azhar Ali Shah PLD 1985 SC 191; Muhammad Yaqoob v. Additional District Judge PLD 1991 SC 1013; Suhail Printing Press v. Aley Eba Zaidi 2005 SCMR 882 and Khadim Mohyuddin v. Remat Ali PLD 1965 SC 459 ref.Amir Alam Khan, Advocate Supreme Court for Appellant. Pervez Inayat Malik, Advocate.Supreme Court for Respondent.

Date of hearing: 4th April, 2006.

2006 S C M R 1039

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Nasir-ul-Mulk, JJ

GHULAM SARWAR KHAN ABDALI and others----Petitioners

Versus

HASSAN MUHAMMAD----Respondent

Civil Petition No.1184-L of 2005, decided on 12th April, 2006.

(On appeal from the order, dated 17-5-2005 of the Lahore High Court passed in C.M. No.386 of 2005 in Civil Revision No.1864 of 2001).

Civil Procedure Code (V of 1908)---

----S. 115---Constitution of Pakistan (1973), Art.185(3)---Revision---Dismissal of revision for non-prosecution---Restoration---Sufficient grounds---Petitioners sought restoration which application was dismissed both by the Trial Court and High Court---Contention of the petitioners was that revision was admitted to regular hearing by a different Judge of the High Court and the said Judge was not available during the days when the case was fixed and dismissed for non-prosecution; that the petitioners remained under the impression that the said Judge was not available and that revision would not be fixed during his absence; that additionally the petitioners had taken brief from the counsel who represented them in the revision and the said counsel remained under the impression that he was no longer their counsel and thus he did not appear on the relevant date and because of such facts absence of petitioners was not intentional but on account of misconception beyond their control---Validity---Held, there was nothing in the High Court Rules or in the "admitting note" of the revision that revision shall be fixed before the same Judge who had admitted revision---Petitioners remained under a misconception not recognized in law and so far as non-appearance of the petitioner's counsel under the impression that the brief having been taken away by the petitioners he was no longer their counsel, was concerned, the same was not a sufficient ground---Petition for leave to appeal was dismissed.

Parvez Inayat Malik, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioners.

Syed Haider Ali Shah, Advocate Supreme Court and Mahmud­ul-Islam, Advocate-on-Record for Respondents.

Date of hearing: 12th April, 2004.

2006 S C M R 1041

[Supreme Court of Pakistan]

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

Mst. HUSNA SAADAT----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.291 of 2005, decided on 5th April, 2006.

(On appeal from the judgment, dated 24-2-2005 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeal No.401 of 2003).

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

----S. 9---Reappraisal of evidence---Sentence, reduction in---Recovery of 9.5 kilogram Charas---Carrier---Quantum of sentence---Accused lady was convicted for transporting Charas weighing 9.5 kilogram and was sentenced to ten years' imprisonment---Validity---Prosecution examined adequate number of witnesses to prove the recovery, which was further re-enforced by the physical apprehension of the accused on the spot---Report of Chemical Examiner established the material to be contraband Charas---Supreme Court did not find any reason to set aside the conviction but sentence was reduced as the accused was a carrier and' the material involved was neither heroin nor opium---Supreme Court reduced the sentence of ten years to eight years imprisonment---Appeal was allowed.

Hafiz S.A. Rehman, Advocate Supreme Court for Petitioner.

M. Zaman Bhatti, Advocate Supreme Court for Respondent.

Date of hearing: 5th April, 2006.

2006 S C M R 1042

[Shariat Appellate Jurisdiction]

Present: Justice Abdul Hameed Dogar, Chairman Justices Mian Shakirullah Jan, Raja Fayyaz Ahmed, Dr. Allama Khalid Mahmood and Dr. Rashid Ahmad Jullundhari, Members

FAYYAZ alias FAYYAZI and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.22(S) of 2004, decided on 2nd December, 2005.

(On appeal from the judgment, dated 27-5-2004 of the Federal Shariat Court, at Lahore passed in Criminal Appeal No.224/L of 2003) .

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S. 12---Penal Code (XLV of 1860), Ss. 337-F(i)/377/34---Re­appraisal of evidence---Sentence---Sodomy---Solitary statement of victim---Both the accused committed sodomy with the victim aged about 10 years, when he was returning from school---Trial Court disbelieved the evidence of prosecution witnesses but convicted both the accused on the evidence of victim supported by medical evidence and awarded sentence of ten years' imprisonment---Federal Shariat Court maintained the conviction of Trial Court but reduced the sentence from ten years to seven years---Validity---Conviction could be based on the solitary statement of victim provided the same was capable to implicit reliance and was corroborated by any other piece of evidence, if so available in the case---Victim of the offence, at the time of commission of offence was aged about ten years, who did not carry any ill-will, grudge or malice against the accused to falsely implicate them in the case---Both the accused did not dispute or challenge during trial that the victim was school going---Victim in his deposition before Trial Court stated that after attending school, he was on his way back for home through pavement, where wheat crop was standing, both the accused ambushed him; firstly one accused caught hold of his arms while other accused committed sodomy upon him and thereafter the other caught hold of him and the first accused committed sodomy---Victim also stated that the accused were armed with a pistol and threatened him of serious consequences---Testimony of victim could not be impeached or discredited though he was subjected to test of cross-examination---Medical officer admitted before Trial Court that he medically examined the victim aged about 10 years, who was brought by a police constable as a case of sexual assault---Victim was allegedly subjected to unnatural lust and the matter was promptly reported to police---Entire evidence was scrutinized and appraised by Federal Shariat Court in its true perspective in view of well-settled principles of criminal administration of justice to which no exception could be taken---Supreme Court declined to interfere with the conviction and sentence passed by Federal Shariat Court---Appeal was dismissed.

Naseer Ahmad alias Nasro v. State 2004 PCr.LJ 1769 and Muhammad Akram and another v. The State 1995 MLD 950 distinguished.

A.G. Tariq, Advocate Supreme Court for Appellants.

Muhammad Zaman Bhatti, Advocate Supreme Court for the State.

Date of hearing: 2nd December, 2005.

2006 S C M R 1051

[Supreme Court of Pakistan]

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

WARIS KHAN and 2 others----Petitioners

Versus

THE STATE----Respondent

Jail Petition No.307 of 2005, decided on 5th April, 2006.

(On appeal from the judgment, dated 25-1-2005 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Criminal Appeal No.134 of 2002).

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

----S. 9(c)---Reappraisal of evidence---Sentence, reduction in---Chemical examination---Failure to send samples from each packet containing narcotics---Effect---Both the accused were convicted for transporting and possessing 48 kilogram of Charas and 1.2 kilogram opium and sentenced to life imprisonment and fine---Conviction and sentence awarded by Trial Court was upheld by High Court---Plea raised by accused was that out of 48 packets of Charas only one packet was sent for chemical examination---Validity---Admittedly only one packet of Charas and one packet of opium was sent to Chemical Examiner for the purpose of analysis and to that effect, the report was positive---Effect of omission and inefficiency of the officer concerned was that only a small amount of alleged total was proved to be Charas and opium---Supreme Court maintained the conviction but reduced the sentence from imprisonment for life to ten years and also fine from Rupees one million each to Rupees two hundred thousand.Rafaqat Hussain Shah, Advocate Supreme Court for Petitioners. M. Zaman Bhatti, Advocate Supreme Court for the State.

Date of hearing: 5th April, 2006.

2006 S C M R 1053

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Khalil-ur-Rehman Ramday

and Faqir Muhammad Khokhar, JJ

GHULAM MUHAMMAD through L.Rs. and others---Petitioners

Versus

AZIZ MUHAMMAD through L.Rs. and others---Respondents

Civil Petition No.1248-L of 2000, decided on 22nd June, 2004.

(On appeal from judgment dated 8-5-2000 and the Lahore High Court, Multan Bench, passed in R.S.A. No.1010 of 1978).

Specific Relief Act (I of 1877)---

----S. 42---Declaration of title---Alienation by person having general power of attorney---Grievance of plaintiff was that disputed land was transferred in his favour by general attorney of the owner---Trial Court dismissed the suit but Appellate Court decreed the same---High Court in second appeal restored the judgment passed by Trial Court---Validity---Sale of land by general attorney in favour of plaintiff through mutation seemed to have been validly made---Trial Court as well as High Court had misread material evidence on record---Supreme Court converted petition for leave to appeal into appeal and set aside the judgment passed by High Court and that of Lower Appellate Court was restored---Appeal was allowed.Zafar Iqbal Ch. Advocate Supreme Court and Tanvir Ahmed Advocate-on-Record for Petitioners.Mian Allah Nawaz, Advocate Supreme Court and Mir Muhammad Aslam Ch. Advocate-on-Record for Respondent No.1.Nemo for Respondents Nos.2 to 22.

Date of hearing: 22nd June, 2004.

2006 S C M R 1056

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Khalil-ur-Rehman Ramday, JJ

MUHAMMAD IQBAL---Petitioner

Versus

HAQ NAWAZ and another---Respondents

Criminal Petition for Leave to Appeal No.462 of 2003, decided on 18th March, 2004.

(On appeal from the judgment/order of the Lahore High Court, Lahore, dated 11-9-2001, passed in Criminal Appeal No.122-of 1997).

Penal Code (XLV of 1860)---

----S. 337-F(v)---Criminal Procedure Code (V of 1898), 5.345---Constitution of Pakistan (1973), Art.185(3)---Compromise---Sessions Judge had reported that the compromise effected between the parties was genuine without any coercion, threat or pressure---Injured had also stated before the Supreme Court that he had entered into a compromise with the accused without any compulsion---Parties had settled their matter willingly through a compromise which was accepted---Petition for leave to appeal was converted into appeal and allowed in circumstances---Accused was acquitted accordingly.Ch. Muhammad Akram, Advocate-on-Record for Petitioner. M. Zaman Bhatti, Advocate Supreme Court for the State. Respondent No.1 in person.

Date of hearing: 18th March, 2003.

2006 S C M R 1059

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Iftikhar Muhammad Chaudhry

and Rana Bhagwandas, JJ

NATIONAL TANKER COMPANY (PVT.) LIMITED and another---Appellants

Versus

FEDERAL GOVERNMENT OF PAKISTAN---Respondent

Civil Appeal No.1231 of 1998, decided on 10th December, 2003.

(On appeal from the judgment of High Court of Sindh, Karachi, dated 3-3-1998 passed in C.P. No.639 of 1995).

Companies Profits (Workers' Participation) Act (XII of 1968)---

----S. 3 & Sched., para. 4(d)---Workers Welfare Fund---Profits---Board of Trustee, non-establishment of---Petitioner company was neither granted refund of Workers Welfare Fund, nor profit on the same---Validity---High Court was justified in law in not granting the relief of refund of the amount on account of non-compliance of the provisions as to constitution of the Board of Trustees and intimation of their names to the Government and other formalities---Amount and profit on the amount was to be paid to the workers of the company after compliance with the provisions of Companies Profits (Workers' Participation) Act, 1968---Judgment passed by High Court in exercise of Constitutional jurisdiction was modified to the extent that the profit on the Fund would be given to the Board of Trustees for distribution to the workers in compliance of the provisions of Companies Profits (Workers' Participation) Act, 1968---Appeal was allowed accordingly.Syed Haider Ali Pirzada, Advocate Supreme Court for Appellants.Mrs. Naheeda Mehboob Ellahi, Standing Counsel with Chaudhry Akhtar Ali, Advocate-on-Record for Respondent.

Date of hearing: 10th December, 2003.

2006SCMR1061

[Supreme Court of Pakistan]

Present: Rana Bluagwandas and Muhammad Nawaz Abbasi, JJ

KARAM RASOOL---Petitioner

Versus

TOWN COMMITTEE, ZAFARWAL and others--Respondents

Civil Petition Leave to Appeal 'No.627-L of 2001, decided on 30th August, 2004.

(On appeal from judgment of Lahore High Court, Lahore dated 17-11-2000 passed in S.A.O.No.148 of 1993).

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

----S. 13---Civil Procedure Code (V of 1908), S.9---Constitution of Pakistan (1973), Arf.185(3)---Ejectment of tenant---Title of premises, deciding of---Jurisdiction of Rent Controller---Tenant denied existence of relationship of landlord and tenant between the parties---High Court remanded the matter to Civil Court for determination of the title---Bone of contention between the parties was demarcation of land in occupation of tenant in which landlord was claiming that the same had been transferred to him validly, whereas Town Committee claimed to be the owner of that land---Validity---Question of title could be resolved by Civil Court, which was a Court of ultimate jurisdiction and not in ejectment proceedings under the provisions of West Pakistan Urban Rent Restriction Ordinance, 1959---Supreme Court declined to interfere in the order passed by High Court---Leave to appeal was refused.Rehmatullah v. Ali Muhammad 1983 SCMR 1064 ref.Tariq Masood, Advocate Supreme Court and Tanvir Ahmad Advocate-on-Record for Petitioner.Mian Sarfrazul Hassan, Advocate Supreme Court, C.M. Latif Advocate-on-Record and M. Zahid Ghori, T.M.O. Narowal for Respondents Nos. 1 and 2.Nemo for Respondent No.3.Ghulam Sabir Kaifi, Advocate Supreme Court for Respondent No.4.Raja Abdur Rehman, Assistant Advocate-General, Punjab on Court Notice.

Date of hearing: 30th August, 2004.

2006 S C M R 1064

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Faqir Muhammad Khokhar, JJ

UMAR HAYAT and another---Petitioners

Versus

MADHU LAL HUSSAIN and others---Respondents

Civil Petitions Nos. 1777 and 1948-L of 2002, decided on 19th February, 2003.

(On appeal from the judgment/order, dated 28-3-2002 passed by Lahore High Court, Lahore in Civil Revisions Nos.1478 and 1845 of 2000) .

Specific Relief Act (I of 1877)---

----S. 42---West Pakistan Land Revenue Act (XVII of 1967), S.42---Constitution of Pakistan (1973), Art.185(3)---Mutation, sanction of---Concurrent findings of fact by Courts below---Plaintiff asserted that disputed mutation was a result of fraud---Lambardar admitted in affidavit that he had not identified the owner at the time of attestation of disputed' mutation---Judgment and decree passed by Appellate Court in favour of plaintiff was maintained by High Court---Validity---Signatures of the owner of land were obtained on the disputed mutation as well as Roznamcha Waqyati contrary to the provisions of S.42 of West Pakistan Land Revenue Act, 1967, therefore, no reliance could be placed on the same---Question of fact had been set at naught by High Court after taking into consideration the material available on record---No case was made out for interference by Supreme Court in exercise of jurisdiction under Art.185(3) of the Constitution, in the judgment passed by High Court---Leave to appeal was refused.Chaudhry Riyasat Ali, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record for Petitioners (in C.P. No.1777-L of 2002).Ali Akbar Qureshi, Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-Record for Petitioners (in C.P. No.1948-L/2002).Nemo for Respondents (in both cases).

Date of hearing: 19th February, 2003.

2006 S C M R 1067

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

ZAHOOR HUSSAIN---Petitioner

Versus

Ch. NIAZ ALI and another---Respondents

Civil Petition for Leave to Appeal No.640/L of 2000, decided on 6th March, 2003.

(On appeal from the order, dated 13-1-2000 of the Lahore High Court, Multan Bench, Multan, passed upon C.M. No.190/1998 in Writ Petition No.5857 of 1995).

Constitution of Pakistan (1973)---

----Arts. 185(3) & 199---Civil Procedure Code (V of 1908), 0.I, R.10---Constitutional petition before High Court---Impleading as necessary party---Suit property was mutated in the name of petitioner but High Court refused to implead him as party to the proceedings---Validity---As the disputed property was mutated in the name of the petitioner, it would be in the interest of justice that the petitioner be impleaded so as to avoid multiplicity of litigation which would follow in case of decision of main Constitutional petition pending adjudication before High Court---Petition for leave to appeal was converted into appeal and order passed by High Court was set aside---Appeal was allowed.Riyasat Ali Chaudhry, Advocate Supreme Court with Mahmood A. Qureshi, Advocate-on-Record for Petitioner.Ozair Ahmed Chughtai, Advocate-on-Record for Respondent No.l.

Date of hearing: 6th March, 2003.

2006 S C M R 1068

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Mian Muhammad Ajmal, JJ

BARKAT MASIH---Petitioner

Versus

MANZOOR AHMAD (deceased) through L.Rs.---Respondents

Civil Petition No.1704-L of 2002, decided on 20th February, 2004.

(On appeal from the judgment/order, dated 19-4-2002 passed by Lahore High Court, Lahore in W.P. No.1407/1986).

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

----S. 13---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan (1973), Art.185(3)---Ejectment of tenant---Declaratory suit, pendency of---Recovery of possession---Procedure---Relationship of landlord and tenant was denied by the tenant and civil suit for determination of rights of the parties was pending---Rent Controller passed eviction order which was maintained upto High Court---Plea raised by the tenant was that till the decision of civil suit, his possession could not be disturbed and he could not be ejected---Validity---If a tenant denies the proprietary rights of the landlord then he is bound to first deliver the possession of premises in question and then to contest his proprietary rights in the property and if ultimately he succeeds in getting relief from the Court and decree passed in his favour, only then he can enforce the same according to law with all its consequences---Leave to appeal was refused.Rehmatullah v. Ali Muhammad and another 1983 SCMR 1064 ref.Ch. Muhammad Bakhsh, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Petitioner.Sh. Anwar-ul-Haq, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Respondents.

Date of hearing: 20th February, 2004.

2006 SCMR1071

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Faqir Muhammad Khokhar, JJ

HABIB BANK LTD. and another---Petitioners

Versus

NAZIR KHAN and 11 others---Respondents

Civil Petitions Nos,1050-K/2002 and 1925 to 1935 of 2002, decided on 14th April, 2004.

(On appeal from the judgment dated 9-9-2002 of the Federal Service Tribunal, passed in Appeals Nos.1328(K)/1998, 506(K) to 509(K)/1997, 531(K)/1997, 614(K)/1997, 2369(K)/1997, 504(K)/1998, 505(K)/1998, 1327(K)/1998 and 1775(K)/1998).

Service Tribunals Act (LXX of 1973)---

----S. 2-A---Constitution of Pakistan (1973), Art.185(3)---Bank employees---Termination of service---Review / recalling of judgment. by Service Tribunal---Jurisdiction---Appeals filed by employees before Service Tribunal were earlier dismissed being barred by limitation---Later on in the light of judgment passed by Supreme Court in case titled Syed Aftab Ahmed vs. K.E.S.C., reported as 1999 SCMR 197, Service Tribunal recalled its earlier order and restored the appeals filed by the employees---Validity---Leave to appeal was granted by Supreme Court to consider; whether provisions of S.2-A of Service Tribunals Act, 1973, could be invoked so as to reopen the past and closed transaction and to permit the employees to re-agitate their grievance in respect of terms and conditions of service which had already been finally adjudicated upon by the proper forum under the existing laws; and whether Service Tribunal was empowered under the provisions of Service Tribunals Act, 1973, to recall/review its earlier final judgments.Syed Aftab Ahmed v. K.E.S.C. and others 1999 SCMR 197 rel.Shahid Anwar Bajwa, Advocate Supreme Court for Petitioners (in C.P. No.1050-K of 2002).Raja Muhammad Akram, Advocate Supreme Court for Petitioners (in C.Ps. Nos.1925 to 1935 of 2002).Respondent in person (in C.P. No.1925 of 2002).

Date of hearing: 14th April, 2004.

2006 SCMR 1073

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Falak Sher, JJ

QURBAN ALI and another---Petitioners

Versus

COMMISSIONER and another---Respondents

Civil Petition No.2474-L of 2003, decided on 8th July, 2004.

(On appeal from the order dated 19-9-2003 passed by the Lahore High Court, Multan Bench in Writ Petition No.4751 of 1993).

West Pakistan Land Revenue Rules, 1968---

---Rr. 67-A & 67-B---Forcible wrongful dispossession---Provisions of Rr.67-A & 67-B of West Pakistan Land Revenue Rules, 1968---Applicability---Factual controversy---Constitutional petition before High Court---Maintainability---Predecessor-in-interest of petitioners was wrongfully dispossessed from disputed land and Revenue Authorities passed an order in his favour---Respondents, instead of assailing that order before Revenue Authorities, had filed civil suit which was subsequently withdrawn---Later on the respondents filed Constitutional petition before High Court against that order which was allowed and order passed by Revenue Authorities in favour of predecessor-in-interest of petitioners was set aside---Validity---Constitutional petition, in view of factual controversy, was not maintainable---Case not being that of demarcation or eviction of a person in unauthorized possession provisions of Rr.67-A & 67-B of West Pakistan Land Revenue Rules, 1968, were not applicable---Supreme Court converted petition for leave to appeal into appeal and set aside the judgment passed by High Court---Appeal was allowed.Abdur Rashid Qureshi, Advocate Supreme Court for Petitioners.Yasin Chughtai, Advocate Supreme Court and A.H. Masood, Advocate-on-Record for Respondents Nos.6 to 10.

Date of hearing: 8th July, 2004.

2006 S C M R 1074

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas

and Sardar Muhammad Raza Khan, JJ

ALI KHAN---Petitioner

Versus

THE STATE---Respondent

Jail Petition No.107 of 2003, decided on 19th April, 2004.

(On appeal from the judgment dated 26-4-2003 of the High Court of Balochistan Quetta Sibi Bench passed in Sessions Case No.13 of 2000).

Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), 5.345---Constitution of Pakistan (1973), Art.l85(3)---Compromise'--Inquiry held

by the Sessions Judge revealed that the legal heirs of the deceased had entered into compromise with the accused with their free consent and the compromise deed had been rightly executed---Permission was accorded by Supreme Court to the parties to enter into the compromise as a result whereof the compromise was accepted and the accused was acquitted accordingly.M. Zaman Bhatti, Advocate Supreme Court for Petitioner. Nemo for the State.

Date of hearing: 19th April, 2004.

2006 S C M R 1076

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Hamid Ali Mirza and Faqir Muhammad Khokhar, JJ

Syed MUFEED SHAH and another:--Petitioners

Versus

PRINCIPAL, KHYBER MEDICAL COLLEGE, PESHAWAR and others-Respondents

Civil Petition No. 674 of 2003, decided on 11th February, 2004.

(On appeal from the judgment dated 27-3-2003 of the Peshawar High Court, Peshawar, passed in Writ Petition No.308 of 2003).

Pakistan Medical and Dental Council Ordinance (XXXII of 1962)---

----S. 33---North-West Frontier Province Medical Colleges, Prospectus, 1999-2000, condition No.16---Constitution of Pakistan (1973), Art.185(3)---Educational institution---Substituting policy decision---Jurisdiction of Supreme Court---First Professional Examination of M.B.,B.S.---Failure to pass the examination in three chances---Candidates failed to pass the examination in three chances and their names were struck off the roll---Decision made by the authorities was maintained by High Court in exercise of Constitutional jurisdiction---Contention of the candidates was that they had not been given fourth chance to appear in M.B.,B.S. First Professional Examination---Validity---Candidates failed to point out any discriminatory treatment meted out to them qua other students of North-West Frontier Province which were similarly placed---North-West Frontier Province Government by a policy decision followed the Regulations made by the Council under S.33 of Pakistan Medical and Dental Council Ordinance, 1962---Supreme Court could not substitute the policy decision taken by the North-West Frontier Province Government which was neither arbitrary nor unreasonable---Eligibility of the student under condition No.16 of North-West Frontier Province Medical Colleges, Prospectus, 1999-2000 for examination, was that any student who would fail to clear First Professional M.B.,B.S. Part II examination in three chances availed or un-availed would cease to become eligible for further medical education in Pakistan---Judgment' passed by High Court in Constitutional jurisdiction did not suffer from any legal infirmity so as to warrant interference by Supreme Court---Leave to appeal was refused.Ali Yousaf and another . Chairman of Academic Council and Principal, Dow Medical College; Karachi and others 2000 SCMR 1222, Ms. Fabiha Parvez v. Peoples Medical College for Girls; Nawabshah and others PLD 1999 Karachi 394 and Akhtar Ali Javed v. Principal Quaid-I-Azam Medical College, Bahawalpur 1994 SCMR 532. rel.Miss Sakina Begum v. The Selection Committee for Bolan Medical College, Quetta 1995 SCMR 334; Chairman Selection Committee/Principal King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmed and another 1997 SCMR 15; University of the Punjab and another v. Mst. Samea Zafar Cheema and 4 others 2001 SCMR 1506; Syed Mufeed Shah v. Principal Khyber Medical College, Peshawar and 4 others 2003 CLC 1348; Saleem Akbar and 4 others v. Principal and Chairman Joint Admission Committee, Khyber Medical College, Peshawar and 4 others 2002 CLC 338; Syed Khurram Rizvi v. The Principal Baqai Medical College, Karachi and 3 others 1999 CLC 1692 and Shahid Ali v. Karachi University through Vice-Chancellor and 3 others 1998 CLC 1449 ref.Barrister Masood Kausar, Advocate Supreme Court for Petitioners.Jehanzeb Rahim, A.-G., N.-W.F.P. for Respondents.

Date of hearing: 11th February, 2004.

2006 S C M R 1079

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Falak Sher, JJ

WALI-UR-REHMAN and others---Petitioners

Versus

STATE LIFE INSURANCE CORPORATION and others---Respondents

Civil Petitions Nos.442-L, 445-L, 446-L, 467-L to 475-L and 535-L of 2004, decided on 30th July, 2004.

(On appeal against the judgment, dated 10-12-2003 passed by

the Federal Service Tribunal, Lahore, in Appeals Nos.288, 290, 292, 295 to 298, 301 to 304(L)/CE of 2002 and 49 and 50(L)CE of 2003).

Service Tribunals Act (LXX of 1973)---

---Ss. 2-A & 4---Constitution of Pakistan (1973), Art.212(3)---Benefit of restructured pay scale---Principle of approbate and reprobate---Applicability---Extending such benefits to employees who had exercised their options of Voluntary Retirement Separation Scheme---Grievance of employees was that after their voluntary retirement, the employer-Corporation revised the pay scale with effect from the date when they were in service---Service Tribunal dismissed their appeals and declined to grant them the benefit---Validity---Employees before their retirement had given undertakings, therefore, they were estopped under the law to put up any claim of whatsoever nature against the employer-Corporation in respect of monetory gains' in view of revised pay scales---Employees, after having voluntarily accepting premature retirement, could not be allowed to approbate and reprobate on the ground that after severing connection with the employer-Corporation, it had granted further monitory benefits to its employees---Such retired employees legitimately could not claim monetory benefits which Corporation was extending to its employees from time to time, depending upon changed circumstances, due to efflux of time---Retired employees were estopped by their conduct to claim the benefit of revised pay scales in view of the binding undertaking which they had furnished at the time of accepting extra benefits on their premature retirement---Supreme Court declined to interfere in the judgment passed by Service Tribunal---Leave to appeal was refused.State Bank Employees' case Civil Petition No.12 of 2001 distinguished.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.

2006 S C M R 1082

[Supreme Court of Pakistan]

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

Civil Appeal No.493 of 2000

MUHAMMAD RASHEED---Appellant

Versus

GOVERNMENT OF PUNJAB and others--Respondents

.

(On appeal from judgment of Lahore High Court, Lahore, dated

27-9-1999 passed in I.C.A. No.680 of 1999).

Civil Appeal No.494 of 2000

MUHAMMAD ISMAIL---Appellant

Versus

GOVERNMENT OF PUNJAB and another---Respondents

(On appeal from judgment of Lahore High Court, Lahore, dated 27-9-1999 passed in I.C.A. No.684 of 1999).

Civil Appeal No.495 of 2000

HAMID MEHMOOD---Appellant

Versus

GOVERNMENT OF PUNJAB and others---Respondents

(On appeal from judgment of Lahore High Court, Lahore, dated 27-9-1999 passed in I.C.A. No.590 of 1999).

Civil Appeal No.496 of 2000

GHULAM MURTAZA and others---Appellants

Versus

GOVERNMENT OF PUNJAB and others--Respondents

(On appeal from judgment of Lahore High Court, Lahore, dated 27-9-1999 passed in I.C.A. No.59 of 1999).

Civil Appeal No.497 of 2000

SHAFAQAT MAHMOOD---Appellant

Versus

GOVERNMENT OF PUNJAB and another---Respondents

(On appeal from judgment of Lahore High Court, Lahore, dated 27-9-1999 passed in I.C.A. No.605 of 1999).

Civil Appeal No.498 of 2000

Malik IRSHAD AHMAD---Appellant

Versus

GOVERNMENT OF PUNJAB and another---Respondents

(On appeal from judgment of Lahore High Court, Lahore, dated 27-9-1999 passed in I.C.A. No.607 of 1999).Civil Appeals Nos.493 to 498 of 2000, decided on 20th April, 2004.

Constitution of Pakistan (1973)---

----Art. 212(3)---Petition for leave to appeal---Principle of consistency---Applicability---Appellants were selected for appointment by Education Department but appointment letters were withheld due to ban placed by Provincial Government on recruitments---Similar petitions for leave to appeal had already been converted into appeal and were allowed by Supreme Court---Effect---Cases of the present appellants were not in any manner different from the cases which had already been decided by Supreme Court---Following the same reasons, the Department was directed to issue appointment letters of the appellants for the posts against which they were selected---Appeal was allowed. Civil Appeals Nos.21, 22, 770 to 780 of 1999 fol.Abdul Wahid Chaudhry, Advocate Supreme Court for Appellants (in C.A.No.493 of 2000).Nemo for Appellant (in C.A. No.495 of 2000)Hafiz Abdur Rehman Ansari, Advocate Supreme Court for Appellants (in C.As. Nos.494, 496 to 498 of 2000).Mrs. Afshan Ghazanfar, Assistant Advocate-General, Punjab, Amanullah, Assistant Manager, Directorate of Colleges, Lahore for Respondents (in all appeals).

Date of hearing: 20th April, 2004.

2006 S C M R 1087

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah, Khalil-ur-Rehman Ramday and Fatak Sher, JJ

SHAHID ABBAS---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.767-L of 2002, decided on 30th April, 2004.

(On appeal from the judgment dated 4-7-2002 passed by the Lahore High Court, Lahore in Criminal Appeal No.1871 of 2000 and Murder Reference No.16-T of 2000).

Penal Code (XLV of 1860)---

----Ss. 302(b)/34, 324/34 & 393---Constitution of Pakistan (1973), Art.l85(3)---Accused had assailed legality of his conviction and sentence, while the State had sought enhancement of the sentence of accused on the capital charge---Leave to appeal was granted by Supreme Court in both the cases for reappraisal of entire evidence for safe administration of justice.Muhammad Munir Peracha, Advocate Supreme Court for Petitioner.Muhammad Zaman Bhatti, Advocate Supreme Court for Respondent.

Date of hearing: 30th April, 2004.

2006 S C M R 1089

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Actg. C.J., Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

TEHSIL MUNICIPAL ADMINISTRATION, HAFIZABAD---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary, Local Government and Rural Department, Lahore and others---Respondents

Civil Petition No.3241-L of 2004, decided on 25th January, 2005.

(On appeal from the Order dated 12-11-2004 of the Lahore High Court, Lahore, passed in Writ Petition No.11121 .of 2004).

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

--- S. 127(3)---Constitution of Pakistan (1973), Art.185(3)---Holding of cattle market---Jurisdiction of Secretary Local Government---Dispute - between the parties was with regard to holding of cattle market---Contention of petitioner was that Tehsil Municipal Administration was an independent authority, therefore, Secretary, Local Government had no jurisdiction to dictate that it should not hold cattle market on Wednesday---Validity---Secretary, Local Government was required to supervise the functions of Local Councils, therefore, the guidelines which had been issued by Provincial Government for holding of cattle markets had got binding effect---Secretary, Local Government having issued order strictly in accordance with the guidelines, High Court had rightly not interfered itt his order---Leave to appeal was refused.Dr. A. Basit, Senior Advocate Supreme Court for Petitioner.Asadullah Siddiqui, Advocate Supreme Court, Sh. Salahuddin Advocate-on-Record and Muhammad Hanif Khatana, Advocate-General Punjab for Respondents.Dr. M. Muhiuddin Qazi, Advocate Supreme Court on Court's Notice.

Date of hearing: 25th January, 2005.

2006 S C M R 1091

[Supreme Court of Pakistan]

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

MEHRBAN KHAN---Appellant

Versus, GHULAM MURTAZA and others---Respondents

Criminal Appeal No. 171 of 2003, decided on 29th April, 2004.

(On appeal from Order of Lahore High Court, Rawalpindi

Bench, Rawalpindi, dated 27-12-2002 passed in Criminal Appeal No.203 .of 1997).

Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan, (1973), Art.185(3)---Complainant had sought enhancement of sentence of accused from imprisonment for life to death---Accused had already undergone sentence under S.302. P.P.C. as such appeal for enhancement of his sentence had become infructuous---Cases pending on the file of Supreme Court were to be decided according to law already laid down and matters could not be kept pending. till the decision of the larger Bench---Appeal was disposed of as having become infructuous accordingly.Bahadur Ali v. State 2002 SCMR 93 and 2002 SCMR 93 ref.Sardar Muhammad Ishaq, Senior Advocate Supreme Court' for Appellant.Rab Nawaz Noon, Senior Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondents.Shahid Saleem, Superintendent Jail, Rawalpindi on Court Notice.Muhammad Zaman Bhatti, Advocate Supreme Court for the State.

Date of hearing: 29th April, 2004.

2006 S C M R 1096

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Mian Muhammad Ajmal and Khalil-ur-Rehman Ramday, JJ

MUNIR HUSSAIN SHAH---Petitioner

Versus

SECRETARY, PROVINCIAL ASSEMBLY, PUNJAB LAHORE and another---Respondents

Civil Petition No.3566-L of 2002, decided on 19th February, 2004.

(On appeal from the judgment dated 2-9-2002 of the Punjab Service Tribunal, Lahore passed in Appeal No.325 of 2002). .

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

----S. 5---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Rule of consistency---Applicability---Civil servant in the light of third inquiry was dismissed from service and in appeal filed against the order was maintained by Service Tribunal---Plea raised by civil servant was that in two other identical cases, Service Tribunal had remanded the cases to department for de novo inquiry but his appeal was dismissed by Service Tribunal-- Validity---Each case had its own facts and circumstances. and had to be decided on its merits either by Service Tribunal or by Supreme Court---Principle of consistency could only be invoked if there were identical facts and circumstances as well---In the present case position was different as in third inquiry; two charges were different from the charges levelled against other employees whose cases had been remanded for de novo inquiry, as such the principle of consistency was not attracted---Inquiry Officer had opined/recommended against the civil servant on the allegations against him and recommendations made by Inquiry Officer had been accepted by competent Authority---Service Tribunal in exercise of its powers under S.5 of Punjab Service Tribunals Act, 1974, had declined to interfere with the same---Civil servant failed to raise any question of law of public importance warranting interference by Supreme Court---Leave to appeal was refused.Hafiz Tariq Nasim, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate-on-Record for Petitioner.Nemo. for Respondents.

Date of hearing: 19th February, 2004.

2006 S C M R 1098

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Khalil-ur-Rehman Ramday, JJ

MUHAMMAD HIDAYAT alias TAIDI---Petitioner

Versus

THE STATE---Respondent

Criminal Petition for Leave to Appeal No.876/L of 2002 and Jail Petition No.431 of 2002, decided on 28th January, 2003.

(On appeal from the judgment dated 17-10-2002 of the Lahore High Court, Lahore, passed in Criminal Appeal No.106 of 1998 and Murder Reference No.270 of 1998).

Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan (1973), Art.185(3)---F.I.R. had been promptly lodged containing all the details which had established that the same was recorded without any deliberation and free from any false implication---Complainant was corroborated by an injured witness as well as by a independent witness in all material particulars---Ocular testimony of an unimpeachable character inspired confidence which was fully corroborated by medical evidence and the motive---Record did not indicate any mitigating circumstance in favour of accused who had fired a fatal shot from his .12 bore gun on the neck of a young M.A. student---Well-reasoned judgment of High Court did not justify any interference---Conviction and sentence of accused were upheld in circumstances and leave to appeal was refused to him accordingly. Wasi Zafar, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.Nemo for Respondent.

Date of hearing: 28th January, 2003.

2006 S C M R 1102

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Mian Muhammad Ajmal and Khalil-ur-Rehman Ramday, JJ

ZAKI MUHAMMAD and others---Petitioners

Versus

QUDRAT SHER and others---Respondents

Civil Petitions Nos.2940-L, 2948-L and 2949-L of 2000, decided on 17th .' ebruary, 2004.

(On appeal from the judgment dated 15-11-2000 of the Lahore High Court, Multan Bench, Multan, passed in Writ Petitions Nos. 2323, 2324 and 2338 of 1990).

Specific Relief Act (I of 1877)---

----Ss. 12 & 42---Constitution of Pakistan (1973), Art.185(3)---Declaration of title---Observation of High Court under Constitutional jurisdiction---Disputed mutation was assailed by petitioners and High Court while dismissing Constitutional petition observed that suit for specific performance of agreement to sell should have been filed---High Court further observed that the transaction was sham and sale was without consideration---Contention of the petitioners was that they were ready to invoke jurisdiction of civil Court for redressal of their grievances, but the observations made by High Court in the judgment would affect their case on merits---Petitioners wanted Supreme Court to make observation that the Court before whom matter would be placed for decision should dispose of the same independently without being influenced by the observations made by High Court---Validity---If proceedings would be instituted in pursuance of the judgment of the High Court before the Civil Court, such observations should not affect the rnerits of the case in any manner---Petition for leave to appeal was disposed of accordingly. Shaukat Ali Mehr, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners (in all petitions). Muhammad Tahir, Special Attorney for Respondents (in all petitions). Fayyaz Baig, Settlement Clerk, Board of Revenue Office, Dera Ghazi Khan (in C.P. No.2940-L/2000).

Date of hearing: 17th February, 2004.

2006 S C M R 1104

[Supreme Court of Pakistan]

Present: Falak Sher and M. Jared Buttar, JJ

MUHAMMAD YAR---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

C.M.A. No.1607-L of 2004 and Civil Petition No.3451-L of 2004, decided on 28th January, 2005

(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench, dated 30-11-2004 passed in I.C.A. No.77 of 2004).

Constitution of Pakistan (1973)---

----Art. 185(3)---Factual controversy--Concurrent findings of fact by the Courts below---Letter issued by one of the Ministers was assailed by petitioner before High Court in Constitutional jurisdiction---High Court dismissed the Constitutional petition---High Court also dismissed Intra-Court Appeal on the ground that the order was passed in Constitutional petition by High Court after having considered various pros and cons of the matter in issue---Validity---As the Intra-Court Appeal had also been exhaustively dealt with by Division Bench of High Court, therefore, Supreme Court declined to interfere in the judgment and decree passed by the Courts below---Leave to appeal was refused. Ch. Muhammad Abdus Saleem, Senior Advocate Supreme Court and M. Aslam Chaudhry, Advocate-on-Record for Petitioner. Nemo for Respondents.

Date of hearing; 28th January, 2005.

2006 S C M R 1106

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Khalil-ur-Rehman Ramday and Falak Sher, JJ

ABDUL RAUF and others---Appellants

Versus

MEHDI HASSAN and others---Respondents

Criminal Appeals Nos.184 and 185 of 1999, decided on 8th June, 2004.

(On appeal from the judgment dated 23-1-1997 of the Lahore High Court, Lahore passed in Criminal Appeals Nos.539 and 628 of 1993 and Criminal Revision No.449 of 1993).

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

----Ss. 302(b)/34, 337-C,' 337-D & 337-E---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal 'was granted by Supreme Court to ensure fair administration of justice. [

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

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

----Ss. 302(b)/34, 337-C, 337-D & 337-E---Appraisal of evidence---Presence of eye-witnesses who had received fire-arm injuries at the place of occurrence at the relevant time was not open to any doubt---None of the eye-witnesses was shown to have any motive or ill-will to maliciously implicate the accused in the case---Eye-witnesses had corroborated the testimony of the complainant who was himself an injured witness of the occurrence and their evidence had inspired confidence---Injury on the chest of the deceased .had been specifically attributed to accused---Medical evidence had supported the ocular testimony---Accused having taken a special plea of alibi had failed to prove the same on record---Accused who had taken the law into his own hands was an active party to the mounting of a ruthless attack on the complainant party resulting in fire-arm injuries to six persons out of whom one had lost his life and he did not deserve any leniency---Convictions and sentences of accused including the sentence of death were upheld in circumstances.

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

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

----Ss. 302(b)/34, 337-C, 337-D & 337-E---Appraisal of evidence---None of the eye-witnesses including the complainant had any reason whatsoever to falsely involve the accused in the occurrence, as none of them had any enmity or motive to maliciously rope the accused therein---Eye-witnesses were independent witnesses and the fact that none of them had burdened the accused with any specific overt act had supported their truthfulness, but this. by itself was not sufficient to exonerate him of the liability incurred by him in view of the provisions of S.34, P.P.C. and S.149, P.P.C.---Accused was proved on record to have come to the place of occurrence armed with a fire-arm weapon in furtherance of the common intention of the other accused persons, but he had not caused any injury to any member of the complainant party---Sentence of imprisonment for life as found befitting for him by the two Courts below, therefore, was not open to any serious exception---Convictions and sentences of accused were maintained in circumstances.

Per Iftikhar Muhammad Chaudhry, J. disagreeing with Khalil-ur-Rehman

Ramday, J.---[Minority view]---

Penal Code (XLV of 186.0)---

----Ss.302(b)/34, 337-C, 337-D & 337-E---Appraisal of evidence. Shahzado v. The State PLD 1977 SC 413; Yar Muhammad and others v. The State 1992 SCMR 96; Muhammad Ilyas v. The State 1993 SCMR 1602; Mazhar Mir v. The State 1991 PCr.LJ 454; Pir Bakhsh v. The State 1981 SCMR 1121(2) and Muhammad Nawaz v. The State 1984 SCMR 190 ref.

Penal Code (XLV of 1860)---

----Ss. 302(b)/34, 337-C, 337-D & 337-E---Appreciation of evidence---Where a witness has not deposed the whole truth, his statement requires close scrutiny and corroboration from independent source. Shahzado v. The State PLD 1977 SC 413; Yar Muhammad and others v. The State 1992 SCMR 96 ref.

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

----Ss. 302(b)/34, 337-C, 337-D & 337-E---Appreciation of evidence---One piece of tainted evidence cannot corroborate another piece of tainted evidence. Muhammad Ilyas v. The State 1993 SCMR 1602 ref. Muhammad Akram Sheikh, Senior Advocate Supreme Court and Muhammad Aslam Ch., Advocate-on-Record (absent) for Appellants (in Criminal Appeal No.184 of 1999). Sardar Muhammad.Latif Khan Khosa, Senior Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Appellants (in Criminal Appeal No.185 of 1999). Shabbar Raza Rizvi, A.-G. Punjab with Mrs. Afshan Ghazanfar, A.A.-G. and Muhammad Zaman Bhatti, Advocate Supreme Court for the State.

Date of hearing: 12th May, 2004.

2006 S C M R 1120

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Mian Muhammad Ajmal, JJ

SECRETARY TO GOVERNMENT OF THE PUNJAB FOOD DEPARTMENT, LAHORE and another---Petitioners

Versus

JAVED IQBAL and others---Respondents

Civil Petitions Nos.2558-L, 2598 to 2601-L of 2003, decided on 20th February, 2004.

(On appeal from the judgment/order, dated 1-8-2003 passed by Punjab Service Tribunal, Lahore in Appeals Nos.274, 346, 347, 354, 410 of 2003).

Punjab Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----S. 3---Service Tribunals Act (LXX of 1973), Ss.4 & 5---Constitution of Pakistan (1973), Art.212(3)---Misconduct'---Connotation---Quantum of punishment---Principle---Reduction in penalty---Service Tribunal, jurisdiction of---Civil servants were dismissed from service on the charges of inefficiency and negligence but Service Tribunal converted the penalty from dismissal into reduction in pay scale---Validity---Definition of wordmisconduct' in Punjab Removal from Service (Special Powers) Ordinance, 2000, was almost the same which had been assigned to it in Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---Charges of guilty of misconduct or corruption were always considered at higher pedestal than the charge of inefficiency---Competent authority had jurisdiction to award any of the punishments mentioned in law to the Government employee but for the purpose of safe administration of justice such punishment should be awarded which commensurate with the magnitude of the guilt otherwise the law dealing with the subject would lose its efficacy---Civil servants were not guilty of the charge of misconduct or corruption, therefore, extreme penalty of removal from service for the charge of inefficiency or negligence was on higher side---Service Tribunal had rightly reduced the quantum of punishment awarded to the Civil servants by the competent authority---Supreme Court declined to interfere with the judgment passed by Service Tribunal---Leave to appeal was refused. Ms. Yasmin Sehgal, Assistant A.-G. (Punjab) and Mian Ghulam Hussain, Advocate Supreme Court for Petitioners (in all cases). Abdul Wahid Chaudhry, Advocate. Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Respondents (in C.Ps. Nos. 2558-L and 2598-L to 2600-L of 2003). Nemo for Respondents (in C.P. No.2601-L of 2003).

Date of hearing: 20th February, 2004.

2006 S C M R 1124

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

Mst. NAHEED NUSRAT HASHMI---Petitioner

Versus

SECRETARY, EDUCATION (ELEMENTARY), PUNJAB, LAHORE and others---Respondents

Civil Petition No.944-L of 2003, decided on 6th August, 2004.

(On appeal from judgment dated 14-4-2003 of the Punjab Service Tribunal, Lahore, passed in Appeal No.716 of 1998).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----R. 7--Constitution of Pakistan (1973), Art.212(3)---Findings of fact, substitution of---Discrimination by departmental Authorities---After departmental inquiry, competent Authority imposed penalty of reduction in time scale for a period of two years coupled with recovery of pecuniary loss---Service Tribunal dismissed the appeal but modified penalty by reduction in time scale into stoppage of two annual increments for four years however, recovery of pecuniary loss was maintained---Plea raised by civil servant was that she had been discriminated in departmental inquiry as other civil servants were let off---Validity---Competent Authority had issued show-cause notice to the civil servant and had also afforded her opportunity of personal hearing in the light of findings of Inquiry Officer and recommendations by Authorized Officer---Service Tribunal had already modified the penalty of her reduction in time scale by converting the same into stoppage of annual increments for four years along with recovery of pecuniary loss---Other civil servants with similar allegations were also dealt with similarly by the Authorities---Charge against the. civil servant was proved at departmental level and Supreme Court declined to substitute its findings of fact for those recorded by the competent forum in absence of any exceptional circumstances---Judgment passed by Service Tribunal was not suffering from any legal infirmity so as to warrant interference by Supreme Court---No substantial question of law of public importance was involved as envisaged by Art.185(3) of the Constitution---Leave to appeal was refused. Sh. Khizar Hayat, Advocate Supreme Court for Petitioner.Raja Abdur Rehman, A.A.-G. Punjab, Mian Ghulam Hussain, Advocate Supreme Court and Syed Ijaz Hussain Naqvi, Under Secretary, Education Department for Respondents.

Date of hearing: 6th August, 2004.

2006 S C M R 1127

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajnral, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

MUJAHID PERVAIZ---Petitioner

Versus

MATTIULLAH and others---Respondents

Criminal Petition No.361-L of 1999, decided on 14th June, 2004.

(On appeal from the judgment dated 1-6-1999 of the Lahore High Court, Lahore, passed in Criminal Appeal No.23/1994 and Criminal Revision No.401 of 1994).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---High Court had adopted a safer course in converting the death sentence of the accused into imprisonment for life-Deceased had admittedly used derogatory language against the mother of the accused which was humiliating and provocative---Only one fire shot was attributed to accused and he in the circumstances did not deserve the extreme penalty of death---Two accused persons in the case had already been acquitted by the Trial Court---Injuries on the person of the deceased appeared to have been caused by one person only and the cu-accused had rightly been acquitted by High Court on benefit of doubt---Impugned judgment did not suffer from any legal infirmity---Case, even otherwise, was not fit for grant of leave to appeal---Leave to appeal was refused to the complainant by the Supreme Court accordingly. Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court for Petitioner. M.A. Zafar, Advocate Supreme Court and Muhammad Aslam Ch. Advocate-on-Record for Respondents.

Date of hearing: 14th June, 2004.

2006 S C M R 1129

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Falak Sher, JJ

ZAHID IQBAL---Petitioner

Versus

THE STATE---Respondent

Civil Petition No.843-L of 2003, decided on 5th May, 2004.

(On appeal from the judgment dated 19-11-2003 of the Lahore High Court, Lahore passed in Criminal Revision No.1105 of 2003).

Agriculture Pesticides Ordinance (H of 1971)---

----Ss. 21(2)(a) & 23-A---Criminal Procedure Code (V of 1898), 5.342---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Specific details in questions put to accused in statement under S.342, Cr.P.C.---Effect---Adulterated and substandard pesticides---Recovery of such pesticides was witnessed by Deputy District Officer (Agriculture Extension) and a senior officer of the complainant company---Accused could not indicate any enmity or ill-will on the part of the recovery witnesses which could have led them to falsely implicate the accused in the crime---Trial Court convicted and sentenced the accused under Ss.21(2)(a) and 23-A of Agriculture Pesticides Ordinance, 1971--- Appellate Court set aside the conviction under S.21(2)(a) while that under S.23-A of Agriculture Pesticides Ordinance, 1971, was maintained---Conviction awarded by Appellate Court was maintained by High Court---Plea raised by the accused was that specific details of bottles carrying pesticides were not put to him under 5.342 Cr.P.C.---Validity---Sufficient details of pesticides in question were put 0 the accused which were more than enough to notify him of the accusations levelled against him and the evidence which had been produced by prosecution---Accused could not- show any prejudice which could have been caused to him in the matter of his defence---Supreme Court examined all aspects of the matter in question and also examined the consistent findings of guilt recorded against the accused by three Courts including High Court---Supreme Court declined to take any exception either to the findings of guilt recorded against the accused or to the quantum of punishment awarded to him---Leave to appeal was refused. Ghulam Nabi Bhatti, Advocate Supreme Court and Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Petitioner. Nemo for Respondent.

Date of hearing: 5th May, 2004.

2006 SCMR 1132

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Actg. C.J., Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

KHALIL-UR-REHMAN---Petitioner

Versus

TAJ DIN and another---Respondents

Civil Petition No.141-L of 2000, decided on 24th January, 2005.

(On appeal against the judgment dated 1-11-1999 passed by the Lahore High Court, Lahore in Civil Revision No.3697 of 1994).

Specific Relief Act (I of 1877)---

----Ss. 8 & 39---Limitation Act (IX of 1908), Arts.91 & 120---Constitution of Pakistan (1973), Art.185(3)---Suit for possession without seeking relief of cancellation of registered sale-deed---Limitation---Concurrent findings of fact by the Courts below---Contention of petitioner was that in such suit provisions of Art.91 of Limitation Act, 1908 would not be competent and same would be governed under Art.120 of Limitation Act, 1908---Plea raised by respondent was that in such suit Art.91 of Limitation Act, 1908 would govern the proceedings and Appellate Court had rightly rejected the plaint which judgment was upheld by High Court---Validity---Supreme Court declined to interfere in the judgments and decrees passed by the Courts below---Leave to appeal was refused. Mst. Hamida Begum v. Murad Begum and others PLD 1975 SC 624; Laloo and another v. Ghulaman 2000 SCMR 1058 and Shamshad Ali Shah and another v. Syed Hassan Shah and others PLD 1964 SC 143 ref. Ch. Ali Muhammad, Advocate Supreme Court for Petitioner. Mian Muzaffar, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Respondents.

Date of hearing: 24th January, 2005.

2006 S C M R 1133

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Mian Muhammad Ajmal, JJ

ZAFAR IQBAL---Petitioner

Versus

HABIB BANK LTD. and another---Respondents

Civil Petition No.3176-L of 2001., decided on 20th February, 2004.

(On appeal from the judgment/order, dated 16-7-2001 passed by Federal Service Tribunal, Lahore in Appeal No.1833-L of 1998).

Service Tribunals Act (LXX of 1973)---

----Ss. 2-A & 4---Constitution of Pakistan (1973), Art.185(3)---Premature retirement---Golden Handshake Scheme, benefits of---Petitioner a bank employee filed an application on 10-5-1996, for premature retirement which' was accepted on 14-2-1998---Petitioner after his retirement wanted to have benefits of Golden Handshake Scheme, which were refused by the bank---Validity---Department did not allow the petitioner to withdraw his earlier request for premature retirement, therefore, petitioner was not entitled for any of the benefits of the Golden Handshake Scheme, which was introduced in the meantime---After submitting the application for premature retirement, the petitioner joined another Bank and had received salaries for the period of 19 months pending decision upon his application for premature retirement, therefore, he could neither claim benefits of salary etc. for such period nor benefit of Golden Handshake Scheme could be extended to him because it was announced when petitioner had already joined the other bank---Judgment passed by Service Tribunal admitted no interference by Supreme Court---Leave to appeal was refused. Mian Mehmood Hussain, Advocate Supreme Court' and Faiz-ur-Rehman, Advocate-on-Record for Petitioner. Nemo for Respondents.

Date of hearing: 20th February, 2004.

2006 S C M R 1136

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Falak Sher, JJ

ZULFIQAR ALI---Petitioner

Versus

MUSARRAT BIBI and others---Respondents

Civil Petition No.127-L of 2002, decided on 4th May, 2004.

(On appeal from the judgment dated 23-11-2002 passed by the Lahore High Court, Lahore in Writ Petition No.8970 of 2000).

West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.185(3)---Dowry articles, return of---Agreement not signed by wife---Husband claimed to have returned dowry articles to the wife and relied upon agreement signed by two brothers of the wife---Appellate Court did not accept the agreement and directed the husband to return the articles---Judgment of Appellate Court was maintained by High Court---Validity---Wife was not a party to the agreement and the brothers had denied their signatures on the agreement---Husband could not show any authority given by the wife to her brothers to enter into the agreement with the husband---Judgment of High Court affirming the conclusion reached by the Appellate Court was not open to any exception---Leave to appeal was refused. Ch. Muhammad Yaqub Sindhu, Advocate Supreme Court with M. Ozair Chughtai, Advocate-on-Record for Petitioner. Nemo for Respondents.

Date of hearing: 4th May, 2004.

2006 S C M R 1137

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Mian Muhammad Ajmal and Khalil-ur-Rehrnan Ramday, JJ

SECRETARY, HEALTH, GOVERNMENT OF PUNJAB, LAHORE and 2 others---Petitioners

Versus

Dr. NISAR AHMAD---Respondent

Civil Petition No.831-L of 2003, decided on 18th February, 2004.

(On appeal from the judgment, dated 29-1-2003 of the Punjab Service Tribunal, Lahore passed in Appeal No.2904 of 2002). '

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

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Appeal before Service Tribunal, barred by limitation---New plea, raising of---Service Tribunal reinstated civil servant with a direction to hold de novo inquiry---Plea raised by Authorities was that the appeal, was time-barred---Validity---Such ground was not available to Authorities as the point was not taken up by them before Service Tribunal specifically---Order of Service Tribunal was just and proper as it had directed the Department to hold de novo inquiry---Case of Authorities, warranted no interference by Supreme Court under Art.212(3) of the Constitution---Leave to appeal was refused. Raja Abdur Rehman, A.A.-G. and Mian Ghulam Hussain, Advocate Supreme Court for Petitioners. Mian Saleem Saigal, Advocate Supreme Court and C.M. Lateef, Advocate-on-Record for Respondent.

Date of hearing: 18th February, 2004.

2006 S C M R 1139

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Khalil-ur-Rehman Rmnday and Falak Sher, JJ

WAQAR AHMED---Petitioner

Versus

SHAUKAT ALI and others---Respondents

Criminal Petition No.303-L of 2002, decided on 13th February, 2004.

(On appeal from the judgment dated 1-11-2003 passed by the Federal Service Tribunal in Service Appeal No.404-L/CE of 2001).

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

----S. 302(b)/34---Constitution of Pakistan (1973), Art.l85(3)---Appeal against acquittal by High Court---Prosecution was primarily bound to establish its own case independently instead of depending upon the weaknesses of the defence---Assertion of the accused in his statement under S.342, Cr.P.C. of having fired in self-defence was not sufficient to establish the prosecution case regarding the guilt of the accused---Such statement of accused, no doubt, could be accepted in toto in the absence of any other prosecution evidence, but the plea of self-defence of the accused was itself denied by the prosecution witnesses during their cross­-examination---Firing by the accused was indicated by the FIR., but no incriminating empty was recovered from the place of occurrence by the Investigating Agency---Incident, thus, did not appear to have occurred in the manner as disclosed by the prosecution---Ocular testimony was neither trustworthy nor confidence-inspiring---Impugned judgment of High Court finding the involvement of the accused in the crime doubtful was based on evidence and being just and proper did not warrant any interference---Leave to appeal was refused to the complainant by the Supreme Court accordingly. The State v. Muhammad Hanif and 5 others 1992 SCMR 2047 ref.

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

----S. 302(b)134---Burden of proof---Prosecution always has to establish its own case independently instead of depending upon the weaknesses of the defence same being its primary duty.

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

----S. 302(b)/34---Criminal Procedure Code (V of 1898), 5.342---Appreciation of evidence---Principles---Statement of accused under S.342, Cr.P.C. can be accepted in toto, if there is no other prosecution evidence and the case is to be decided only on the statement of the accused. The State v. Muhammad Hanif and 5 others 1992 SCMR 2047 ref. Sh. Khizar Hayat, Advocate Supreme Court for Petitioner. Nemo for Respondents..

Date of hearing: 13th February, 2004.

2006 S C M R 1142

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Falak Sher, JJ

KHADIM HUSSAIN---Petitioner

Versus

Mst. MANSAB MAI and others---Respondents

Civil Petition No.1572-L of 2002, decided on 5th May, 2004.

(On appeal from the judgment dated 7-3-2002 of the Lahore High Court, Multan Bench passed in Civil Revision No.190/D/2002).

Specific Relief Act (I of 1877)---

----S. 42---Constitution of Pakistan (1973), Art.185(3)---Declaration of title---Mutation of gift---Proof---Concurrent findings of facts by the Courts below---Plaintiff assailed gift mutation on the ground of fraud and asserted that the mutation was to deprive the plaintiff of her legal right in the property of her father---Defendant claimed to be the owner of suit property on the basis of gift made by the owner in his life time---Disputed gift was made to the defendant about three years prior to the death of donor but it was found by all the Courts that he could neither prove his possession of the land under the gift nor he could establish the factum of gift having been made in his favour---Besides examining the oral as well as documentary evidence by the defendant, it had also been noticed by the Courts that the alleged thumb-impression of the donor on the statement made by him which appeared on the mutation did not appear under the order of the Assistant Commissioner dated 18-12-1991 when the alleged donor had made the statement in question but appeared under the order dated 31-12-1991 when the alleged donor was not in this world any more---Trial Court decreed the suit in favour of the plaintiff and the judgment was maintained by Appellate Court---High Court in exercise of revisional jurisdiction refused to interfere in the concurrent judgments passed by two Courts below---Validity---Supreme Court declined to take any exception to the consistent findings of the three Courts--Leave to appeal was refused. Khan Dil Muhammad Khan Alizai, Advocate Supreme Court and Ch. Talib Hussain Advocate-on-Record for Petitioner. Nemo for Respondents.

Date of hearing: 5th May, 2004.

2006 S C M R 1144

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

ABDUL GHAFOOR and others---Petitioners

Versus

MUKHTAR AHMAD KHAN and others---Respondents

Civil Petition No.205-L of 2003, decided on 6th August, 2004.

(On appeal from the judgment dated 30-12-2002 passed by Lahore High Court, Multan Bench, Multan, in Civil Revision No.980/D of 2000).

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Art.79---Constitution of Pakistan (1973), Art.185(3)---Registered gift-deed---Onus to prove---Presumption of correctness---Plaintiffs asserted that registered gift-deed in favour of defendants was a forged document and no such deed was executed by their predecessor-in-interest to exclude their father---Trial Court dismissed the suit but Appellate Court decreed the same-Judgment and decree passed by Appellate Court was affirmed by High Court---Validity---Though presumption of truth was attached to registration of a document but if its contents were challenged then onus would shift on beneficiary to prove its contents---Defendants were to prove that their predecessor-in-interest had validly gifted the suit property in terms of disputed gift-deed---Defendants produced neither any marginal witness of the gift-deed nor its scribe and even the person who identified the predecessor-in-interest was also not produced---Defendants, thus, had failed to prove their case---Supreme Court declined to interfere in the judgment and decree passed by High Court---Leave to appeal was refused.

(b) Islamic Law---

----Gift---Exclusion of one of the legal heirs from inheritance---Disputed gift-deed was assailed on the ground that it was a forged document and was prepared to exclude father of plaintiffs from inheritance---Validity---Trend of cross-examination of plaintiffs indicated that relations between donor and excluded son were cordial---No circumstance was brought on record to indicate that the relations were strained to warrant interference or the donor had any tenable reasons to exclude father of plaintiffs from inheritance---Gift-deed was set aside. Allah Rakha and others v. Federation of Pakistan and others PLD 2000 FSC 1 ref. Zafar Iqbal Chaudhry, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioners. Amir Alam Khan, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Respondents.

Date of hearing: 6th August, 2004.

2006 S C M R 1147

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad, C.J., Mian Muhammad Ajmal

and Muhammad Nawaz Abbasi, JJ

QAISER and another---Petitioners

Versus

THE STATE---Respondent

Criminal Petition No.846-L of 2002, decided on 30th May, 2003.

(On appeal from the judgment dated 14-10-2002 of the Lahore High Court, Lahore passed in the Criminal Appeal No.1523 of 2001 and Murder Reference No.35/T of 2002).

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

----Ss. 302(b) & 148---Appreciation of evidence---Corroboration---Principle---Court in case of interested and inimical witnesses should look for independent corroboration, but this rule is not an inflexible rule of criminal administration of justice, rather the rule of corroboration is a rule of abundant caution which ' is to be necessarily followed to ensure the correctness of the allegation and if the direct evidence was confidence-inspiring there would be no need of corroboration.

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

----S. 7---Penal Code (XLV of 1860), Ss.302(b) & 148---Constitution of Pakistan (1973), Art.185(3)---Accused had a direct motive to eliminate the eye-witnesses of the earlier murder case which had provided a strong and sufficient corroboration to the ocular account---Medical evidence was another source of corroboration in respect of kind of weapon used in the occurrence, the nature of injuries and the time of death---Eye-witnesses inter se had corroborated each other on each material point and their evidence was of unimpeachable character---Report of the occurrence had been lodged within one hour containing full details of the occurrence excluding even a remote possibility of substitution of the real culprits or the presence of witnesses at the spot---Occurrence was an extreme act of terrorism and brutality in which five persons were killed on the road at a busy place---No mitigation in favour of accused for lesser punishment could be shown and they did not deserve any leniency in the matter of sentence---Leave to appeal was refused to accused in circumstances. Sh. Zamir Hussain, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioners. Ch. Muhammad Abdus Saleem, Senior Advocate Supreme Court and M. Aslam Ch. Advocate-on-Record for Respondent.

Date of hearing: 30th May, 2003.

2006 SC MR 1152

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Faqir Muhammad Khokhar and Falak Sher, JJ

RASHID AHMED---Petitioner

Versus

MUHAMMAD NAWAZ and others---Respondents

Criminal Petition No.242-L of 2002, decided on 10th February, 2004.

(On appeal from the judgment dated 21-1-2002 passed by the Lahore High Court, Lahore in Criminal Appeal No.557 of 1997).

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

----S. 302(b)/34---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal by High Court---Testimony of the prosecution witness not mentioned in the F.I.R. but introduced subsequently, had no evidentiary value---Statement of the complainant did not get any corroboration from any independent source including the recovery of incriminating articles which itself was doubtful---Medical evidence was also in conflict with the ocular testimony---Impugned judgment of High Court acquitting the accused was neither perverse nor was the result of overlooking any important incriminating piece of evidence---No interference by Supreme Court, therefore, was called for---Leave to appeal was declined to the complainant accordingly. Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11 ref.

Criminal Procedure Code (V of 1898)---

----S. 417---Penal Code (XLV of 1860), S.302(b)/34---Appeal against acquittal---Principle---Accused after his acquittal has a double presumption of innocence to his credit---Courts, therefore, are very slow to interfere in such order unless it is shown to be perverse or having overlooked important incriminating evidence.

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

Khawaja M. Afzal, Advocate Supreme Court for Petitioner.

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

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

Date of hearing: 10th February, 2004.

2006SCMR 1155

[Supreme Court of Pakistan]

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

YAQOOB SHAH---Appellant

Versus

SECRETARY, BOARD OF REVENUE, N.-W.F.P and others---Respondents

Civil Appeal No.1290 of 2001, decided on 14th January, 2005.

(On appeal from the judgment dated 23rd February, 2001 in Appeal No.2078 of 1997 passed by the N.-W.F.P. Service Tribunal, Peshawar).

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

----S. 4---Reinstatement---Back-benefits, refusal of---Principle of consistency---Applicability---Civil servant was reinstated in service by Service Tribunal but back-benefit were not awarded to him---Grievance of civil servant was that his other colleagues were reinstated with back­ benefits---Validity---On the basis of principle of consistency, the civil servant was also entitled to the same treatment with regard to back-benefits and thereby he could not be discriminated---Nothing was available on record that the civil servant worked for gain during the period of his removal---On the contrary, the civil servant had prayed his back-benefits even in his appeal before Service Tribunal---Service Tribunal erred in not granting back-benefits to the civil servant considering that there was nothing on the conduct of civil servant which warranted his removal from service---Judgment passed by Service Tribunal was modified to the extent that the civil servant was entitled to back-benefits---Appeal was allowed.

Qadeer Ahmad v. Punjab Labour Appellate Tribunal, Lahore and another PLD 1990 SC 787 and Pakistan Automobile Corporation Ltd. through Chairman v. Mansoor-ul-Haque and others 2004 SCMR 1308 ref.

S.M. Abul Wahab, Advocate Supreme Court for Petitioner.

M. Bilal, Senior Advocate Supreme Court for Respondents.

Date of hearing: 14th January, 2005.

2006 S C M R 1157

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Actg. C.J., Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

MUHAMMAD MUZAFFAR---Petitioner

Versus

MAQSOOD-UL-HASSAN---Respondent

Civil Miscellaneous Application No.33-L of 2005 and Civil Petition No.3240-L of 2004, decided on 26th January, 2005.

(On appeal from the order, dated 30-9-2004 passed by Lahore High Court, Bahawalpur Bench Bahawalpur in Civil Revision No.364 of •2002/BWP).

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), Ss.2(2) & 47---Specific performance of agreement---Execution of judgment---Non-preparation of decree-sheet---Effect---Compromise was effected between the parties and on the first date of hearing, suit was dismissed by Trial Court for want of cause of action---Plaintiff filed execution application which was allowed by Executing Court but Appellate Court dismissed the execution application on the ground that since no decree-sheet was prepared, the same could not be executed---Order passed by Appellate Court was maintained by High Court---Plea raised by plaintiff was that as compromise had been effected between the parties, therefore, the judgment was executable---Validity---When the suit was dismissed for want of cause of action and Trial Court prepared no decree-sheet, there was no question of filing execution application nor such order could be executed---High Court had rightly dismissed revision and no interference of Supreme Court was called for in exercise of jurisdiction under Art.185(3) of the Constitution---Leave to appeal was refused.

Ch. Inayatullah, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 26th January, 2005.

2006-S C M R1158

[Supreme Court of Pakistan]

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

SHAUKAT ABBAS alias KAKA ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.303 of 1999, decided on 8th May, 2003.

(On appeal from the judgment dated 20-10-1998 of the Lahore High Court, Multan Bench, Multan passed in Criminal Appeal No.210 of 1994)

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

----Ss. 302(b), 337-A(i) & 337-F(i)---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to accused to consider the contentions that the prosecution evidence discarded by the Courts below in acquitting the co-accused could not be pressed into service for conviction of accused, that prosecution witnesses being interested and closely related to the deceased their evidence was not corroborated by any other evidence, that the motive was shrouded in mystery, that the recovery of the weapon of offence was not established beyond doubt and that the case being of single injury without any attempt to repeat the same, capital punishment was not called for.

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

----Ss. 302(b), 337-A(i) & 337-F(i)---Appraisal of evidence---Occurrence had taken place in the street near the residential houses of the parties---Scissors ordinarily was not used as a weapon of offence and presence of the womenfolk of the complainant party at the scene of occurrence was indicative of happening something immediately before the incident resulting into the sad occurrence---Accused had caused a single injury to the deceased with the scissors and despite having an opportunity did not repeat the same which had suggested that he was suddenly flared up under the influence of his elder brothers and while losing patience and without visualizing the serious consequence of his action caused a solitary blow with the scissors on the sensitive part of the body of the deceased which proved fatal---Convictions of accused were upheld but his sentence of death was converted into imprisonment for life in circumstances.

Raja Muhammad Anwar, Senior Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Appellant.

M. Zaman Bhatti, Advocate Supreme Court for Respondent.

Sh. Khizar Hayat, Advocate Supreme Court for Complainant.

Date of hearing: 8th May, 2003.

2006 S C M R 1163

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Syed Deedar Hussain Shah and Abdul Hameed Dogar, JJ

C.A. No.1071 of 2000

HUSSAIN BADSHAH and another---Petitioners

Versus

AKHTAR ZAMAN and others---Respondents

(On appeal from the judgment of Peshawar High Court, D.I. Khan Bench, dated 30-5-2000 passed in Writ Petition No.89 of 1999).

C.A. No.1072 of 2000

RASTA BAZ KHAN and others---Petitioners

Versus

GOVERNMENT OF N.-W.F.P. and others---Respondents

(On appeal from the judgment of Peshawar High Court, D.I. Khan Bench, dated 30-5-2000 passed in Writ Petition No.79 of 1999).

C.A. No.1073 of 2000

INAYATULLAH KHAN and others---Petitioners

Versus

AKHTAR ZAMAN and others---Respondents

(On appeal from the judgment of Peshawar High Court, D.I. Khan Bench, dated 30-5-2000 passed in Writ Petition No.89 of 1999).

C.A. No.1903 of 2000

DIRECTOR OF EDUCATION and others---Petitioners

Versus

BABER ELAHI and others---Respondents

(On appeal from the judgment of Peshawar High Court, Abbottabad Bench, dated 12-5-2000 passed in Writ Petition No.374 of 1998).

C.A. No.1904 of 2000

GOVERNMENT OF N.-W.F.P. and others---Petitioners

Versus

RAQIAZ KHAN and others---Respondents

(On appeal from the judgment of Peshawar High Court, D.I. Khan Bench, dated 30-5-2000 passed in Writ Petition No.79 of 1999).

C.A. No.1905 of 2000

GOVERNMENT OF N.-W.F.P. and others---Petitioners

Versus

AKHTAR ZAMAN and others---Respondents

(On appeal from the judgment 0e Peshawar High Court, Abbottabad Bench, dated 30-5-2000 passed in Writ Petition No.89 of 1999).

C.A. No.1906 of 2000

GOVERNMENT OF N.-W.F.P. and others---Petitioners

Versus

MUHAMMAD IMTIAZ KHAN and others---Respondents

(On appeal from the judgment of Peshawar High Court, D.I. Khan Bench, dated 30-5-2000 passed in Writ Petition No.66 of 1999)..

C.A. No.1907 of 2000

GOVERNMENT OF N.-W.F.P. and others---Petitioners

Versus

FAROOQ KHAN and others---Respondents

(On appeal from the judgment of Peshawar High Court, D.I. Khan Bench, dated 30-5-2000 passed in Writ Petition No.31 of 2000).

C.A. No.1908 of 2000

GOVERNMENT OF N.-W.F.Y. and others---Petitioners

Versus

MUHAMMAD IQBAL and others---Respondents

(On appeal from the judgment of Peshawar High Court, D.I. Khan Bench, dated 30-5-2000 passed in Writ Petition No.134 of 1999).

C.A. No.1910 of 2000

KIFAYATULLAH and others---Petitioners

Versus

GOVERNMENT OF N.-W.F..P. and others---Respondents

(On appeal from the judgment of Peshawar High Court, Peshawar Bench, dated 12-4-2000 passed in Writ Petition No.660 of 1999).

Civil Appeals Nos.1071, 1072, 1073, 1903 to 1908 and 1910 of 2000, decided on 28th May, 2002.

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

----Art. 25---Civil service---Appointment as teacher---Candidates qualifying from institutions other than Elementary P.T.C. Colleges managed and controlled by Provincial Government---Principle of discrimination---Applicability---Since all educational institutions situated within the country are duly recognized by University Grants Commission and their certificates and diplomas are given equivalence by the Commission, there is no warrant for discriminating the candidates qualifying from the institutions other than Elementary P.T.C. Colleges managed and controlled by the Provincial Government.

Oliver Brown v. Board of Education of Topeka 347 U.S. 483, 349 U.S.294; Sharin Munir v. Government of Punjab PLD 1990 SC 95 and Aitiyya Bibi Khan v. Federation of Pakistan 2001 SCMR 1161 rel.

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

----Art. 199---Judgment passed by High Court in Constitutional jurisdiction---Effect---Past and closed transaction, doctrine of---Applicability---Policy adopted by Provincial Government regarding appointment of teachers was declared by Full Bench of High Court as void ab initio and without lawful authority---Appellants were appointed prior to such declaration and their appointments were on merits--Grievance of appellants was that their appointments could not be affected by the declaration given by Full Bench of High Court---Validity---Declaration to the effect that all appointments made under the earlier policy were illegal, void and without lawful authority could not sustain being against the law as the judgment of High Court would operate prospectively and not retrospectively adversely affecting the rights already accrued to the teachers appointed before the declaration of law by Full Bench of High Court---Appointments made prior to the judgment were neither inherently illegal nor ultra vires the law---Appellants were amongst the candidates who qualified from Elementary P.T.C. Colleges of N.-W.F.P., Allama Iqbal Open University and other Institutions on merits and having regard to the qualifications obtained by such persons, many of the appellants were even not party to the Constitutional petitions before the High Court---Vested rights of the appellants could not be disturbed to their disadvantage---Case of appellants was protected by the doctrine of past and closed transaction and the same could not be re?opened---Appeal was allowed.

Zaffar Ali Shah v. Federation of Pakistan PLD 2000 SC 869 and Pakistan through Secretary, Ministry of Finance v. Muhammad Hamayatullah PLD 1969 SC 407 rel.

Abdul Aziz Kundi, Advocate-on-Record for Petitioners (in C.A. No.1071 of 2000).

Muhammad Ibrahim Satti, Advocate Supreme Court for Respondents (in C.A. No.1071 of 2000).

Sardar Shaukat Hayat, Addl. A.-G., N.-W.F.P. for Government of N.-W.F.P. (in C.A. No.1071 of 2000).

Saeed Baig, Advocate Supreme Court for Petitioners (in C.A. No.1072 of 2000)

Sardar Shaukat Hayat, Additional Advocate-General, N.-W.F.P. for Government of N.-W.F.P. (in C.A. No.1072 of 2000).

Muhammad Ibrahim Satti, Advocate Supreme Court for Respondents (in C.A. No.1072. of 2000).

Abdul Aziz Kundi, Advocate Supreme Court (in C.A. No.1073 of 2000).

Sardar Shaukat Hayat, Additional Advocate-General, N.-W.F.P. for Government of N.-W.F.P. (in C.A. No.1073 of 2000).

Muhammad Ibrahim Satti, Advocate Supreme Court and Ejaz Muhammad Khan Advocate-on-Record for Respondents (in C.A. No.1073 of 2000).

Sardar Shaukat Hayat, Additional Advocate-General, N.-W.F.P. for Petitioners (in C.A. No.1903 of 2000).

Abdur Rashid Awan, Advocate Supreme Court for Respondents (in C.A. No.1903 of 2000)..

Sardar Shaukat Hayat, Additional Advocate-General N.-W.F.P. for Petitioners (in C.A. No.1904 of 2000).

Arif Khan, Advocate Supreme Court, Muhammad Ibrahim Satti, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondents (in C.A. No.1904 of 2000).???????

Sardar Shaukat Hayat, Additional Advocate-General N.-W.F.P. for Petitioners (in C.A. No.1905 of 2000).

Muhammad Ibrahim Satti, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-record for Respondents (in C.A. No.1905 of 2000).

Sardar Shaukat Hayat, Additional Advocate-General N.-W.F.P. for Petitioners (in C.A. No.1906 of 2000).

Arif Khan, Advocate Supreme Court, Muhammad Ibrahim Satti, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondents (in C.A. No.1906 of 2000).

Sardar Shaukat Hayat, Additional Advocate-General N.-W.F.P. for Petitioners (in C.A. No.1907 of 2000).

Arif Khan, Advocate Supreme Court, Muhammad Ibrahim Satti, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondents (in C.A. No.1907 of 2000)..

Sardar Shaukat Hayat, Additional Advocate-General N.-W.F.P. for Petitioners (in C.A. No.1908 of 2000).

Muhammad Ibrahim Satti, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondents (in C.A. No.1908 of 2000).

Muhammad Waris Khan, Advocate Supreme Court for Petitioners (in C.A. No.1910 of 2000).

Sardar Shaukat Hayat, Additional Advocate-General N.-W.F.P. for Respondents (in C.A. No.1910 of 2000).

Date of hearing: 28th May, 2002.

2006 S C M R 1170

[Shariat Appellate Jurisdiction]

Present: Mr. Justices Abdul Hameed Dogar, Chairman Mian Shakirullah Jan, Raja Fayyaz Aimed, Dr. Allama Khalid Mehmood and

Allama Rashid Ahmed Jullandhari, Members

MUHAMMAD SHARIF----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.28(S) of 2003, decided on 16th December, 2005.

(On appeal from the judgment, dated 5-3-2002 of the Federal Shariat Court, Islamabad passed in Jail Criminal Appeal No.219/I of 2001).

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

---Ss. 16, 10(2)(3) & 11---Constitution of Pakistan (1973), Art.203-F---Leave to appeal was granted by the Supreme Court to reappraise the evidence as to whether convictions and sentences passed were in accordance with the principles laid down by the Supreme Court for appreciation of evidence.

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

---Ss. 11, 10(3) & 16---Criminal Procedure Code (V of 1898), 5.237---Accused was charged under Ss.11 & 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 whereas he was convicted and sentenced under Ss.16 and 10(2) of the Ordinance---Held, there was no embargo in convicting and sentencing the accused for an offence other than that he was charged with, as provided under S.237, Cr.P.C.

(c) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----Ss. 11, 10(3) & 16---Constitution of Pakistan (1973), Art.203-F---Reappraisal of evidence---Admittedly, it was not disputed that the occurrence had taken place and girl who was sister of wife of the accused was enticed away on 21-9-1999 by accused and she remained with him till her death on 1-4-2000---Girl, admittedly had died due to miscarriage of premature child which occurred during the period she was residing with the accused and the act of abortion was done in order to conceal the fact of her being pregnant---Ocular version furnished by prosecution witnesses that they saw the accused along with the girl while boarding a bus, too implicated the accused with commission of offence---Two Courts below had appraised the evidence furnished by the prosecution fully and had rightly convicted the accused by holding that due to such an immoral act of the accused, the entire family of his in-laws was ruined--Supreme Court maintained the judgment of Federal Shariat Court as there was no justification to interfere with the same---Appeal was dismissed being devoid of force.

Appellant through Jail.

Raja Saeed Akram, A.A.-G. Punjab for the State.

Date of hearing: 16th December, 2005.

2006SCMR1174

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

Mst. SARWAT QAMAR----Petitioner

Versus

PROVINCE OF PUNJAB and others----Respondents

Civil Petition No.484-L of 2003, decided on 25th November, 2005.

(On appeal from the judgment, dated 30-12-2002 passed by the Punjab Service Tribunal, Lahore in Appeal No.2570 of 2000).

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

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Removal from service---Petitioner, who was appointed as P.T.C. Teacher, was removed from service on ground that her appointment order was proved to be illegal/bogus being without merit and against government policy---Departmental Authorities as well as the Service Tribunal had recorded their concurrent findings of fact that petitioner was never selected by District Recruitment Committee, nor her name figured in the merit list and that appointment order of petitioner was a forged document---Finding of fact recorded by competent departmental forums and the Service Tribunal, could not be reviewed by Supreme Court---Impugned judgment of Tribunal not suffering from any defect or legal infirmity, could not be interfered with by Supreme Court.

Pervaiz Inayat Malik, Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 25th November, 2005.

2006 S C M R 1175

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ

MUHAMMAD IBRAR----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.129 of 2005, decided on 22nd March, 2006

(On appeal from the judgmmment, dated 3-J-20J of the Lahore High Court, Bahawalpur Bench, Bahawalpur passed in Criminal Appeal No.147 of 2001).

Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan (1973), Art. l85(3)---Prosecution had successfully brought on record ocular testimony of prosecution witnesses which stood corroborated by medical evidence---Participation of accused was also proved in the case as he was not only injured in the incident but also admitted to have fired at the deceased in exercise of right of self-defence---Deceased had lost his life and prosecution witnesses had sustained injuries with hard and sharp edged weapon whereas acquitted accused and his father sustained one blunt weapon injury on head and another acquitted accused his brother received three injuries with blunt weapon and raised the plea of self-defence---Main reason which weighed with the High Court for reduction in sentence of accused was that occurrence was not a premeditated incident and that it took place at the door of the accused---Judgment of High Court reducing the sentence of accused was based on proper appraisal of evidence and did not require interference by the Supreme Court---Petition for leave to appeal to Supreme Court against reduction in sentence of accused was dismissed in circumstances.

Nemo for Petitioner.

Dil Muhammad Tarar, Advocate Supreme Court for the State.

Date of hearing: 22nd March, 2006.

2006SCMR1180

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Falak Sher and Ch. Ijaz Ahmad, JJ

SECRETARY EDUCATION, GOVERNMENT OF PUNJAB and others----Petitioner

Versus

Syeda ZIL-E-SUBHANI JEHAN ARA BEGUM----Respondent

Civil Petition No.878-L of 2002, decided on 24th November, 2005.

(On appeal from the judgment, dated 12-1-2002 of the Punjab Service Tribunal, Lahore passed in Appeal No.2997 of 1999).

Constitution of Pakistan (1973)---

----Art. 212(3)---Advance increments---Entitlement---Service Tribunal had not examined question of entitlement of respondent to grant of advance increments in the light of rules/policies governing the subject and had allowed respondent's appeal only on the ground that competent Authority had granted said increments to three others who were similarly placed as the respondent, and since advance increments had been illegally allowed to said three subject specialist; and because on illegality committed by someone could be no precedent for a judicial forum to commit a similar illegality, counsel for parties agreed that matter be remanded to Service Tribunal to consider the matter afresh and then to determine; whether respondent was entitled to advance increments in question in terms of relevant rules/policies---Petition was converted into appeal and was allowed, as a result whereof impugned judgment was set aside and matter was remanded to Service Tribunal for fresh decision of the same.

A.H. Masood, Advocate Supreme Court with Muhammad Anis, Deputy Secretary and Muhammad Aslam, Assistant for Petitioners.

Pervez Inayat Malik, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Respondent.

Date of hearing: 24th November, 2005.

2006SCMR 1181

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Mian Shakirullah Jan, JJ

BASHIR AHMED and others----Appellants

Versus

MUHAMMAD SAEED BHATTI and others----Respondents

Civil Appeal No.921 of 2000, decided on 2nd February, 2005.

(On appeal from the judgment, dated 5-11-1998 passed by the Lahore High Court in S.A.O.. No.99 of 1996).

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

----Ss. 2(c)(i), 13 & 15---Constitution of Pakistan (1973), Art.185---Ejectment of tenant- Relationship of landlord and tenant---Tenants denied existence of relationship of landlord and tenant contending that they were not in occupation of the shop which landlords had mentioned in their ejectment application, but were in occupation of a different shop---Question of identity of shop being involved, counsel for landlords, was repeatedly asked about the possession and occupation of tenants in the property which landlords claimed and not the one which tenants had asserted, but counsel had failed to point out from record that tenants were in possession of the shop which landlords had mentioned in their ejectment application---Ejectment application was accepted concurrently by Rent Controller and the Appellate Authority, but High Court in second appeal had rightly upset judgment of two Authorities below, holding; that landlords had not been able to prove statutory as well as contractual tenancy; and that contradictory claims by parties with respect to the title and question of demarcation of property, was also involved---Findings of High Court being un-exceptionable, needed no interference.

Ch. Arshad Mehmood, Advocate Supreme Court and Mian Atta­ur-Rehman, Advocate-on-Record for Appellants.

Sh. Anwar-ul-Haq, Advocate Supreme Court for Respondents Nos.l to 3.

Date of hearing: 2nd February, 2005.

2006 SC MR 1183

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

AMEER NAWAZ----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.177 of 2004, decided on 9th March, 2006.

(On appeal from the judgment, dated 24-2-2004 of the Lahore High Court, Lahore passed in Criminal Appeal No.145/J of 2002).

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

----S. 9(c)---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Accused could not refer to any misreading, non-appraisal of evidence or any glaring irregularity in the impugned judgment of the High Court---Prosecution had fully established its case by bringing on record the evidence of prosecution witnesses and positive report of Chemical Examiner---Accused had failed to prove the case of fabricated recoveries or false implication and did not opt to appear as his own witness under S.340(2), Cr.P.C. but tendered in evidence photo copies of medical reports of hospital in his defence---Petition for leave to appeal against the judgment of the High Court, being devoid of force, was dismissed by the Supreme Court.

Malik M. Kabir, Advocate Supreme Court for Petitioner.

Muhammad Aslam Malik, Advocate Supreme Court for the State.

Date of hearing: 9th March, 2006.

2006SCMR1186

[Supreme Court of Pakistan]

Present: Javed Iqbal and Hamid Ali Mirza, JJ

MUHAMMAD ANWAR and others----Petitioners

Versus

GHULAM FAKHAR-UD-DIN and another----Respondents

C.P. No.3364 of 2003, decided on 10th November, 2005.

(On appeal from the judgment, dated 22-10-2003 in R.S.A. No.106-D of 1987 passed by the Lahore High Court, Multan Bench, Multan).

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

----Ss. 15 & 21---Constitution of Pakistan (1973), Art.185(3)---Suit for pre-emption---Superior right of pre-emption---Plaintiffs filed suit claiming superior right of pre-emption on the ground of being collaterals of the vendors---Suit was resisted by defendant vendees, contending; that plaintiffs could not prove to be collateral of vendors; and that minor plaintiff during pendency of suit having attained majority, it was mandatory in law under O.XXXII, R.12, C.P.C. for plaintiffs to correct the title of the suit by making necessary amendment---Trial Court and Appellate Court below concurrently decreed suit and High Court affirmed concurrent finding of courts below holding that plaintiffs were collaterals of vendors and had superior right of pre-emption---Pedigree table produced by plaintiffs had proved that plaintiffs were collaterals of vendors---High Court had rightly affirmed findings of two Courts below that plaintiffs being collateral of vendors had superior right of pre­emption---In absence of any misreading or non-reading of evidence on record, no interference was called for by Supreme Court in the matter---Minor who attained majority during pendency of suit had not objected to impugned judgment which in fact was in his favour---Minor on attaining majority having acquiesced in impugned order, defendants had no locus standi to raise said objection---Said objection raised by defendants would not affect impugned judgment on merits---Objection having no merits, finding of High Court whereby findings of two Courts below were affirmed, could not be interfered with by Supreme Court.

Ibad-ur-Rehman Lodhi, Advocate Supreme Court for Petitioners.

Ramzan Khalid Joya, Advocate Supreme Court for Respondents.

Date of hearing: 10th November, 2005.

2006 SC MR 1190

[Supreme Court of Pakistan]

Present: Ch. Ijaz Ahmed and Syed Jamshed Ali, JJ

Dr. Syeda MAH RUKH FAT'IMA and another----Petitioners

Versus

Lady Doctor MARYAM SHOAIB through Secretary Health Department Quetta and others----Respondents

Civil Petitions Nos.24 and 25-Q of 2006, decided on 27th April, 2006.

(On appeal from the judgment, dated 1-2-2006 passed by High Court of Balochistan in C.Ps. Nos. 752 and 791 of 2005).

Constitution of Pakistan (1973)---

----Art. 185(3)---Recruitment---Merit list---Final order---Dispute between the parties was with regard to selection for a particular zone---No suitable candidate was available for the particular zone, therefore, Provincial Public Service Commission recommended appointment of the petitioner---High Court in exercise of constitutional jurisdiction interfered and recommendation of Public Service Commission was set aside---Contention of petitioner was that recommendation for appointment of candidate was made respectively against other zone and against merit quota available as a result of non-availability of candidate for particular zone in question---Merit list showed that respondent was at serial No.7, therefore, there was no justification for the High Court to interfere in the matter---Petitioner also contended that no final order on recommendation of Public Service Commission was passed, therefore, constitutional petition was pre-mature---Contention of authorities was that in case a candidate from a particular zone to which vacancy had been allocated was available he or she was entitled to be appointed against that quota---Leave to appeal was granted by Supreme Court to consider the contentions of the parties.

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

Mohsin Javed, Advocate - Supreme Court, S.A.M. Qadri, Advocate-on-Record and Ameen-ud-Din Khan Bazai, A.A.-G. for Petitioners (in C.P. No.24-Q of 2006).

H. Shakeel Ahmad, Advocate Supreme Court and Ayyaz Swabi, Advocate Supreme Court for Petitioners (in C.P. No.25-Q of 2006).

Ameen-ud-Dun Khan Bazai, A.A.-G. for Respondents.Nos.2 and 3 (in C.P. No.24-Q of 2006).

Raja M. Afsar, Advocate Supreme Court for Respondent No.1 (in C.P. No.24-Q of 2006).

Ameen-ud-Din Khan Bazai, A.A.-G. for Respondents Nos.l and 2 (in C.P. No.25-Q of 2006).

Raja M. Afsar, Advocate-on-Record for Respondent No.3 (in C.P. No.25-Q of 2006).

Date of hearing: 27th April, 2006.

2006SCMR 1192

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Ch. Ijaz Ahmed, JJ

Haji SARDAR KHALID SALEEM----Petitioner

Versus

MUHAMMAD ASHRAF and others----Respondents

C.P. No.1210-L of 2004, decided on 14th November, 2005.

(On appeal from the judgment, dated 4-3-2004, passed by Lahore High Court in I.C.A. No.158 of 2003).

(a) Practice and procedure--

----Civil and Criminal proceedings---Criminal proceedings were not barred in presence of civil proceedings and civil and criminal proceedings could be proceeded simultaneously.

Ahmad Saeed v. The State 1996 SCMR 186; Talab Hussain v. Anar Gul Khan and 4 others 1993 SCMR 2177 and Deputy Inspector-General of Police v. Anees-ur-Rehman Khan PLD 1985 SC 134 ref.

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

----Art. 199---Penal Code (XLV of 1860), Ss.420, 468, 471 & 489-F---Constitutional jurisdiction---Scope---If, prima facie, an offence had been committed, ordinary course of trial before the Court: should not to be allowed to be deflected by resorting to constitutional jurisdiction of High Court---By accepting constitutional petition, high Court would err in law to short circuit the normal procedure as provided by law, while exercising equitable jurisdiction which was not in consonance with the law.

Habib Ahmed v. M.K.G. Scott Christian PLD 1992 SC 353 ref.

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

----Arts. 185(3) & 199---Penal Code (XLV of 1860), Ss.420, 468, 471 & 489-F---Criminal Procedure Code (V of 1898), Ss.249-A & 265-K---Constitutional petition before High Court---Competency---Quashing of F.I.R.---Constitutional petition for quashing of F.I.R. was accepted by High Court on the ground that cheque in question was issued prior to the promulgation of Criminal Law (Amendment) Ordinance (LXXXV of 2002)---Intra-Court appeal was also dismissed on the ground of' being not maintainable---Mere mentioning of S.489-F, P.P.C. in the F.I.R., was no ground to quash F.I.R. by High Court while exercising constitutional jurisdiction under Art.199 of the Constitution, without adverting to contents of F.I.R.---Petitioner had alternative remedy to raise objection at the time of framing charge against him by the Trial Court or at the time of final disposal of the trial by the Trial Court after recording evidence---Even otherwise petitioner had more than one alternative remedies viz. before, the Trial Court under Criminal Procedure Code, 1898 i.e. S.265-A or 249-A, Cr.P.C. and that fact was also not considered by High Court---If the contents of constitutional petition and F.I.R. were put in juxtaposition, then it would bring case of petitioner in the area of disputed question of fact which could not be decided by High Court in exercise of its constitutional jurisdiction which required investigation and evidence of parties to be recorded by the Trial Court---High Court, in circumstances had erred in law in accepting constitutional petition by quashing F.I.R. at initial stage---Cheque in question which was issued, having been dishonoured, ingredients of Ss.420, 468 &.471, P.P.C. were prima facie, attracted---Petition for leave to appeal was converted to appeal and was allowed setting aside the impugned order---Supreme Court had ample jurisdiction to condone delay in case party would approach wrong forum---Delay was condoned.

Nawazul Haq Chowhan v. The State and another 2003 SCMR 1597; Ghulam Muhammad v. Muzamal Khan and 4 others PLD 1967 SC 317; Mohsin Ali and another v. The State 1972 SCMR 229; Abdul Rehman v. Muhammad Hayat Khan 1980 SCMR 311; Marghoob Alam and another v. Shams-ud-Din and others 1986 SCMR 303; Manzoor Hussain Shah v. The State 1986 SC 265; Sheikh Muhammad Yameen v.. The State 1973 SCMR 622; Bashir Ahmad v. Zafar-ul-Islam PLD 2004 SC 298 and Shirin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584 ref.

Ahmad Awais, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record for Petitioner.

Mian Shah Abbas, Advocate Supreme Court for Respondents.

Date of hearing: 14th November, 2005.

2006 S C M R 1197

[Shariat Appellate Jurisdiction]

Present: Justices Abdul Hameed Dogar, Chairman Mian Shakirullah Jan, Raja Fayyaz Ahmed, Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullundhari, Members

NADEEM----Petitioner

Versus

THE STATE Respondent

Jail Petition No.37(S) of 2004, decided on 16th December, 2005.

(On appeal from the judgment, dated 24-3-2004 of the Federal Shariat Court, Islamabad passed in Jail Criminal Appeal No.205-I of 2002 and Criminal Murder Reference No.6-I of 2003).

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S. 12---Penal Code (XLV of 1860), Ss.302(a), 377 & 201---Constitution of Pakistan (1973), Art.203-F---Reappraisal of evidence---Sodomy and murder of the victim---Prosecution had been able to bring on record the testimony of complainant who supported the case of prosecution as disclosed in the F.I.R.; prosecution witnesses had unequivocally deposed that they saw the minor victim going along with the accused at the bank of canal and during the search on the night of incident, complainant and the prosecution witnesses saw the accused coming back alone and on enquiring he(accused) got perturbed and ran away and the most strong factor, which implicated the accused with commission of offence was disclosure about the commission of sodomy with the deceased boy and then throttling him to death and throwing his body in the canal, which was recovered immediately after his arrest on his pointation and prosecution witnesses also corroborated the version that dead body of the victim was recovered from the canal---Such being strong piece of evidence, had established the case of the prosecution against the accused---Accused had not given any satisfactory reply to the questions put to him under S.342, Cr.P.C. so much so that he neither examined himself on oath nor produced any witness in defence---Accused could not point out any illegality, misreading, non-reading or misappreciation of evidence from the impugned judgment of the Federal Shariat Court, which was accordingly maintained by the Supreme Court---Petition for leave to appeal was dismissed.

Arshad Ali Ch. Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 16th December, 2005.

2006 S C M R 1200

[Supreme Court of Pakistan]

Present: Javed Iqba1 and Ch. Ijaz Ahmad, JJ

TANVEER SHOUKAT----Petitioner

Versus

DISTRICT AND SESSIONS JUDGE, NAROWAL and others----Respondents

Civil Petition No.2243-L of 2003, decided on 15th February, 2006.

(On appeal from the judgment, dated 23-6-2003 of Punjab Service Tribunal, Lahore passed in Appeal No.464 of 2003).

Constitution of Pakistan (1973)---

----Art. 212(3)---Conversion of petition into appeal---Impugned order had not been passed with diligent application of mind as petitioner appeared to be well conversant with Urdu language and had got reasonable skill in writing Urdu which had made him capable to perform his routine duties---Appellate Authority had, on the contrary observed that petitioner was not capable to write even simple sentences in Urdu, which observation seemed to be without any substance in view of the fact that petitioner was called in person and asked to write a few sentences in Urdu which was done by the petitioner---Petition was converted into appeal and accepted---Impugned judgment as well as order passed by Appellate Authority/District Judge, were set aside---Appeal preferred on behalf of petitioner before Appellate Authority, would be treated as pending which would be decided in accordance with law and merits within specified period.

Pervaiz Inayat Malik, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record with Petitioner in person.

Akhtar Ali Qureshi, A.A.-G., Punjab for Respondents.

Date of hearing: 15th February, 2006.

2006 S C M R 1202

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Raja Fayyaz Ahmed, JJ

SHERI-CBE and others----Petitioners

Versus

LAHORE DEVELOPMENT AUTHORITY and others----Respondents

Civil Petition No.522-L of 2006, decided on 14th April, 2006.

(On appeal from the order, dated 9-3-2006 of the Lahore High Court, Lahore passed in I.C.A. No.45 of 2006).

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

----S.3---Constitution of Pakistan (1973), Art.185(3)---Intra Court Appeal---Maintainability---Interim order---Petitioner assailed before High Court in constitutional jurisdiction, leasing of amenity plot by the authorities to a private company for construction of a huge complex including cinema and shopping mall---High Court admitted the petition for regular hearing and in the meanwhile restrained the authorities and the company from raising any construction for six weeks---Authorities and the company filed Intra Court Appeal against the order of High Court, seeking suspension of the order---Contention of petitioner was that no Intra Court Appeal was competent against interim order and the order passed by Division Bench of High Court was an order without jurisdiction---Respondents contended that the order of High Court had trappings of a final order and Intra Court Appeal was thus maintainable against the same---High Court had mentioned in its order in question that whatever had been mentioned in the order was only tentative in nature and that complicated questions of law arose in the matter which required to be settled---Leave to appeal was granted by Supreme Court to consider; whether in the circumstances, an Intra Court Appeal was or was not competent.

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

----0. XXXIX, Rr. 1 & 2---Constitution of Pakistan (1973), Art. 185(3)---Interim injunction---High Court granted interim injunction without giving any finding regarding existence of preconditions necessary for an interim injunction---Leave to appeal was granted by Supreme Court to consider; whether in absence of finding regarding existence of a prima facie case or about balance of convenience or accrual of irreparable loss of public money, the interim injunction could be re-called/suspended.

(c) Disposal of Land by Development Authorities (Regulation) Act (XII of 1998)---

----S. 5---Lahore Development Authority Act (XXX of 1975), Ss.6(3)(iv) & 47---Constitution of Pakistan (1973), Art.185 (3)---Interim injunction, grant of---Allotment of amenity plot---Non-availability of original plan of the concerned housing scheme---Leave to appeal was granted by Supreme Court to consider; whether concerned authorities be permitted to play around with the Scheme on the pretext of non-availability of the Scheme.

(d) Disposal of Land by Development Authorities (Regulation) Act (XII of 1998)---

----S. 5---Lahore Development Authority Act (XXX of 1975), Ss.6(3)(iv) & 47---Qanun-e-Shahadat (X of 1984), Art.129(g)---Constitution of Pakistan (1973), Art.185(3)---Amenity plot---Onus to prove---Withholding of necessary document---Effect---Plot in question was an amenity plot which was leased out by the authorities to a private company for construction of big complex including cinema and shopping mall---Plea raised by the authorities was that the original plan of the . housing scheme was not available thus the plot in question could be allotted---Validity---Since it was the authorities who wished to put a piece of land which had been preserved and used as an open space for over half a century to a different use, onus was on them to establish that such use was permitted by law---Leave to appeal was granted by Supreme Court to consider; whether a mere plea of non-availability of basic document could ever be considered a sufficient discharge of the burden; and whether adverse inference could be drawn against the authorities in the matter on account of their such conduct.

(e) Disposal of Land by Development Authorities (Regulation) Act (Xll of 1998)---

----S. 5---Lahore Development Authority Act (XXX of 1975), Ss.6 (3) (iv) & 47---Constitution of Pakistan (1973), Art.185(3)---Amenity plot---Proof---Penal consequences---Plot in question was an amenity plot which was leased out by the authorities for construction of a cinema and shopping mall---Plea raised by the petitioner was that the authorities could not offer any proof and were, according to their own admission, not possessed of any evidence that the plot in question was not a public utility area or a public amenity park, therefore, all concerned were guilty of commission of the offence and were liable to be prosecuted and punished for the same---Leave to appeal was granted by Supreme Court to consider the contention of petitioner.

(f) Disposal of Land by Development Authorities (Regulation) Act (XII of 1998)---

----S. 5---Lahore Development Authority Act (XXX of 1975), Ss.6 (3) (iv) & 47---Constitution of Pakistan (1973), Art.185 (3)---Amenity plot, leasing of---Procedure---Powers of Chief Minister---Plot in question was an amenity plot which was leased out by the authorities for construction of a cinema and shopping mall---Authorities contended that it was the Chief Minister, who on a summary submitted to him for the purpose, had leased out the land for a period of 25 years---Leave to appeal was granted by Supreme Court to consider; whether such was a legal and a valid transfer/entrustment of the property vesting in Lahore Development Authority.

(g) Constitution of Pakistan (1973)---

----Art. 185(3)---Government building---Non-approval of construction plan---Amenity plot was leased out to a private company for construction of a cinema and shopping mall---Construction of building was started without sanction of construction plan---Plea raised by the authorities was that the building being constructed was a government building and did not require sanctioning of construction plan---Leave to appeal was granted by Supreme Court to consider; whether there was any law exempting government building from the operation of legal requirement; and whether a building constructed by a company which was an independent legal entity having been incorporated as such under Companies Ordinance, 1984, could be said to be a government building.

(h) Pakistan Environmental Protection Act (XXXIV of 199----

----Ss. 2(xxxv) & 12---Constitution of Pakistan (1973), Art.185 (3)---Protection of environment---Construction of complex---Dispute was with regard to construction of complex in a residential area over an amenity plot---Contention of the petitioner was that the complex in question involved construction of a huge building with an initial estimated cost-of Rs.1500 million, which involved use of roads in a residential locality by a large number of additional persons and vehicles visiting the complex which also involved a change in land use, fell within the purview of a 'Project' as defined by S.2 (xxxv) of Pakistan Environmental Protection Act, 1997, and in view of provisions of S.12 of the Pakistan Environmental Protection Act, 1997, the very commencement of its construction without filing an initial environment examination with the Federal Agency and without its approval regarding the environmental impact assessment, was grossly illegal and was even a culpable offence under Pakistan Environmental Protection Act, 1997---Leave to appeal was granted by Supreme Court to consider the contention raised by the petitioner.

(i) Constitution of Pakistan (1973)---

----Art. 185(3)---Government contract---Transparency---Contention of the petitioner was that the Government had entered into a contract with a foreign company for supply of equipment for cinema in question and the contract worth about twenty five crores in Pakistani currency, was in violation of law, the rules and the policy on the subject and also in violation of all norms of transparency and good governance as no advertisement or notice had ever been issued in the national or international press inviting tenders, bids and offers with respect to the same and the deal had been finalized in secrecy -and in a clandestine manner---Leave to appeal was granted by Supreme Court to consider the contention of petitioner.

(j) Constitution of Pakistan (1973)---

----Art. 185(3)---Public money, use of---Exercise of executive power---Amenity plot was leased out to a private company for construction of a cinema and shopping mall---Construction was to be made by government funds---Cinema planned to be constructed was for three dimension movies---Contention of petitioner was that it did not behove the Government to be involved in building luxurious three dimensional movie theatres and expensive shopping malls for the rich and famous and that also by investing millions from the hard-earned money of public---Leave to appeal was granted by Supreme Court to consider; whether such use of public money could ever be condoned as a reasonable exercise of executive power.

(k) Constitution of Pakistan (1973)---

----Art. 185(3)---Running of private companies by government---Amenity plot was leased out to a private company for construction of a cinema and shopping mall---Private company was a State/Government owned company and its Memorandum and Articles of Association prohibited its sponsors/directors to change the same---Contention of' the authorities was that it was a global trend all over the world to achieve governmental objectives by setting up companies which was a more efficient and effective mode of securing the objects as such companies, not being government departments, were free of bureaucratic red-tapism and controls and that the company in question was not sovereign and was subject to governmental controls and the public money entrusted to it was safe---Leave to appeal was granted by Supreme Court to consider the contention of the authorities.

Syed Mansoor Ali Shah, Advocate Supreme Court with M.A. Qureshi, Advocate-on-Record for Petitioners.

Qamar-uz-Zaman, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record and Hafiz Moin-ud-Din, Deputy Director Cantonment for Respondent No.1.

S.M. Zafar, Senior Advocate Supreme Court with Rao Muhammad Yousaf Khan, Advocate-on-Record and Attaullah Siddiqui, Deputy Secretary Information and Cultural Department for Respondents Nos.3 and 5.

Ali Akbar Qureshi, Advocate Supreme Court with Mehmood-ul-Islam, Advocate-on-Record for Respondent No.4.

Aftab Iqbal Chaudhry, Advocate-General, Punjab.

Date of hearing: 14th April, 2006.

2006 SCMR 1217

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Ch. Ijaz Ahmed and Syed Jamshed Ali, JJ

MUHAMMAD RAHIM and others----Petitioners

Versus

BAKHT MUHAMMAD and others----Respondents

Criminal Petition No.7-Q of 2004, decided on 18th April, 2006.

(On appeal from the order, dated 8-1-2004 passed by the High Court of Balochistan in Criminal Appeal No.5 of 2003).

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

----Art. 185---Appeal against acquittal---Appreciation of evidence in appeal against acquittal is entirely different as compared to the appreciation of evidence in appeal against conviction.

Muhammad Iqbal's case 1994 SCMR 1928 and Ghulam Sikandar's case PLD 1985 SC 11 rel.

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

----Ss. 337-F (ii)(iii)(v)/34---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---Reappraisal of evidence---Benefit of doubt---Delay in recording of statements of prosecution witnesses---Suppression of injuries of accused---After conclusion of trial, nine persons were acquitted while two were convicted by Trial Court and sentenced to 4 years imprisonment---High Court accepted the appeal and acquitted both the accused---Plea raised by complainant was that prosecution had proved its case and Trial Court had rightly convicted both the accused---Validity---Evidence of prosecution witnesses was at variance and their statements were contradicting each other on material points---Prosecution witnesses improved their statements before Trial Court to connect the accused with commission of offence---Statements of prosecution witnesses were not recorded promptly which were recorded after a considerable delay and witnesses failed to explain the delay---High Court considered such fact in its true perspective and found that the statements of prosecution witnesses were not trustworthy as it had created doubt in their veracity---Complainant had suppressed injuries of accused---High Court was justified to acquit both the accused as Trial Court had acquitted nine persons on the basis of same evidence on which both were convicted---Supreme Court declined to interfere with the judgment of acquittal passed by High Court---Leave to appeal was refused.

Abdul Ali's case 2002 SCMR 203 ref.

Syed Saeed Muhammad Shah's case 1993 SCMR 550 rel.

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

----Ss. 337-F(ii), (iii), (v)/34---Appraisal of evidence---Medical evidence---Scope---Medical evidence is always considered as supporting evidence---Injuries by themselves are not sufficient to identify the culprit.

Amir Zaman's case 1985 SCMR 685; Abdul Karim's case 1992 SCMR 1445; Mehmood Ahmad's case 1995 SCMR 127 and Muhammad Sharif's case 1995 SCMR 635 rel.

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

----Art. 185(3)---Jurisdiction of Supreme Court under Art.185(3) of the Constitution---Scope---Supreme Court is not a court of appeal while exercising power under Art.185 (3) of the Constitution---Supreme Court is not expected to reappraisal the evidence except in exceptional circumstances.

Ayaz Khan Swati, Advocate Supreme Court for Petitioners.

M. Aminuddin Bazai, Additional A.-G. for the State.

2006 SCMR 1221

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Falak Sher, JJ

MUHAMMAD SARWAR and another----Petitioners

Versus

THE STATE----Respondent

Jail Petition No.37 of 2005, decided on 24th February, 2006.

(On appeal from the judgment, dated 23-12-2004 of the Lahore High Court, Lahore passed in Criminal Appeal No.149-J of 2000).

Penal Code (XLV of 1860)---

---S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Incident in the case, had taken place outside the house of another person and not that of the accused, who had taken the plea of self-defence stating that deceased persons had come to his house to abduct his sister-in-law, thus the plea of self-defence by the accused was falsified; non-examination of sister-in-law of the accused in their defence by the accused persons was also vital and theory put forth by accused persons that deceased had come to abduct the lady had no force at all; ocular version given by eye-witnesses, complainant and other witness was fully corroborated by the medical evidence---Empties recovered from the place of occurrence matched with the guns recovered from the accused persons and the positive report of Forensic Science Laboratory was sufficient to convince that the fires had been made from the said guns---Accused persons had failed to point out any misreading, non-reading or non-appreciation of evidence in the impugned judgment and there was no reason to interfere with the concurrent findings of two Courts below---Supreme Court maintaining the judgments of Court below, dismissed the petition for leave to appeal.

Syed Ali Hassan Gillani, Advocate Supreme Court for Petitioners.

Ch. Munir Sadiq, Advocate Supreme Court for the State.

Dates of hearing: 23rd and 24th February, 2006.

2006 S C M R 1225

[Supreme Court of Pakistan]

Present: Javed Iqbal and Abdul Hameed Dogar, JJ

Peer MUKARAM-UL-HAQ----Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU (NAB) through Chairman and others----Respondents

Civil Petition No.2658 of 2005, decided on 13th March, 2006.

(On appeal from the judgment, dated 11-10-2005 of Lahore High Court, Rawalpindi Bench, passed in Writ Petition No.2395 of 2005).

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

----Ss. 496, 497 & 426---National Accountability Ordinance (XVIII of 1999), S.9---Constitution of Pakistan (1973), Arts.199 & 185(3)---Bail on medical ground---Suspension of sentence---Principles---Petitioner had undergone a substantive portion of sentence and the medical certificates were indicative of the ailment which appeared to be somewhat serious---Medical opinion furnished by Medical Specialist had recommended shifting of petitioner to some care health facility where a team of Specialists in Diabetes, Neuro-physicians and Cardiologist were available---Petitioner, during the recent past, was hospitalized and remained under treatment in the Department of Urology---Held, requisite medical facilities, modern techniques, uptodate operation skill and know-how were not available in the District Headquarter Hospitals which aspect of the matter could not be ignored---Grant of bail and suspension of sentence though was a discretionary matter but such discretion should be exercised in accordance with the substantive provisions of law and the principles settled by the Supreme Court---Suspension of sentence might be refused but in such an eventuality it would be mandatory for the High Court to assign reasoning which could not be done by disposing of the constitutional petition preferred by the petitioner and such order of the High Court could not be equated to that of a "firm" or "well-reasoned" order---Where the High Court had not assigned any reasoning for disposal of the constitutional petition, such order of the High Court could not be termed as speaking order and was also not in consonance with the law laid down by the Supreme Court---Supreme Court converted the petition into appeal and accepted the same and petitioner was directed to be released on bail on furnishing surety of the specified amount---Petitioner was directed to surrender his passport in the office of the Registrar of the Supreme Court and his name was directed to be placed on exit list till disposal of his appeal pending before the High Court.

\Muhammad Din v. State 1986 SCMR 1970; Muhammad Yaqoob v. State 1991 SCMR 1459; Altaf Hussain Shah v. State 1994 SCMR 480; Barkat Hussain v. State 1995 SCMR 1109; Criminal Petitions Nos.38-4-L of 1993, 84-L of 1995, Criminal Petition No.172-L of I995; Zulfiqar Muhammad Tufail v. State 1981 SCMR 727; Manzoor Hussain v. State 1982 SCMR 357; Abdur Rashid v. State 1988 SCMR 149; Muhammad Akram v. State 1994 SCMR 277 and Muhammad Ashiq v. State 1996 SCMR 1559 ref.

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

----Ss. 497- & 426---Bail, grant of---Suspension of sentence---'Principles---Where in heinous offence sentence of life imprisonment or 14 years' R.I, had been awarded the question of suspension of sentence would not arise subject to certain exceptions but in proper case the bail could be granted where the sentence of death or life imprisonment had been awarded.

The State v. Shehswar 1969 SCMR 151; Bahar Khan v. The State 1969 SCMR 81; Abdullah Khan v. Karamdad Khan 1968 SCMR 1064; Maqsood v. Ali Muhammad 1971 SCMR 657; Abdul Ghafoor v. Anwarul Hassan 1978 SCMR 149; Faqir Muhammad v. Akbar 1979 SCMR 270; Haji Mir Aftab v. The State 1979 SCMR 32Q; Muhammad Ashraf v. State 1971 SCMR 183; Noor Abdullah v. State 1981 SCMR 859; Jamshed Azam v. State 1990 SCMR 1393; Khalid Saigol v. State PLD 1962 SC 495; Abdur Rashid v. The State 1988 SCMR 149; Muhammad Khurshid v. Wazirzada 1986 SCMR 181 and Nawab Khan v. State 1987 SCMR 274 ref.

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

----Art. 185---Jurisdiction of Supreme Court---Scope and extent---Supreme Court being at the apex has constitutional duty to impart complete justice and therefore, it cannot be inhibited by any restraint or restriction and has abiding duty to consider all the pros and cons of the matter and to take an overall view of the case while dispensing justice.

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

----S. 497(1)---Bail on medical ground---Sick or infirm person may be released on bail even if there are reasonable grounds for believing that he has been guilty of an offence punishable with death or life imprisonment---Where a statute itself lays down certain principles for doing some acts they may be taken as a guideline for doing something of the same nature which is in the discretion of the Court.

Maqsood v. Ali Muhammad 1971 SCMR 657 ref.

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

----Ss. 426, 496 & 497---Power conferred under S.426, Cr.P.C. is not controlled by the provisions of Ss.496 and 497, Cr.P.C., but the principles enunciated therein can be taken into consideration while granting or refusing bail.

Bashir Ahmad v. Zulfiqar PLD 1992 SC 463 ref.

Sardar Muhammad Ishaq, Advocate Supreme Court for Petitioner.

Naveed Saeed, Advocate Supreme Court for Respondents.

2006 SCMR 1230

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

MUHAMMAD NABI and 4 others----Petitioners

Versus

THE STATE----Respondent

Criminal Petition No.50 of 2004, decided on 26th January, 2006.

(On appeal from the judgment, dated 6-1-2004 of the High Court of Balochistan, in Criminal Appeal No.255 of 2001).

Penal Code (XLV of 1860)---

----Ss. 365-A & 337-F(ii)---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Admittedly abductees were recovered from the possession of the accused persons on the next day of the incident during an encounter which took place between raiding party and the accused persons in which complainant and one of the accused persons were injured; accused persons voluntarily confessed their guilt, accordingly their confessional statements were recorded by the Assistant Commissioner who fully corroborated and stated that the said confessional statements were true and voluntary and record established that immediately after the abduction, accused demanded a ransom amount of Rs.50 lacs and got said letter written from complainant to his brother, irrespective of the same, it was also proved on record that the accused persons took Rs.10,000 from the abductees during their captivity---Held, ingredients of S.365-A, P.Y.C. were fully attracted, simple demand of ransom amount for the release of abductees was sufficient to bring the case within the ambit of S.365-A, P.Y.C.---No illegality or irregularity having been pointed in the impugned judgment and case being heinous in nature, should not have been treated lightly and accused did not deserve any leniency---Supreme Court declined interference and dismissed the petition for leave to appeal.

Muhammad Anwar Sipra, Advocate Supreme Court for Petitioners.

Nemo for the State.

Date of hearing: 26th January, 2006.

2006 S C M R 1234

[Supreme Court of Pakistan]

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

FATEH JAN----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.268 of 2004, decided on 6th April, 2006.

(On appeal from the judgment, dated 14-1-2004 passed by the Peshawar High Court, Peshawar in Criminal Appeal No.237 of 2004).

Penal Code (XLV of 1860)---

----Ss. 302 & 319---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Question as to Qatl-i-Amd or Qatl-i-Khata---When the version put forth by the prosecution can equally well be interpreted as that of the accused and when both the probabilities appear reasonable, the version given by the accused is to be preferred.

Tariq Bilal, Advocate Supreme Court for Petitioner.

M. Saeed Khan, Additional Advocate-General, N.-W.F.P. for the State.

Date of hearing: 6th April, 2006.

2006 S C M R 1238

[Supreme Court of Pakistan]

Present: Abdul Hawed Dogar and Saiyed Saeed Ashhad, JJ

MUSHTARI KHAN----Petitioner

Versus

JEHANGIR KHAN----Respondent

Civil Petition No.1955 of 2005, decided on 28th March, 2006.

(On appeal from the judgment, dated 25-4-2005 passed by Peshawar High Court, Peshawar in Civil Revision No.292 of 2005).

Civil Procedure Code (V of 1908)---

----S. I15-Revision-Judgment of Trial Court decreeing the suit was reversed by the Appellate Court and while reversing the same no proper reasons had been advanced---High Court had erred in dismissing the revision against the appellate judgment by holding that revision could not be invoked against the conclusion of law or facts which did not, in any way affect the jurisdiction of the Court---Validity---Held, non-reading or misappreciation of evidence also amounted to an illegality to be examined under S.115, C.P.C. by a revisional Court---Impugned judgment of the High Court was set aside by the Supreme Court and case was remanded for disposal of the revision in accordance with law.

Hafiz Saeed Ahmad Sheikh, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Sardar Liaqat Ali, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondent.

2006 S C M R 1240

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and Mian Shakirullah Jan, J

MUHAMMAD ILYAS KHOKHAR and 24 others----Petitioners

Versus

FEDERATION OF PAKISTAN and others----Respondents

Civil Petitions Nos.2002, 2023, 2024 to 2046 of 2004, decided on 20th March, 2006

(On appeal from the judgment, dated 8-7-2004 passed by the Federal Service Tribunal in Service Appeals Nos.269(P) CS of 2000 270(R) CS of 2000 61(P) CS of 2000, 62(P) CS of 2000, 718(R) CS of 2000 64(P) CS of 2000, 260(P) CS of 2000, 261(P) CS of 2000, 262(P) CS of 2000, 263(P) CS of 2000, to 268(P) CS of 2000, 60(P) CS of 2000, 714(R) CS of 2000, 717(R) CS of 2000, 63(P) CS of 2000, 719(R) CS of 2000, 720(R) CS of 2000, 736(R) CS of 2000, 737(R) CS of 2000, 738(R) CS of 2000 and 739(R) CS of 2000).

(a) Civil Servants Act (LXXI of 1973)---

----Ss. 3(ii) & 9(b)---Constitution of Pakistan (1973), Art.212(3)---Promotion---Terms and conditions of service---Departmental Circular varying the terms and conditions of service was in violation of and in conflict with Ss.3(ii) & 9(b), Civil Servants Act, 1973 as department had no lawful authority to lay down policy, unless the same was approved by the Establishment Division in accordance with the Rules of Business as well as the relevant law on the subject---Ex-post facto approval to such circular by the Establishment Division would not make the circular valid and legal which had no legal backing.

(b) Service Tribunals Act (LXX of 1975)---

----Ss. 4 & 5---Constitution of Pakistan (1973), Art.212(3)---Appeal to Service Tribunal was barred by time---Service Tribunal had the jurisdiction to condone the delay, if appeals were beyond the limitation---Supreme Court declined interference in the matter of condonation of delay by the Service Tribunal.

Managing Director, Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas PLD 2003 SC 724 ref.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Petitioners.

Mrs. Naheeda Mehboob Elahi, Dy. A.-G., Fazal Elahi Siddiqui, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Respondents.

Date of hearing: 20th March, 2006.

2006 S C M R 1243

[Shariat Appellate Jurisdiction]

Present: Justices Abdul Hameed Dogar, Chairman Mian Shakirullah Jan, Raja Fayyaz Ahmad, Dr. Allama Khalid Mahmud and Atlanta Rashid Ahmed Jullundhari, Members

RASHID AHMED----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous Application No.423 of 2004 and Criminal Petition No.24(S) of 2004, decided on 28th November, 2005.

(On appeal from the judgment, dated 15-10-2003 of the Federal Shariat Court, Lahore passed in Criminal Appeal No.111-L of 1999).

Penal Code (XLV of 1860)---

----Ss. 302, 148, 149, 324, 364, 449 & 452---Constitution of Pakistan (1973), Art.203-F---Prosecution had brought on record truthful and convincing evidence of complainant, injured witnesses and the abductee---Accused had been proved to have played pivotal role in the commission of murder by forming unlawful assembly and with common object---Accused had been assigned specific role of kidnapping the lady on the pretext that her father had a major role in an early case of abduction of another lady---Abducted lady while narrating the present incident had clearly deposed at the trial that while she was being carried in the car after abduction, she was recovered from the car and accused and co-accused persons were also arrested by the police from the car---Case being not that of murder simpliciter but was coupled with kidnapping, which was an offence against society, was not compoundable---Accused could not refer to any misreading, non-reading or illegality in the impugned judgment of Federal Shariat Court warranting interference by Supreme Court---Petition for leave to appeal by accused was dismissed in circumstances.

Sanaullah Zahid, Advocate Supreme Court for Petitioner.

Raja Saeed Akram, A.A.-G. Punjab for the State.

Date of hearing: 28th November, 2005.

2006SCMR 1248

[Supreme Court of Pakistan]

Present: Javed Iqbal and Hamid Ali Mirza, JJ

GOVERNMENT OF PAKISTAN through Ministry of Works and another----Petitioners

Versus

Messrs MALBROW BUILDERS, CONTRACTOR, SIALKOT----Respondent

Civil Petition No.1823 of 2004, decided on 7th December, 2005.

(On appeal from the judgment of the Lahore High Court, dated 14-5-2004 passed in R.S.A. No.20 of 1998).

Constitution of Pakistan (1973)---

----Art. 185---Supreme Court Rules, 1980, O.Xlll, R.1---Appeal to Supreme Court by Federal Government---Barred by time---Condonation of delay---'Sufficient cause'---Connotation---Question of limitation being not a mere technicality cannot be taken lightly and the rights accrued to the other party due to limitation cannot be snatched away without 'Sufficient Cause' and lawful justification---'Sufficient Cause' is not capable of connotation with exactitude and would differ from case to case but laxity, carelessness and curosory approach of the functionaries of the Government do not constitute sufficient cause and question of any indulgence does not arise---Delinquent officers/officials, who are responsible for such delay must be taken to task being responsible for the loss of public exchequer--No illegality or infirmity having been noticed in the judgment of High Court declining condonation of delay, no preferential treatment could be shown to the Government.

Managing Director Sui Southern Gas Company Limited .v.. Ghulam Abbas PLD 2003 SC 724 distinguished.

Chairman, District Evacuee Trust v. Abdul Khaliq through Legal Heirs and others PLD 2002 SC 436; Central Board of Revenue, Islamabad through Collector of Customs, Sialkot Dry Port, Sambrial, District Sialkot and others v. Messrs Raja Industries (Pvt.) Ltd. through General Manager and 3 others 1998 SCMR 307; Federation of Pakistan through Secretary Ministry of Foreign Affairs, Government of Pakistan and 5 others v. Jamaluddin and others 1996 SCMR 727 and Government of Punjab through Secretary (Services) S.A.& I Department, Lahore and another v. Muhammad Saleem PLD 1995 SC 396 ref.

Raja M. Irshad, Dy. A.-G. (Punjab) M.S. Khattak, Advocate-­on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 7th December, 2005.

2006 SCMR 1251

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Nasir-ul-Mulk and Karamat Nazir Bhandari, JJ

GHULAM HAIDER and others----Petitioners

Versus

MUHAMMAD NADEEM SAJID and another----Respondents

Criminal Petitions Nos.193-L, 194-L and 198-L of 2003, decided on 20th March, 2006.

(On appeal from the judgment of Lahore High Court, Lahore, dated 29-1-2003 passed in Criminal Appeal No.2032 of 2001 and Criminal Revision No.348 of 2002).

Penal Code (XLV of 1860)---

----Ss. 302(b) & 311---Criminal Procedure Code (V of 1898), S.345(2) [as amended by Criminal Law (Amendment) Act (II of 1997)]---Constitution of Pakistan (1973), Art.185---Qatl-i-Amd---Offence not compounded by other legal heirs, except widow of the deceased---Sentence under S.311, P.P.C. awarding of---Validity---Supreme Court granted leave to appeal to consider as to whether accused under such circumstances was liable to punishment under S.302(b), P.P.C.

Muhammad Aslam v. Shoukat Ali 1997 SCMR 1307 and Muhammad Saleem v. The State PLD 2003 SC 512 ref.

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

----S. 302/34---Appreciation of evidence---Commission of Qatl-i-Amd by principal-accused with fire-arm while riding on motorcycle with co-­accused---No active role attributed to co-accused in commission of offence nor was he carrying any weapon---No motive of co-accused to take life of deceased nor had he any intention or reasonable knowledge of Qatl-i-Amd of deceased on the part of principal accused---Held, co-accused had not shared the common intention with principal accused to cause death of deceased.

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

----S. 302/34---Constitution of Pakistan (1973), Art.185(3)---Acquittal of accused by High Court---Validity---Such findings, if based on well-reasoned, correct and consistent approach, would be entitled to much weight and would double .the initial presumption of innocence of accused.

M.A. Zafar Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) (in Criminal Petitions Nos.193-L and 194-L of 2003).

Abdul Rehman Madni, Advocate. Supreme Court and A.H. Masood, Advocate-on-Record (absent) (in Criminal Petition No.198-L of 2003).

Nemo for Respondents (in all petitions).

Date of hearing: 20th March, 2006.

2006 S C M R 1254

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Saiyed Saeed Ashhad, JJ

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman----Petitioner

Versus

Brig. (R.) MUHAMMAD ARIF and another----Respondents

Civil Petition for Leave to Appeal No.932 of 2004, decided on 5th April, 2006.

(On appeal from the judgment, dated 3-3-2004 of the Lahore High Court, Rawalpindi Bench, passed in Writ Petition No.282 of 2001).

Compulsory Service (Armed Forces) Ordinance (XIV of 1965)---

----Preamble---Constitution of Pakistan (1973), Art.185(3)---Respondent was initially appointed on probation as Engineer in WAPDA and on account of state of war between Pakistan and India, he was commissioned in Pakistan Army on 13-12-1965 by way of conscription in terms of Compulsory Service (Armed Forces) Ordinance, 1965; respondent got his normal promotions in the Army and retired from service in the rank of Brigadier with effect from 14-12-1995; he approached WAPDA for his re-employment which showed its inability to adjust him---High Court accepted appeal of the respondent for his re­employment-Validity-Held, for all practical purposes respondent could no longer be considered to be governed by compulsory service (Armed Forces) Ordinance, 1965 as he had been permanently inducted into Pakistan Army from where he retired as Brigadier and question of his repatriation to WAPDA would not arise at all---Judgment of High Court was not sustainable at law---Principles.

Mian Khurshid Alam Ramay, Advocate Supreme Court for Petitioner.

Zaheer A. Qadri, Advocate-on-Record for Respondents.

Respondent No.1 in Person.

Date of hearing: 4th April, 2006.

2006 S C M R 1257

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, Hamid Ali Mirza and Karamat Nazir Bhandari, JJ

STATE through Advocate-General, Sindh----Appellant

Versus

MOOSO----Respondent

Criminal Appeal No.287 of 1994, decided on 6th April, 2006.

(On appeal from the judgment, dated 1-2-1994 of the High Court of Sindh, Karachi in Criminal Appeal No.236 of 1993).

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

----S. 365-A---Constitution of Pakistan (1973), Art.185(3)---Acquittal of accused by High Court---Leave to appeal was granted by the Supreme Court to reappraise the evidence brought on the record and to secure the attendance of the acquitted accused---Bailable warrant in the sum of Rs.50,000 with one surety was issued against him.

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

----S. 365-A---Constitution of Pakistan (1973), Art.185---Appeal against acquittal by High Court---Reappraisal of evidence by Supreme Court---Prosecution had fully established its case by bringing on record testimony of the complainant and abductees coupled with other circumstantial evidence---High Court had acquitted the accused on wrong presumption and had not appreciated the evidence properly---Perusal of the impugned judgment of the High Court had made it clear that High Court, while discussing the evidence of witnesses, had categorically stated that all the witnesses had implicated the accused in the commission of offence---High Court while discussing the evidence of complainant in the impugned judgment had mentioned that the accused along with co-accused came at the place of occurrence and abducted three persons and demanded Rs.2,00,000 as ransom---High Court had wrongly mentioned that the complainant was declared hostile whereas it was not so as per record whereby he was never declared hostile but had fully implicated the accused and others on the factum of abduction and demand of ransom---Impugned judgment of the High Court showed that witnesses had identified the accused---High Court had mentioned in the impugned judgment that complainant and prosecution witness had supported the factum of abduction and also the encounter which took place between the law-enforcing agencies and dacoits during which abductee was killed whereas other two abductees were got released by the police---Complainant and prosecution witness and abductees in their respective statements at trial had fully supported the case of prosecution both on the factum of abduction and demand of ransom---Prosecution witnesses, at trial, had identified the accused to be one of the culprits for kidnapping and demand of ransom---Judgment of the High Court was not sustainable in law as such its concluding paragraph which read as "even if the prosecution evidence was accepted as correct, there was nothing on record to show if ransom money was paid to the accused. There was nothing on record to show that demand of ransom money was made by the accused. In the circumstances there was no evidence for conviction of the accused under S.365-A, P.P.C."---Appreciation of evidence by the Trial Court was to be given full weight by the Appellate Court for the reasons that the Trial Court had the advantage of observing the demeanor of the witnesses---If the Appellate Court was to take a different view then it should have given cogent reasons for doing so which were lacking in the present case---High Court having reached the conclusion that there was sufficient prosecution evidence brought on record, there was no justification of recording of acquittal of the accused merely on the ground that neither ransom money was paid nor said demand was made by the accused; this too was in contradiction with the evidence of prosecution witnesses---Demand of ransom attracted the ingredients of S.365-A, P.P.C. which prescribed that even demand of ransom amount was sufficient to bring the case in its ambit---One of the ingredients of S.365-A, P.P.C. was simple demand of ransom amount for the release of abductee which was fully attracted in the present case---Impugned judgment was not only perverse, arbitrary but was based on misreading, non-appreciation of evidence and was also contrary to record---Supreme Court allowed appeal against acquittal and set aside the judgment of High Court; conviction and sentence recorded by the Trial Court were restored---Accused, in pursuance of bailable warrants issued by Supreme Court was arrested and remanded to custody and jail authorities were directed to keep him in confinements till he served out the sentence.

Dhani Bux alias Danoo and 2 others v. The State 2000 PCr.LJ 239 ref.

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

----S. 365-A---One of the ingredients of S.365-A, P.P.C. is simple demand of ransom for the release of abductee.

Dr. Kazi Khalid, Additional A.-G., Sindh for Appellant.

Ghulam Nabi Soomro, Advocate Supreme Court for Respondent.

Date of hearing: 6th April, 2006.

2006 S C M R 1262

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Ch. Ijaz Ahmed and Syed Jamshed Ali, JJ

MUHAMMAD YAQOOB----Petitioner

Versus

BEHRAM KHAN----Respondent

Civil Petitions Nos.22 and 23-Q of 2005, decided on 19th April, 2006.

(On appeal from the order, dated 13-4-2005 passed by the High Court of Balochistan in Civil Petitions Nos.18 and 17 of 2003 respectively).

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

----S. 151---Specific Relief Act (I of 1877), Ss.8, 12 & 54---Constitution of Pakistan (1973), Art.185 (3)---Consolidation of suits---Jurisdiction of Trial Court---Petitioner filed suit for specific performance of agreement to sell, whereas respondent filed counter-suit for recovery of possession and mesne profits---During pendency of both the suits, respondent filed application under S.151 C.P.C. for consolidation of both the suits---Trial Court dismissed the application and stayed proceedings in the suit of respondent---High Court in exercise of revisional jurisdiction allowed petition of respondent and consolidated both the suits---Validity---Where a common subject of claim was in dispute in counter-suits, both the suits had to be consolidated and decided together---Such rule was imperative in order to avoid conflicting decisions---Trial Court ignored the rule as it failed to decide the issue in question and committed error to stay the proceedings of respondent's suit which was rightly rectified by High Court with cogent reasons---Parties in both the suits were same and subject-matter/property was the same---No jurisdictional defect or error of law was pointed out so as to persuade Supreme Court in exercise of Constitutional jurisdiction under Art.185(3) of the Constitution, to interfere with the judgment---Leave to appeal was refused.

Adam Ltd.'s case PLD 1963 Kar. 514 and Nur Elahi's case PLD 1966 SC 708 rel.

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

----S. 151---Consolidation of suits---Object and scope---Consolidation of suits can be ordered by Court in exercise of its inherent jurisdiction---Consent of parties was not the condition precedent for exercise of such powers---Purpose of consolidation is to avoid multiplicity of litigation, to eliminate award of contradictory judgments and to prevent abuse of process of Court---Such purposes are merely illustrative and not exhaustive of the powers of Court; there may be other variety of grounds for which, in the interest of justice Court may be persuaded to consolidate the cases.

Mollah Ejahar Ali's case PLD 1970 SC 173 and Gouranga Mohan Sikdar's case PLD 1970 SC 158 rel.

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

----Ss. 10 & 11---Res sub judice and res judicata, principles of---Scope---Rationale behind Ss. 10 and 11 C.P.C. seems to be based on the principle that multiplicity of litigation should be avoided and no one should be troubled twice for the same cause.

Pakistan Industrial Credit and Investment Corporation Ltd.s' case PLD 1976 Kar. 249 rel.

Petitioners in person.

Nemo for Respondents.

2006 SC MR 1265

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Mian Shakirullah Jan and Syed Jamshed Ali, JJ

THE STATE through Force Commander, Anti-Narcotics Force, Rawalpindi----Petitioner

Versus

KHALID SHARIF----Respondent

Criminal Petition No.397 of 2005, decided on 10th April, 2006.

(On appeal from the judgment/order, dated 31-10-2005 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Miscellaneous No.1031/B of 2005).

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 14 & 15---Bail---Bail applications are to be disposed of on the basis of material available on the record and the Court is required to form a tentative assessment of the evidence available on record.

Behram Khan v. Nasir Ahmad Bacha PLD 1986 SC 118 ref.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 14 & 15---Bail---Affidavits of witnesses exonerating accused after having provided incriminating evidence involving the accused in the offence at investigation stage---Effect---Cases of accused persons, who were involved in the commission of drug trafficking etc., are to be considered carefully by the Court---Witnesses, in the present case, at the time of investigation of the case had furnished incriminating evidence to prima facie conclude that the accused was involved in the commission of offence, falling within the mischief of S.9(c) of the Narcotic Substances Act, 1997---Accused persons, particularly involved in narcotics cases, faced no difficulty in obtaining affidavit from the witnesses, resiling from their previous statements, therefore, while considering the same the Court was required to see facts of each case in its peculiar perspective to ascertain as to whether the accused was involved in the commission of offence or not---Evidence of the witnesses recorded by the police, could not be kept out of consideration on the basis of the affidavits---Order of High Court granting bail to the accused was set aside by the Supreme Court in circumstances.

Munawar Hussain v. The State 1993 SCMR 785; Ajmal Khan v. Liaqat Hayat PLD 1998 SC 97; Muhammad Jahangir Badar v. State PLD 2003 SC 525; Gulzar Hassan v. Ghulam Murtaza PLD 1970 SC 335; Tariq Bashir v. State PLD 1995 SC 34; Razi Khan v. Muhammad Mushtaq 1996 SCMR 984 and Muzaffar Iqbal v. Muhammad Imran Aziz 2004 SCMR 231 ref.

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

----S. 497---Bail---Court is empowered to cancel the bail if the order on the face of it is perverse and has been passed in violation of the principles for grant or cancellation of bail---Practice of making out a "case of further inquiry" by the Court in a vague manner, to make out a case for grant of bail was deprecated by the Supreme Court.

Gulzar Hassan v. Ghulam Murtaza PLD 1970 SC 335 ref.

Ajmal Khan v. Liaqat Hayat PLD 1998 SC 97 and Muhammad Jahangir Badar v. State PLD 2003 SC 525 distinguished.

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

----S. 497---Bail---Court is not called upon at the stage of bail to conduct anything in the nature of preliminary trial to consider the probability of an accused to guilt or innocence, though it is necessary to ascertain as to whether there exits any reasonable ground upon which its belief can be founded that he had been guilty of such an offence.

Gulzar Hassan v. Ghulam Murtaza PLD 1970 SC 335 ref.

Muhammad Jahangir Badar v. State PLD 2003 SC 525 distinguished.

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

----S. 497---Bail---Where the charge had been framed, High Court may have directed for completion of trial by adopting certain modalities.

Muhammad Munir Peracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.

Malik Rabnawaz Noon, Advocate Supreme Court and Ch. Arshad Ali, Advocate-on-Record for Respondent.

Date of hearing: 10th April, 2006.

2006 SC MR 1274

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

MUHAMMAD SAEED----Petitioner

Versus

YOUSUF and another----Respondents

Cr.P.L.A. No.35-K of 2005, decided on 3rd October, 2005.

(On appeal from the judgment of High Court of Sindh at Karachi, dated 26-4-2005 passed in Criminal Appeal No.30 of 2003 and Confirmation Case No.1 of 2003).

Penal Code (XLV of 1860)---

----Ss. 302 & 337-F(I)---Constitution of Pakistan (1973), Art.185(3)---Petitioner (Complainant) was aggrieved by judgment of High Court upholding conviction of accused, but altering his death sentence to life imprisonment---Petitioner's grievance, was confined to the mitigation of sentence in respect of accused---Contention of petitioner was that order of High Court suffered from misconception of law and misconstruction of evidence while expressing the opinion that there was no pre-meditation for the commission of Qatl-i-Amd on the part of accused or that incident took place at the spur of moment---Leave to appeal was granted by the Supreme Court to consider, whether High Court was legally justified in mitigating capital sentence passed against accused and High Court correctly appreciated evidence in line with principles laid down for safe dispensation of justice in criminal cases.

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

Nemo for Respondent No.1.

Dr. Qazi Khalid Ali, Additional Advocate-General, Sindh with Respondent No.2 on Court notice.

Date of hearing: 3rd October, 2005.

2006 S C M R 1275

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J. Mian Shakirullah Jan and M. Javed Buttar, JJ

Haji MUHAMMAD AYUB KHAN AFRIDI and others----Appellants

Versus

SPECIAL APPELLATE COURT, PESHAWAR and others----Respondents

Civil Appeals Nos.1918 and 1919 of 2002 and Civil Petition No.280 of 2001, decided on 29th March, 2006.

(On appeal from the judgment/order, dated 14-12-2000 passed by Peshawar High Court, Peshawar in Writ Petitions Nos.627 of 1995 and 1275 and 1276 of 1996).

(a) Prevention of Smuggling Act (XII of 1977)---

----Ss. 31 & 42---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by the Supreme Court, inter alia, to examine the questions as to whether there were no reasons on which the notice issued under section 31 of the Prevention of Smuggling Act, 1977 was based and what was the legal implication if no reasons were stated in the said notice; that the notice under section 42 of the Prevention of Smuggling Act, 1977 was not served as required under the law; that the petitioners were not notified the date on which effective proceedings were conducted against them and that the provisions of section 32(1) of the Act had not been complied with.

(b) Prevention of Smuggling Act (XII of 1977)---

---Ss. 32, 31, 39 & 42---General Clauses Act (X of 1897), S.27---Constitution of Pakistan (1973), Arts.185 & 185(3)---Notice under S.31, Prevention of Smuggling Act, 1977 to the accused and his relatives/ associates---Mode of service---Discretion of Special Judge---Scope and extent---Valid service---Principles---Accusation of acquiring the property by smuggling---Proof and determining factors.

Section 42 of the Prevention of Smuggling Act, 1977 has allowed mode of service of notice by means of registered post to the persons on whom it is required to be served or, if such service is not possible, by affixing it on a conspicuous place or part of the premises of such person where he last resided or carried on business or personally worked for gain, or by any other mode as the Special Judge or the Special Appellate Court may direct. In exercise of powers conferred by this section the Special Judge enjoys powers to adopt the methods specified therein, separately or collectively and also to follow any other mode as is directed by him for effecting service. There is no bar upon the Special Judge for effecting service upon the person/persons, to whom notices have been given, calling upon him/them to show cause as to why the whole or any part of such property acquired by him or them, belonging to him or in the name of any of his relatives or associates, which is reasonably suspected to be acquired by smuggling, be not forfeited. Such powers are very familiar in the judicial system prevailing in this country, as there are some other laws as well like Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. Under section 9(3) of this Act, Banking Court was authorized to serve plaint on the defendant through the bailiff or process-server of the Court by registered post acknowledgement due by courier and by publication in one English language and one Urdu language daily newspapers and service duly effected in any one of the aforesaid modes shall be deemed to be valid service for the purpose of this Act. Section 42 of the Prevention of Smuggling Act, 1977 seems to be more comprehensive than the laws referred to hereinbefore as it gives a discretion as well to the Special Judge to adopt any other mode of service, other than notified therein. The legislature, to expand the scope of exercising discretion, instead of using the word "and" has used the word "or". The word "or" has been employed which authorizes the Court to adopt alternatively any of the modes specified therein, simultaneously, because with reference to context at times, word "or" can also be used conjunctively. The word "or" has been described as "OR" is a conjunction; disjunctive and correlative, used to connect co-ordinate words, phrases or clauses, i.e. expressions having the same grammatical construction. Word "or" has, prima facie, an alternative significance but not that it never means "and".

Service of notice upon the relatives/associates of the appellants had not to be effected after recording of evidence in respect of a person against whom information has been laid of holding property which is reasonably suspected to be acquired by smuggling, in view of the provisions of section 31(3) of Act, 1977, which provides that where a notice under subsection (1) issued to any person specifies any property as being held on his behalf by any of his relatives or associates, a copy of the notice shall also be served upon such relative or associate. Scheme of law under section 31(1) and (3) abundantly makes it clear that the relatives/associates of such person have to be joined in the proceedings simultaneously.

The Special Judge had discretion to adopt any of the modes mentioned in section 42 of the Prevention of Smuggling Act, 1977 or follow all the modes, simultaneously, besides effecting service by any other mode mentioned therein. The wisdom behind is that the person to whom notice had been issued must be informed by adopting more than one means of service. This is not only for the person who has acquired the property by smuggling but relatives/associates as well, because generally in such-like cases, the property is transferred by such persons to their relatives or associates, with a view to save themselves from criminal or civil liability, in future.

Appellant and others, in the present case, had not denied that they were living at the addresses on which the notices were served upon them. In this behalf report of the process-server indicates that he succeeded in establishing contact with all of them at one place, although appellant was not present at his home but remaining persons declined to accept the notice, therefore, the contents of the same were read over to them and original notice was fixed on the door. In this manner, denial to accept the notice tantamount to acquiring the knowledge about the proceedings and affixation of original notice at the door of their home would be deemed to be service upon all of them, including the appellant, because it was nobody's case whether affixation took place or not. Likewise, publications appeared in both the newspapers and the service in registered cover, sent to them including appellant by post, would be deemed to be a, valid service.

Under section 27 of the General Clauses Act, 1897 the service by post is deemed to be effected properly, unless contrary is proved. In this behalf, the appellant has never categorically pleaded anywhere that the service by post was also not effected, therefore, the service would be deemed valid to all intents and purposes.

Section 32(1) of the Prevention of Smuggling Act, 1977 conceives a situation where a person is holding property which is reasonably suspected to be acquired by the smuggling and his relatives/associates, holding the property on his behalf, therefore, they are also to be joined in the proceedings. Provisions of section 32(1) of the Act, 1977 are to be read along with section 31(3) of the Act, 1977. Admittedly, in the present case, contents of the notice indicated that the copies of the same were also endorsed to them and one of them had filed writ petition before the High Court; challenging the same. Therefore, as the proceedings were initiated on the basis of information received by the Special Judge, passed on to him on having gone through the evidence produced before him to initiate action against the appellant. As the list of the properties produced before the Court contained the names of some of the respondents, therefore, they were bound to contest the notice if they were holding the properties in their own right and once on the basis of evidence produced before the Court, notices have been issued, simultaneously to such persons, who had acquired the property by smuggling and his relatives/associates on whose behalf the property existed, though not holding that in their own rights but as retainer on behalf of the person, to whom notice had been issued under section 31(1) of the Act, 1977, they were bound to offer explanation about the forfeiture of the property by the Federal Government on receipt of notice. Surprisingly, in the present case, no one had appeared for the reasons best known to them, despite notice served upon them, except one who instead of filing reply to notice, challenged the same by filing writ petition. Ultimately, when the matter had been decided against them they filed an appeal within 30 days, as envisaged under the law, which would mean that they had a notice about the proceedings against them, otherwise, there was no event available to them to file appeal within 30 days, if at all they had not been served. In fact, the properties vested in the name of appellant. This fact could be substantiated by making reference to the order passed by the Special Judge on the application under section 39 of the Act, 1977. Although this order was against all the appellants but they did not bother to challenge the same, except appellant before the appellate forum, which had dismissed his appeal and against this order a Civil Petition for leave to appeal was also disposed of by the Supreme Court. It indicated that as far as the other appellants were concerned, they had no vested right, otherwise, they would have jointly filed appeal before the Special Judge along with appellant.

Conclusion was drawn against the appellant on the basis of the material placed before the Courts. If there was some technical error in conducting the proceedings or recording of evidence, etc., it would not be fatal in view of the fact that sufficient material is available on record to hold that the property was acquired by appellant in his own name as well as in the names of other relatives/associates by smuggling, to whom notices were also issued and as all the forums below, on having taken into consideration the material on record, had expressed their opinion against the appellants, therefore, no interference in such concurrent findings of fact was called for.

Ahmed Khan v. Muhammad Qassim 2002 SCMR 664; Words and Phrases, Permanent Edition Vol.30 page 55; Shri Govindlalji v. State of Rajasthan AIR 1963 SC 1638; C.E. Gibban v. Pakistan PLD 1957 (W.P.) Kar. 956; and Amir Din v. Muhammad Siddique 1982 SCMR 354 ref.

Khawaja Haris Ahmed, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Appellants (in both cases).

Respondents Nos.l and 2: Ex parte.

Dr. Babar Awan, Advocate Supreme Court, Ejaz Muhammad Khan and M.S. Khattak, Advocate-on-Record for Respondent No.3.

Mrs. Naheeda Mehboob Elahi, Deputy Attorney-General of Pakistan for the State.

Date of hearing: 29th March, 2006.

2006 SC MR 1287

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Tassaduq Hussain Jillani and Raja Fayyaz Ahmed, JJ

Mst. ITRAT ZAHIDA and others----Petitioners

Versus

PRESIDENT, A.B.L. and others----Respondents

C.P. No.635-L of 2005, decided on 11th May, 2006.

(On appeal from the judgment of the Lahore High Court, dated 9-3-2005 passed in R.P. No.9 of 2005).

Civil Procedure Code (V of 1908)---

----O. XXII, Rr. 1 & 2---Constitution of Pakistan (1973), Art.185(3)---Abatement of proceedings---Survival of action---Determination---Service/civil rights, enforcement of---Predecessor-in-interest of petitioners was employee with respondent bank who was dismissed from service on the allegation of misconduct---Labour Court set aside order of dismissal but Labour Appellate Tribunal allowed the appeal of bank and restored order of dismissal---Order of Labour Appellate Tribunal was assailed before High Court in constitutional petition which was dismissed solely on the ground that the employee had died during pendency of the petition---Plea raised by petitioners was that the proceedings could not have abated on account of death of their predecessor-in-interest---Validity---Question whether after death of plaintiff or petitioner, proceedings would abate primarily depended on the nature of cause of. action---Any "action" might abate on the death of a party but cause of action might survive his death---"Death" in such context did not mean a civil death---Irrespective of the nature of proceedings whether criminal or civil, it was the nature of cause of action which could determine its survival---Predecessor-in-interest of petitioners was seeking enforcement of his service/civil rights---Labour Court having considered the entire evidence led during departmental proceedings set aside order of dismissal from service and reinstated him-Labour Appellate Tribunal set aside judgment of Labour Court and the same had been challenged through constitutional petition---If constitutional petition had been allowed, the order of Labour Appellate Tribunal would have been set aside and order of Labour Court reinstating the predecessor-in-interest would have been restored---Even after the death of the employee, legal heirs would have inherited pensionary benefits in such eventuality---Constitutional petition could not have abated in circumstances and legal heirs had a right to be impleaded as a party and to pray for a decision on merits---Supreme Court converted petition for leave to appeal into appeal and remanded the matter to High Court for deciding constitutional petition afresh.

Fix v. Philadelphia Barge Co. 290 US 530, 78L ed 481, 54 S Ct 270; American Jurisprudence Second Edition; Said Dass v. Devi Dass and others AIR 1973 Jammu and Kashmir 70 and Bondada Gajapathi Rao v. State of Andhra Pradesh AIR 1964 SC 1645 rel.

Ch. M. Anwar Khan, Advocate-on-Record for Petitioners.

Fiaz-ur-Rehman, Advocate-on-Record, Naeem Ahmed, A. V . P. , ABL for Respondents.

Ch. Aamir Rehman, Additional Advocate-General, Punjab on Courts' call.

Date of hearing: 26th April, 2005.

2006 S C M R 1292

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J. Mian Shakirullah Jan and Syed Jamshed Ali, JJ

Raja MUHAMMAD IRSHAD----Petitioner

Versus

MUHAMMAD BASHIR GORAYA and others----Respondents

Criminal Petition No.122 of 2005, decided on 14th April, 2006.

(On appeal from the judgment/order, dated 21-2-2005 passed by Peshawar High Court, Abbottabad Bench in Criminal Miscellaneous No. 385 of 2004).

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

----S. 497(1)---Bail---While considering the request of the accused for his release on bail, a deep appreciation of evidence is not called for and the Court seized of the matter in terms of S.497(1), Cr.P.C. is required to make tentative assessment of evidence available on record.

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

----Ss. 497(1), 498 & 164---Bail---Matters which the Court can consider at bail stage---Contradictions in F.I.R. and confession cannot be discarded at bail stage---Confession under S.164, Cr.P.C. cannot be brushed aside because its voluntariness and truthfulness shall be taken into consideration by the Court at the time of trial---"Confessional statement" of co-accused which prima facie had connected the accused with the commission of offence could not be termed as "extra judicial confession", and there would be no justification in any manner to discard such piece of evidence at bail stage.

Naseem Malik v. The State 2004 SCMR 283 ref.

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

----Ss. 302, 324, 129, 120-B & 34---Criminal Procedure Code (V of 1898), 5.497---Bail---Abetment---Co-accused in the case had clearly, said that he was hired by the accused to assassinate the deceased---Evidence brought on record, prima facie, had established that conspiracy was hatched by the accused to kill the deceased as relations between both of them had become so strained that if the deceased had succeeded in furnishing before NAB the evidence of financial embezzlement of the funds of the University against the accused, he would have gone behind the bars, thus for such reason, it was not necessary for the accused to be present at the time of incident.

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

----Ss. 109 & ,120-A---"Abetment" and "conspiracy"---Distinction.

State of Andhra Pradesh v. Kandimalla Subbaiah and another AIR 1961 SC 1241; Hulsbery Laws 4th,Edition Vol.11 para.58 page 44; Noor Muhammad Yusuf Momin v. The State of Mahrashtra 1971 SCJ 43 and Bhagwandas Keshwani and others v. State Rajasthan AIR 1974 SC 898 ref.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302, 324, 129, 120-B & 34---Bail, cancellation of---Conspiracy---Abetment---Amalgamating the act of "abetment" with "conspiracy" for commission of offence by the High Court being not legally justified, order of High Court allowing bail, was liable to be set aside for such reason alone.

State of Andhra Pradesh v. Kandimalla Subbaiah and another AIR 1961 SC 1241; Hulsbery Laws 4th Edition Vol.11 para.58 page 44; Noor Muhammad Yusuf Momin v. The State of Mahrashtra 1971 SCJ 43 and Bhagwandas Keshwani and others v. State Rajasthan AIR 1974 SC 898 ref.

Mushtaq Ali Tahirkhaili, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Sardar Latif Khan Khosa, Advocate Supreme Court, Saeed Akhtar, Advocate Supreme Court for Respondents and Muhammad Bashir Goraya (respondent No.1).

2006 S C M R 1302

[Supreme Court of Pakistan]

Present: Rana Bhagwandas Saiyed Saeed Ashhad and Hamid Ali Mirza, JJ

THE STATE through Advocate-General, Sindh----Petitioner

Versus

DAWOOD----Respondent

Cr. P. L. A. No.18-K of 2004, decided on 20th December, 2005.

(On appeal from the judgment of High Court of Sindh. Hyderabad Circuit, dated 22-1-2004 in Criminal Appeal No.170 of 2003).

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

----S. 9(c)---Constitution of Pakistan (1973), Art.185(3)---Trial Court convicted accused, but High Court on reassessment of evidence on record directed his acquittal which had been called in question through present petition---Reasons recorded by High Court did not appear to be sound and were based on surmises and conjectures without the support of law---Leave to appeal was granted to reappraise evidence in order to ascertain whether acquittal of accused by High Court could be sustained and whether there had been no miscarriage of justice by discarding overwhelming prosecution evidence.

Dr. Kazi Khalid Ali, Additional Advocate-General, Sindh and Akhlaq Ahmad, Siddiqui, Advocate-on-Record (absent) for Petitioner.

Nemo for Respondent.

2006 SCMR 1304

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

MUHAMMAD FEROZE and others----Petitioners

Versus

MUHAMMAD JAMAAT ALI----Respondent

C.P.L.A. No.1395 of 2005, decided on 14th March, 2006.

(On appeal from the judgment of Lahore High Court, Lahore, dated 15-2-2005 passed in Civil Revision No.2450 of 2001).

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

----0. XVIII, Rr. 1, 2 & 3---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan (1973), Art.185 (3)---Declaration of title---Concurrent findings of fact by the Courts below---Recording of evidence by Trial Court---Procedure---Recording of evidence in rebuttal after close of defendants' evidence---Suit was concurrently decreed in favour of plaintiff by Trial Court and Appellate Court---High Court in exercise of revisional jurisdiction affirmed the findings of the two Courts below---Plea raised by defendants was that statement of plaintiff in rebuttal was recorded by Trial Court after close of defendants' evidence, which was in violation of O.XVIII, R.3 C.P.C.---Validity---Plaintiff appeared in rebuttal evidence but he was subjected to lengthy cross-examination by defendants without any interruption and without ant protest-In the face of detailed cross-examination on all issues, defendants were not prejudiced by not affording a right of rebuttal, which was neither asked for nor even alluded to---Order sheet reflected that defendants did not propose to lead further evidence and relied upon the evidence already brought on record-- -Trial Court was fair in providing maximum opportunity of adducing evidence to both the parties, to which no exception could be taken---Defendants failed to demonstrate that by adopting such procedure they were prejudiced in any manner---Supreme Court declined to interfere with the judgments and decrees passed by the Courts below---Leave to appeal was refused.

Karamat Hussain v. Muhammad Zaman PLD 1987 SC 139; Shankar v. Krishna AIR 1970 SC 1; Abdul Qayyum v. Ali Asghar Shah 1992 SCMR 241; Gouranga Mohan Sikdar v. Controller of Import and Export PLD 1970 SC 158; Mollah Ejahar Ali v. Government of East Pakistan PLD 1973 SC 173 and Abdul Rehman v.. State PLD 1983 SC 73 distinguished.

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

---Art. 185(3)---New plea---Mixed question of law and fact---When a ground was not raised before High Court, petitioners were legally estopped from raising such plea founded on mixed question of law and fact before Supreme Court, for the first time.

Allah Yar v. Ghulam Jeelani 1996 SCMR 662 and Muhammad Abdus Saleem v. Tanveer Mirza 1996 SCMR 351 rel.

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

---S. 115---Constitution of Pakistan (1973), Art.199---"Revisional jurisdiction" and "Constitutional jurisdiction" of High Court---Distinction---Scope of revisional powers of High Court though circumscribed by reason of excess of jurisdiction, failure to exercise jurisdiction, illegal exercise of jurisdiction, is nevertheless very vast and corresponds to a certiorari and in fact exceeds that at least in two respects inasmuch: firstly, its discretionary jurisdiction may be invoked by the Court suo motu, and secondly the Court may make such order in the case as it thinks fit---Parameters of jurisdiction in civil revision under 5.115 C.P.C. and jurisdiction under Art.199 of the Constitution are distinguishable---Considerations for allowing a civil revision and constitutional petition are altogether distinct.

Kanwal Nain v. Fateh Khan PLD 1983 SC 53 rel.

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

----S. 115---Revisional jurisdiction of High Court---Concurrent findings of fact by the Courts below---Taking of different view---Principles---Such findings cannot be disturbed by High Court in second civil appeal, much less in exercise of revisional jurisdiction under 5.115 C.P.C. unless two Courts below, while recording findings of fact have exercised jurisdiction not vested in them or failed to exercise jurisdiction conferred on them---Scope of interference with concurrent findings of facts by High Court in exercise of revisional jurisdiction is very limited---While examining legality of judgment and decree in exercise of its powers under 5.115 C.P.C., High Court cannot upset finding of fact, however erroneous such finding is, on reappraisal of evidence, and take a different view of evidence---Such finding of fact could only be interfered with by High Court if the Court below had either misread evidence on record or while assessing or evaluating the evidence had omitted from consideration some important piece of evidence, which had direct bearing on the issues involved in the case---Such findings would also be -open to interference where approach of the Courts below was perverse---High Court does not sit in appeal over concurrent judgments of Trial Court and Lower Appellate Court in exercise of revisional jurisdiction---Scope and purview of revision, even though comparable with the powers of appellate Court, is not synonymous with appellate torum in strict sense---Jurisdiction of High Court is limited and restricted to cases where two Courts below have misread evidence or excluded from consideration a material piece of evidence having bearing on facts of a case; where judgment suffered from error of jurisdiction or is based on extraneous considerations; judgments of forums below have violated settled principles of law for appreciation of evidence and lastly where Courts below, while dealing with a particular case, have recorded reasons which can be considered as perverse and whimsical---Concurrent findings of fact can be interfered with by High Court in a civil revision only on the grounds envisaged by law in clauses (a) to (c) of 5.115 C.P.C.

Altaf Hussain v. Abdul Hameed 2000 SCMR 314 and Azizullah v. Gul Muhammad Khan 2000 SCMR 1647 rel.

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

----S. 115---Revision---Concurrent findings of fact by the Courts below---Reappraisal of evidence---Jurisdiction of High Court---Scope---High Court does not interfere with concurrent findings of fact unless such findings fall within the exceptional clauses---Natural corollary that emerges in facts and circumstances of a case would be that in such eventuality High Court is not obliged to reappraise evidence for recording of judgment of approval---Position would be otherwise it High Court proceeds to set aside concurrent findings of two Courts below or accepts or rejects appellate Court judgment.

(f) Civil Procedure Code (V of 1908)--- , ----S. 100---Second appeal---Jurisdiction of High Court---Scope---Jurisdiction of High Court is limited in second appeal, to the extent of interference on a question of law and not on facts.

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

---S. 1I5 & O.XLI, R.27---Revision---Additional evidence---No party is entitled to produce additional evidence in appeal, much less at revisional stage unless considered necessary by the Court.

Gulzarin Kiani, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioners.

Muhammad Munir Peracha, Advocate Supreme Court and Nazir Ahmad Lughmani, Advocate-on-Record for Respondent.

Date of hearing: 14th March, 2006.

2006 SC MR 1314

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Mian Shakirullah Jan and Syed Jamshed Ali, JJ

UNIVERSITY OF HEALTH SCIENCES, LAHORE through Vice-Chancellor and another----Petitioners

Versus

MUHAMMAD ALI KHAN and others----Respondents

Civil Petitions Nos.1817 and 1818 of 2005, decided on 4th April, 2006

(On appeal ,from the judgment, dated 13-5-2005 passed by Lahore High Court, Lahore, Multan Bench in I.C.A. No.93 of 2005).

Educational institutions---

----M.B.,B.S. examination---External examination system---Respondents were students of M.B.,B.S. and were declared fail by External Examiner in one paper of First Professional---Examinees alleged that the External Examiner committed gross illegalities and irregularities in declaring them fail---High Court, in exercise of constitutional jurisdiction, declined to set aside the result but Intra Court Appeal was allowed with direction to the University to declare the result of examinees on the basis of Internal Examination only---Plea raised by University was that High Court had no jurisdiction to bypass. system of examination and result could not be declared on the basis of Internal Examination only---Validity---High Court should not have entered into the controversy with regard to the validity of results unless it was proved that there were gross violations of rules and regulations---If High Court had come to such conclusion then in the interest of justice, instead of directing the University to declare the result on the basis of Internal Examination it should have referred the case to University for the purpose of appointment of other examiner to deal with the cases of examinees, if they had any reservations against the Examiner---High Court had no jurisdiction to direct declaration of result on the basis of Internal Examination only---Supreme Court converted petition for leave to appeal into appeal and remanded the case to High Court for reconsideration---Appeal was allowed---Constitution of Pakistan (1973), Arts.188 and 185(3).

Syed Najmul Hassan Kazmi, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioners.

Mrs. Fakhar-un-Nisa Khokhar, Advocate Supreme Court and M. S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 4th April, 2006.

2006 SC MR 1317

[Supreme Court of Pakistan]

Present: Javed Iqbal and Saiyed Saeed Ashhad, JJ

Sh. MUHAMMAD RAFIQUE GOREJA and others----Petitioners

Versus

ISLAMIC REPUBLIC OF PAKISTAN and others----Respondents

Civil Petitions Nos.2155 and 2563 of 2004, decided on 9th December, 2005.

(On appeal from the judgment, dated 31-8-2004 passed by the Federal Service Tribunal, Islamabad passed in Appeals Nos.824 and 838(L)/CS of 2002).

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

----S. 5(g)---Terms and conditions of appointment of a Judge Accountability Court---Modification of---Terms and conditions of appointment of Judges of the Accountability Courts had been determined by the Supreme Court---Every fair opportunity was afforded to the Judges of Accountability Courts to join service or otherwise after modification in the terms and conditions made pursuant to the directions contained in the Supreme Court judgment---No separate legislation whatsoever therefore, was needed to modify the terms and conditions of appointment of Judges of the Accountability Courts---No injustice whatsoever had been done and even otherwise reasonable indulgence had been shown by the President of Pakistan by waiving the 50% of the amount due on account of oxcess payment made to the Judges of Accountability Courts---Petitions for leave to appeal, being devoid of merits were dismissed.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 fol.

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

----Art. 189---Decision of Supreme Court---Binding nature of---Scope.

The law declared by the Supreme Court is binding on the State and its officers and they are bound to follow it whether the respondents in a particular case were parties or not to the previous petition.

Decisions per incurium do not constitute binding precedent. Such decisions are those which are given in ignorance of the terms of the Constitution or of a statute or of a rule having the force of a statute. Also an order delivered without argument, without reference to the relevant provisions of the Constitution or the Act and without any citation of authority is per incurium. Similarly, decisions sub silentio have no precedental value. Such decisions are those which are given on a point of law not perceived by the Court or present to its mind. Sometimes well considered obiter dicta of the Supreme Court is taken as precedent but every passing expression of a Judge cannot be treated as an authority.

The ultimate responsibility of interpreting the law of the land is that of the Supreme Court. Therefore any decision of the Supreme Court shall, to the extent it decides a question of law or is based upon or enunciates a principle of law, is binding on all other Courts in Pakistan. A decision in suo motu Shariat review petition followed by Supreme Court would be binding on all other Courts in Pakistan. Law declared by Supreme Court becomes the law of the land and is binding not only on all Courts in Pakistan but also on all functionaries of the Government.

Apart from the constitutional obligation as enumerated in Article 189 of the Constitution of Islamic Republic of Pakistan even the propriety demands that all the functionaries of the Government must adhere to the decisions of the Supreme Court and if any direction is given in such decisions that would also be considered as binding on all the Government functionaries and cannot be considered lightly being an integral part of the decision. Even for the sake of argument if it is admitted that the directions given by the Supreme Court qua the terms and conditions of Civil Servants as obiter dictum of the Supreme Court, even then it would be binding in nature because "where the Supreme Court deliberately and with the intention of settling the law, pronounces upon a question, such pronouncement is the law declared by the Supreme Court within the meaning of Art.189 and is binding on all Courts in Pakistan. It cannot be treated as mere obiter dictum. Even obiter dictum of the Supreme Court, due to the high place which the Court holds in the hierarchy of Courts in the country, enjoys a highly respected position as precedent, and is binding on all other Courts, if it contains a definite expression of their Lordships opinion".

T.K.N. Rajgopal v. T.M. Karunanidhi (1972) 4 SCC 267; Municipal Corporation of Delhi v. Gurnam Kaur (1989) 1 SCC 101; State of U.P. v. Synthetics and Chemicals Ltd. (1991) 4 SCC 139; Saiyada Mossarrat v. Hindustan Steel Limited, Bilai Steel Plant (1989) 1 SCC 272; Ali Muhammad v. Mahmoodul Hassan PLD 1968 Lah. 329; Mubinul Haq v. Muhammad Iqbal PLD 1964 Lah..23; Maroof Khan v. Damsar Khan 1992 MLD 21; Salahuddin v. State 1990 PCr.LJ 1221; Malik Muhammad v. Jan Muhammad 1989 CLC 776; Abdul Ghaffar Khan v. Saghir Ahmed Aslam PLD 1987 Lah. 358; Bimla Devi v. Chaturvedi AIR 1953 All. 613; Faiz Bakhsh v. Muhammad Munir 1986 CLC 507; Muhammad Ismail & Sons v. Trans-Oceanic Steampship Co. Ltd. PLD 1966 Dacca 296 and K.P. Doctor v. State of Bombay AIR 1955 Bom. 220 ref.

Khadim Nadeem Malik, Advocate Supreme Court for Petitioners (in C.P. No.2155 of 2004).

Mujeeb-ur-Rehman, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners (in C.P. No.2563 of 2004).

Nemo for Respondents.

Date of hearing: 9th December, 2005.

2006 S C M R 1324

[Supreme Court of Pakistan]

Present: Javed Iqbal and Hamid Ali Mirza, JJ

ASHIQ ALI BHATTI----Appellant

Versus

FEDERATION OF PAKISTAN through Secretary Establishment Division and others--Respondents

Civil Appeal No.117 of 2002, decided on 18th April, 2006.

(On appeal from the judgment, dated 29-1-2001 in Appeal No.716(R)CS of 2000 passed by the Federal Service Tribunal, Islamabad).

Civil service---

----Pro forma promotion---Object and purpose---Entitlement to pro forma promotion---Requirements---Civil servant in the present case, had retired on attaining the age of superannuation on 3-10-1995 as BPS-18 officer; he was promoted in the said grade w.e.f. 17-9-1975 and received all his pension and other dues and benefits till the date of his superannuation dated 3-10-1995; he had made for the first time a representation on 10-9-2000, after the lapse of five years for grant of pro forma promotion and fixation of pay and payment of arrears stating therein that he was entitled to BPS-18 w.e.f. 1986 and move-over to BPS-19 under S.R.O. 1092(I)/95 dated 6-11-1995---Civil servant had not challenged his delayed promotion when others who were juniors to him, were promoted in 1996---Validity---Retrospective pro forma promotion in respect of retired officer was not admissible under the Rules---Principles.

Government of Pakistan through Establishment Division Islamabad and others v. Hameed Akhtar Niazi, Academy of Administrative Walton training, Lahore and others PLD 2003 SC 110 and Muhammad Saleem Bhatti v. Secretary to Government of the Punjab, Agriculture Department, Lahore and others 1985 PLC (C.S.) 26 ref.

Hafiz S.A. Rehman, Senior Advocate supreme Court and M.A. Zaidi, Advocate-on-Record for Appellant.

Ms. Nahida Mehboob Elahi, D.A.-G. for Respondents Nos.1 and 2.

Mahmood A. Sheikh, Advocate Supreme Court for Respondent No.3.

Date of hearing: 18th April, 2006.

2006 SC MR 1329

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Muhammad Nawaz Abbasi, JJ

MUHAMMAD HUSSAIN----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.344 of 2003, decided on 17th April, 2006.

(On appeal from the judgment, dated 7-5-2003 of Lahore High Court, Lahore passed in Murder Reference No.64 of 1999 and Criminal Appeal No.6-J of 1999).

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

----Art. 185(3)---Penal Code (XLV of 1860), Ss.302(b), 324 & 337-F(i)---Petition for leave to appeal was barred by eighty eight days---Reasons for condonation did not appear to be either true or plausible---Application also did not furnish any explanation for the delay of each and every day---Condonation could not be allowed in routine.

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

----Ss. 302(b), 324 & 337-F---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Prosecution had proved its case against the accused beyond any shadow of reasonable doubt, and the occurrence had also been admitted by accused in his statement under S.342, Cr.P.C.---Accused had appeared as his own witness under S.340(2), Cr.P.C. but did not produce defence evidence---Occurrence was admitted but the version was changed---Supreme Court, by way of abundant caution, sifted as to which version was plausible and inferable from the prosecution evidence and whether any plea favourable to the accused was available to him even it not pleaded specifically, notwithstanding the fact that, in the present case, the accused had come out with a specific plea giving a parallel story---Evidence of the prosecution when placed juxtaposed to two statements of the accused indicated nothing but an effort of the accused to achieve some concession in the sentence, knowing very well that the prosecution case had been proved otherwise and parallel version was introduced for the said object only---Such defence was not sufficient and forceful enough to dislodge the unimpeached version of the eye-witnesses, especially the injured one whose injuries were admitted to have been caused by the accused---Parallel story advanced by the accused being implausible, Supreme Court declined to bring the same under consideration for mitigation of sentence in a case where two murders had been committed in addition to abortive attempt at the lives of two others---Accused had acted in a highly desperate manner justifying no leniency---Petition for leave to appeal was dismissed.

Arshad Ali Chaudhry, Advocate Supreme Court for Petitioner.

M. Ilyas Mian, Advocate Supreme Court for the State.

Date of hearing: 17th April, 2006.

2006 SC MR 1334

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J. Mian Shakirullah Jan and Syed Jamshed Ali, JJ

FAZAL ULLAH SIDDIQUI----Petitioner

Versus

THE STATE----Respondent

Criminal Appeal No.62 of 2003, decided on 28th April, 2006.

(Against the order, dated 18-10-2002 passed by Sindh High Court, Karachi in Accountability Appeal No.22 of 2002).

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

----S. 10---Constitution of Pakistan (1973), Art.185(3)---Corruption and corrupt practices---Punishment---Leave to appeal was granted to reappraise the entire evidence particularly, with regard to the culpability of the accused a public servant, and in order to ascertain as to whether the procedure followed by the accused could have made him responsible for the offence under S.10, National Accountability Ordinance, 1999.

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

----Ss. 9, 10 & 14---Corruption and corrupt practices---Accused a public servant, had not acted in good faith---Nothing done without due care and caution could be accepted as having been done in good faith---Such principle though has the statutory backing by virtue of S.52, P.P.C., yet trial of the accused in the present case, having been held under National Accountability Ordinance, 1999, said principle may not be stricto senso applicable to the trial under the Ordinance yet the principle is well recognized in the administration of criminal justice.

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

----Ss. 9(vi), 10 & 14---Constitution of Pakistan (1973), Art.185---Appeal to Supreme Court---Corruption and corrupt practices---Evidence brought on the record read with the presumption under S.14, National Accountability Ordinance, 1999 established the charge against the accused beyond any reasonable doubt---Findings of fact recorded by two Courts below , were based on evidence---Supreme Court declined interference in circumstances.

(d) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(vi), 10 & 14---Constitution of Pakistan (1973), Art.185---Appeal to Supreme Court---Corruption and corrupt practices--Punishment---Mitigating circumstances---Accused, who was Land Acquisition Officer, in the present case, was arrested on 29-5-2001 and was ordered to be released on bail on 19-3-2003, thus he had been confined to the prison for a total period of about 22 months while the High Court had reduced the sentence to 2-1/2 years allowing him the benefit of S.382-B, Cr.P.C.---Accused, in his official capacity had though rendered awards for compensation to landowners but it was in evidence that before making actual payments to the landowners "B" Forms were sent to Director Settlement and Land Record for verification but certain queries were raised by the said office and before those were settled, payment was released to the landowners---Fact remained that actual disbursement, on the basis of the awards rendered by the accused, was made after his transfer from the post of Land Acquisition Officer---Supreme Court held that such being a mitigating circumstance, sentence (including the benefit of S.382-B, Cr.P.C.) already undergone by accused would meet the ends of justice.

Azizullah Sheikh, Senior Advocate Supreme Court for Appellant.

Ch. Naseer Ahmed, Advocate Supreme Court and Arshad Ali Ch. Advocate-on-Record for the State.

Date of hearing: 4th April, 2006.

2006SCMR1343

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Raja Fayyaz Ahmed , JJ

ANWAR KHAN and another----Petitioners

Versus

THE STATE----Respondent

Criminal Petition No.453 and Jail Petition No.454 of 2004, decided on 16th January, 2006.

(On appeal from Peshawar High Court, Peshawar dated 3-11-2004, passed in Criminal Appeals Nos.266 of 2004 and 280 of 2004 respectively).

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

----S. 9(c)---Criminal Procedure Code (V of 1898), 5.164---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Retracted confession---Nothing had been brought on record to suggest that the confession of the accused was the result of coercion, undue influence, torture or it was made by him under the compelling circumstances--Effect---Confessional statement of a person, if was found voluntary and confidence inspiring, must not be discarded for mere reason that it was retracted at the trial; prosecution had produced sufficient direct evidence and even if the confessional statement of accused was excluded from consideration, still the charge against the accused would be proved beyond any doubt; recovery of contraband opium and charas from the vehicle in which accused person and co-accused were travelling was proved through direct evidence and in addition thereto accused had also confessed his guilt before a judicial Magistrate in his statement under S.164, Cr.P.C., therefore, to the extent of accused no exception could be taken to the judgment of the High Court; case of lady accused was distinguishable and she would stand at par to the other lady accused who was acquitted by the Trial Court with the observation that probably she had no conscious knowledge of the narcotic being carried in the vehicle by her co-accused; mere fact that car which was used for the crime, belonged to son-in-law of the said lady accused and she was also travelling in the said car, would not be sufficient to suggest that she had conscious knowledge of narcotics in the car and consequently, the charge against her was not proved beyond reasonable doubt and prosecution had not been able to bring on record any convincing evidence to distinguish her case from that of the acquitted lady accused and prove that she being privy to the crime, was travelling in the car with her co-accused---Supreme Court dismissed the petition for leave to appeal of male accused and converted the petition of lady accused into appeal and set aside the conviction and sentence awarded to the lady accused by giving her benefit of doubt.

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

----S. 164---Confession---Retraction---Nothing had been brought on record to suggest that the confession of the accused was the result of coercion, undue influence, torture or that he was forced to make it under compelling circumstances---Confessional statement of a person, if was found voluntary and confidence inspiring, must not be discarded for mere reason that it was retracted at the trial.

Dr. Babar Awan, Advocate Supreme Court for Petitioner (in Criminal Petition No.453 of 2004).

Nemo for Respondent (in Criminal Petition No453 of 2004).

Tariq Bilal, Advocate Supreme Court for Petitioner (in Jail Petition No.454 of 2004).

M. Bilal, Advocate Supreme Court for the State (in Jail Petition No.454 of 2004).

Date of hearing: 16th January, 2006.

2006 S C M R 1347

[Supreme Court of Pakistan]

Present: Javed Iqbal and Ch. Ijaz Ahmed, JJ

MUHAMMAD ARSHAD and another----Petitioners

Versus

CITIBANK N.A., LAHORE----Respondent

Civil Petition No.1207-L of 2005, decided on 16th February, 2006.

(On appeal from the judgment, dated 30-3-2005 of the Lahore High Court, Lahore, passed in R.F.A. No.923 of 2001).

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

----S. 9---Negotiable Instruments Act (XXVI of 1881), Ss.20 & 118---Constitution of Pakistan (1973), Art.185(3)---Recovery of bank loan---Financing agreement-;-Authenticity---Blank columns---Re-scheduling of loan---Banking Court as well as' Appellate Court decreed the suit in favour of bank and dismissed the appeal respectively---Plea raised by defendants was that at the time of signing of financing agreement many columns were left blank and bank created a fictitious rescheduling agreement just to enhance its claim---Validity---Re-scheduling agreement was not only signed but defendants also affixed their thumb-impressions on its which were never denied---Contention of defendants that the genuineness and authenticity of re-scheduling agreement was not above board as relevant columns were left blank and filled in subsequently by the bank was repelled with observation by the Supreme Court that even if it was admitted, then why the re-scheduling agreement was acted upon and pursuant thereof ten instalments had been paid and outstanding liability was reduced---In fact, instalments were made as per re-payment schedule which was inseparable part of re-scheduling agreement---Main object to get the renewed agreement was restructuring of finance facility and not liquidation of the liability---Re-scheduling agreement was authentic, genuine and executed between the parties and acted upon---No benefit could be given to defendants in view of the provisions of Ss.20 and 118 of Negotiable Instruments Act, 1881, on the ground that the agreement was not completely filled in which executed as it would have no substantial bearing on the validity of the agreement---Signatures on various documents annexed with the plaint were not disputed by defendants which led the Supreme Court to draw the only unescapable conclusion that claim of bank was genuine and based on authentic documents---No illegality or infirmity could be pointed out by defendants in the judgment and decree passed by High Court, which being well based did not warrant interference--Leave to appeal was refused.

Muhammad Sarfraz Khan Rana v. Government of the Punjab PLD 1990 Lah. 88; M.P. R.M. Irulandi Mudaliar v. Syed Ibrahim AIR 1962 Mad. 326; National Bank of Pakistan v. Azizullah Hassan 1984 MLD 1035; Messrs Mach Knitters (Pvt.) Ltd. v. A.B.P. 2004 CLD 535; Iftikhar Hussain Khan of Mamdot v. Ghulam Nabi Corporation PLD 1971 SC 550; United Bank v. Business investment Ltd. 1982 CLC 1101; Karim v. Zikar Abdullah 1973 SCMR 100; National Commercial Bank Ltd. v. Muhammad Younus Butt 1980' CLC 90; Chandan Lal v. Messrs Amin Chand Mohal Lal AIR 1960 Punjab 500 and Sundar Singh v. Khushi Ram AIR 1927 Lah,. 864 ref.

(b) Negotiable Instruments Act (XXVI of 1881)---

----S.20---Inchoate stamp instruments---Where one person signs and delivers to another, paper stamped in accordance with law, either wholly blank or having written thereon, incomplete negotiable instrument, in order that it may be made, or completed into negotiable instrument, he thereby gives prima facie authority to person who received that paper to make or complete it, as case may be, into negotiable instrument for any amount.

(c) Negotiable Instruments Act (XXVI of 1881)----

---S.118---Presumptions as to negotiable instruments---Section 118 of the Negotiable Instruments Act, 1881 provides that presumptions are attached to negotiable instruments, which, inter alia included that negotiable instrument was made or drawn on such date.

Mahmood A. Sheikh, Advocate Supreme Court for Petitioners.

Nemo for Respondent.

Date of hearing: 16th February, 2006.

2006 S C M R 1352

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi and Saiyed Saeed Ashhad, JJ

JAHANZEB KHAN NIAZI and 4 others----Appellants

Versus

NOOR KHAN and others----Respondents

Civil Appeals Nos.680 and 681 of 2002, decided on 1st February, 2006.

(On appeal from the judgment of Lahore High Court, Lahore, dated 26-3-2001 passed in R.S.As. 103 and 104 of 1986, respectively).

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

----S. 8(2)---Punjab Government Notification No.2280-S dated 18-7-1918---Constitution of Pakistan (1973), Art.185(3)---Right of Pre­emption---Leave to appeal was granted by the Supreme Court to consider, inter alia, contention that through notification No.2280-S dated 18-7-1918 under S.8(2), Punjab Pre-emption Act, 1913, no right of pre-emption existed in Mianwali Town.

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

----S. 8(2)---Punjab Government Notification No. 2280-S dated 18-7-1918---Determination of the boundaries of (Mianwali) Municipal Committee and (Mianwali) Town---Notification issued regarding the inclusion or exclusion of an area from the local limits under the law governing local government may be relevant to determine the character of land situated in the Municipal area but in consequence to such notification, agricultural land is not ipso facto exempted from the operation of pre-emption law unless a separate notification under the Pre-emption Act is issued.

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

----S. 8(2)---Punjab Government Notification No.2280-S dated 18-7-1918---Right of pre-emption---Determination of the boundaries of Mianwali Municipal Committee and Mianwali Town---Right , of pre-emption in the area of Mianwali Town was extinguished vide Notification No.2280-S .dated 18-7-1918 issued under Punjab Pre-emption Act, 1913 but no evidence, in the present case, was brought on record showing the boundaries of Mianwali Town at the time of issue of notification in question and unless the correct factual position regarding the limits of Mianwali Municipal Committee and Mianwali Town, were ascertained the question relating to the pre-emptibility of suit-land could not be properly determined---Existing record did not satisfactorily show that the limits of Mianwali Town and the Municipal Committee were same or not and whether the right of pre-emption in the area of suit-land was or was not in existence at the time of sale---Right of pre-emption in respect of the land situated in Mianwali Town was certainly not exercisable after the issue of notification, under S.8(2), Punjab Pre-emption Act, 1913, but the matter relating to limits of Mianwali Town and the true character of property being purely question of fact, was not properly, appreciated---Supreme Court, therefore, sent the case back to the Trial Court for proper determination of the mixed question of law and fact relating to the pre-emptibility of suit-land.

Allah Wasaya Malik, Advocate Supreme Court for Appellants (in both cases).

Muhammad Munir Peracha, Advocate Supreme Court for Respondents (in both cases).

Date of hearing: 1st February, 2006.

2006 S C M R 1356

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J. Mian Shakirullah Jan and Syed Jamshed Ali, JJ

AHAD SHARIF alias MUHAMMAD AHAD and another----Petitioners

Versus

JAVED TARIQ and others----Respondents

Civil Petition No.2468 of 2005, decided on 12th April, 2006.

(On appeal from the judgment/order, dated 22-9-2005 passed by Lahore High Court, Multan Bench in Writ Petition No.4694 of 2005).

Punjab Local Government Elections Rules, 2000---

----R. 70---Punjab Local Government Ordinance (XIII of 2001), S.152(1)(j)---Constitution of Pakistan (1973), Arts.199, 225 & 185(3)---Election of Nazim and Naib Nazim of Union Council---Disqualification of candidate on account of being bank defaulter---Constitutional petition before High Court---Maintainability---If a statute has prescribed a remedy, normally the same should be adhered to but it does not mean that in a case where the order of election functionary is patently illegal, the High Court would be debarred to exercise its constitutional jurisdiction which is at much higher pedastal than the jurisdiction available to a Tribunal under a subordinate legislation---Petitioner, in the present case, had been adjudged to be a defaulter to occupy the office, therefore, not only the "respondent, who was contesting the election, but any other person could question upon him to show his authority to occupy the office, when he was disqualified under the relevant laws to do so---High Court, under its constitutional jurisdiction had rightly interfered in the order passed by the District Returning Officer, whereby the petitioners were allowed the election.

Election Commission of Pakistan v. Javaid Hashmi PLD 1989 SC 395; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge 1994 SCMR 1299; Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863 and Nazir Ahmad v. Chief Election Commissioner PLD 2002 SC 184 ref.

Dr. Babar Awan, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioners.

Malik Muhammad Qayyum, Advocate Supreme Court, Mian Arshad Latif, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 12th April, 2006.

2006 S C M R 1360

[Supreme Court of Pakistan]

Present: Javed Iqbal and Ch. Ijaz Ahmed, JJ

Lt. Col. (R.) ABDUL WAJID MALIK----Petitioner

Versus

GOVERNMENT OF THE PUNJAB and another----Respondents

Civil Petition No.1215-L of 2005, decided on 14th February, 2006.

(On appeal from the judgment, dated 26-4-2005 of the Punjab Service Tribunal, Lahore, passed in Appeal No.1206 of 2004).

(a) Civil service---

----Post, up-gradation of---Perks and privileges---Entitlement to---Principles---Civil servant has absolutely no right to claim for benefits such as pay, allowances, perks and privileges and pensionary benefits due to up-gradation of post, which can only be conferred in case of promotion of the civil servant to higher grade.

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

----S.4---Constitution of Pakistan (1973), Art.212(3)---Service benefits---Officer on Special Duty (OSD)---Grievance of civil servant was that while posted as OSD, he was not paid extra benefits in shape of deputation allowance, POL charges and residential telephone facility charges---Appeal filed by civil servant was dismissed by Service Tribunal---Validity---No deputation allowance, POL charges and residential telephone facility charges were specified for the post of OSD---Such claim was made in oblivion of the fact that during his posting as OSD no official duty whatsoever was assigned to him and in absence whereof POL and residential telephone facility charges could not be paid as there was no purpose of such payment---Civil servant failed to furnish any reason on the basis of whereof such extra burden on Government exchequer could be justified, when no official duty was assigned to him---No legal right was available to civil servant to have claimed such benefits---Question of infringement of any vested right did not arise---Government employee appointed to a post or grade would be entitled to pay sanctioned for such post---Employee posted as OSD could only claim the sanctioned pay for the post and not other benefits which were not sanctioned for such post---No illegality or irregularity was pointed out by ' civil servant in the judgment passed by Service Tribunal---No question of law of public importance was involved in the matter---Service Tribunal had travelled in the straight furrow of detached and objective thinking and there was no deflection on account of personal bias or ill-will---Leave to appeal was refused.

Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Anisuddin v. Secretary to Government of Sindh, Excise and Taxation Department 1984 PLC (C.S.) 304; Muhammad Aslam v. Auditor-General of Pakistan 1995 PLC (C.S.) 1178; Pakistan v. Mrs. A.V. Issacs PLD 1970 SC 415 distinguished.

(c) Words and phrases---

---"Legal right"---Meaning---Legal right is that which is not only recognizable but also enforceable.

Piran Ditta v. Noor Muhammad PLD 1966 Kar. 618 rel.

(d) Civil service---

---Age of superannuation---Notification of retirement, non-issuance of---Effect---Civil servant retired on attaining the age of superannuation and issuance of notification regarding retirement had no substantial bearing on' the date of retirement---Where competent authority failed to notify the fact of retirement in gazette, such failure did not render retirement without lawful authority.

Muhammad Aslam Khan v. Government of Punjab PLD, 1973 Lah. 120 rel.

(e) Civil service---

---Officer on Special Duty (OSD)---Concept---Ordinarily, a Government employee should not be posted as OSD except under compelling circumstances, exigency of service and in public interest but tenure of such posting should not be more than thirty days---Being purely administrative matter, it falls within the jurisdictional domain of competent authority to exercise its right in the interest of public but it must not be lost sight of that the posting of an employee as OSD would also be an extra burden on government exchequer, as such employee receives salary without rendering any service which cannot be afforded.

Shah Nawaz Marri v. Government of Balochistan 2000 PLC (C.S.) 533 rel.

(f) Civil service---

----Posting---Principles---Question of posting exclusively falls within the jurisdictional domain of competent authority but such discretion must not be exercised in an arbitrary or fanciful manner but judiciously and in accordance with settled norms of justice, equity and fair play---Government was duty bound that while exercising such discretion, requirement of job, nature of duties, requisite capabilities and know-how for its performance, qualifications of incumbent, seniority position, general reputation and Annual Confidential Reports must be considered and there should be no extraneous consideration and political pressure.

Shah Nawaz Marri v. Government of Balochistan 2000 PLC (C.S.) 533 ref.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 14th February, 2006.

2006 S C M R 1373

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Raja Fayyaz Ahmed, JJ

FAQIR HUSSAIN----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.246 of 2004, decided on 16th January, 2006.

(On appeal from Lahore High Court, Lahore in Criminal Appeal No.110/J of 1996, dated 20-9-2001).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Medical evidence had supported the ocular account furnished by the quite natural and independent witnesses to the extent of time of occurrence, the nature of injuries and weapons used for causing the injuries to the deceased; blood-stained Churri which was used as weapon of offence, was recovered at the instance of accused; motive set up by the prosecution was proved through highly reliable evidence of eye-witnesses; eye-witnesses had no personal grudge, enmity or motive to substitute accused for unknown culprit and they while deposing quite consistently in a straightforward manner had also corroborated each other on each material point and further their testimony was also supported by the medical evidence as well as the attending circumstances which were relied- upon to maintain the conviction and accused had not been able to point out any misreading or non-reading of evidence or any legal or factual infirmity in the conclusion drawn by the two Courts below regarding the guilt of accused calling for interference by the Supreme Court and no exception could be taken to the, judgment of High Court---Petition for leave to appeal being without any substance, was dismissed in circumstances.

Syed Ali Hassan Gillani, Advocate Supreme Court of Petitioner.

Tariq Bilal, Advocate Supreme Court for the State.

Date of hearing: 16th January, 2006.

2006 S C M R 1376

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Saiyed Saeed Ashhad and Hamid Ali Mirza, JJ

A.R. AWAN and others----Petitioners

Versus

CITY DISTRICT GOVERNMENT, KARACHI and another----Respondents

Cr.Ps.L.A. Nos.62 to 64-K of 2005, decided on 20th December, 2005.

Sindh Local Government Ordinance (XVII of 1979)---

----S. 100(2) & Sched VI, Part II---Criminal Procedure Code (V of 1898), S.417---Constitution of Pakistan (1973), Art.185(3)---Licence fee---Violation of petitioners of Cls.2, 29 & 31 read with Item No.59 of Part II, Schedule VI of the Sindh Local Government Ordinance, 1979---Petitioners were acquitted by the Special Magistrate---High Court, while upholding order of acquittal, had determined the scale of fee payable by petitioners and left it open to the discretion of authorities to determine the same and collect it accordingly---While determining scale of licence fee in appeals against acquittal, High Court had acted beyond its jurisdiction as it was not competent to determine question of rate of licence fee in such proceedings and should have left that question for examination by the Authority concerned---Important question of law of public importance having been raised in the petition, leave to appeal was granted by Supreme Court to consider whether impugned judgment of High Court could be sustained at law.

Abdul Hafeez Lakho, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Petitioners (in all petitions).

Nemo for Respondents.

Date of hearing: 20th December, 2005.

2006 S C M R 1378

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Muhammad Nawaz Abbasi, JJ

MUHAMMAD RIAZ and 2 others----Petitioners

Versus

THE STATE----Respondent

Jail Petition No.244 of 2005, decided on 28th April, 2006.

(On appeal from the judgment, dated 26-4-2005 passed by Peshawar High Court, Peshawar in Criminal Appeal No.363 of 2004).

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

---S. 9(c)-Constitution of Pakistan (1973), Art.185(3)---Punishment---Sentence, reduction in---Three accused involved in the offence, one male and two females---Contention of the accused persons was that evidence on record showed opium and Charas allegedly recovered from the possession of the accused was in the form of slab being not more than one Kg., the samples of Charas and opium prepared for Chemical Examiner, pertained only to one Kg. of Charas and one Kg. of opium received from each female accused and as per report of Chemical Examiner, two Kgs. of narcotics would be deemed to have been recovered from the possession of each female accused therefore, the sentence of life imprisonment was excessive---Validity---Perusal of record showed that Trial Court as well as the High Court, without taking notice of the defect in the prosecution case, proceeded to determine the quantum of punishment on the basis of allegation of recovery of narcotics more than 10 Kgs. from each female .accused and consequently, sentence of life imprisonment was awarded to all the three accused with the consideration that they were found transporting about 23 Kgs. of narcotics whereas the detailed analysis of the evidence would lead to an irresistible conclusion that only 4 Kgs. of Charas and opium was proved as narcotics and further that female accused were carrying narcotics with them at the instance of male accused who was accompanying as guard being main beneficiary of the narcotics---Supreme Court, while taking into consideration that out of total recovered Charas and opium, a quantity of two Kgs. of Charas and two Kgs. of opium was proved as narcotics, maintained the conviction of accused under S.9(c), Control of Narcotic Substances Act, 1997 with fine imposed upon them but keeping in view the circumstances of the case in totality, reduced their sentence of imprisonment---Petition for leave to appeal was converted into appeal and allowed with reduction in sentence of male accused to 14 years' R.I. and the female accused R.I. for 10 years each accordingly.

Sardar Abdul Majeed, Advocate Supreme Court for Petitioners.

M. Saeed Khan, Additional Advocate-General for the State.

Date of hearing: 28th April, 2006.

2006 S C M R 1382

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Abdul Hameed Dogar and Saiyed Saeed Ashhad, JJ

COLLECTOR OF CUSTOMS, FAISALABAD and another----Petitioners

Versus

SHAMSUL ANWAR KHAN and others----Respondents

Civil Appeals Nos.265 to 272 of 2001, decided on 18th April, 2006.

(On appeal from the order, dated 29-9-2000 of the Lahore High Court, Lahore, in Review Applications Nos.83 of 2000, 84 of 2000, 85 of 2000, 86 of 2000, 87 of 2000, 88 of 2000, 89 of 2000 and 90 of 2000) .

Customs Act (IV of 1969)---

----Ss. 30, 31 & 31-A---S.R.O. 898(1)/99 dated 4-8-1999-S.R.O. 116(I)/2000 dated 7-3-2000---Rate of duty---Determination---Exemption from the payment of Customs and Sales Tax was allowed by the Government vide S.R.O. No.898(1)/99 dated 4-8-1999 to the import of machinery to Pakistan---Importers, while availing said concession, brought the goods from specified places which reached Pakistan Port on 2-3-2000---Government, in the meanwhile, withdrew the concession vide Notification No.116(1)/2000 dated 7-3-2000 and directed the importers to pay full payment of the customs duty and declared that in case of non-payment of the same, the goods imported by them would be auctioned---Validity---Record showed that importer filed Bill of Entry on 9-3-2000 i.e. after the withdrawal of the concession/exemption and in view of Ss.30; 31 & 31-A, Customs Act, 1969, the date for determining rate and amount of duty applicable to any imported goods was the rate and amount chargeable on the date of submission of the Bill of Entry to concerned authority---Importers, in circumstances, were not entitled to the exemption.

Muhmood A. Sheikh v. The Federation of Pakistan and others Civil Petition No.2427-L of 2000 and Anoud Power Generation Limited and others v. Federation of Pakistan and others PLD 2001 SC 35 ref.

Jawahar A. Naqvi, Advocate Supreme Court for Appellant (in all Civil Appeals).

Ihsanul Haq Chaudhry, Advocate Supreme Court for Respondents (in all Civil Appeals).

Date of hearing: 18th April, 2006.

2006 S C M R 1387

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Muhammad Nawaz Abbasi, JJ

SULTAN MEHMOOD----Petitioner

Versus

THE STATE ----Respondent

Jail Petition No.141 of 2005, decided on 17th April, 2006.

(On appeal from the judgment, dated 6-6-2005 of the Lahore High Court, Rawalpindi Bench passed in Criminal Appeal No.372 of 2000 and Murder Reference No.573 of 2000).

Penal Code (XLV of 1860)---

----Ss. 302, 324/337-F(i) & 337-F(iii)---Constitution of Pakistan (1973), Art. 185(3)-Reappraisal of evidence---Principles---Occurrence had taken place in the residential house of the complainant (wife of the accused); son-in-law and two sons of the lady were living with her in that very house; presence of all the four persons on the spot was most natural phenomena and hence the three eye-witnesses were the natural witnesses of the murder of one of the complainant's son by her husband; son and son-in-law of the complainant were provably injured by pallets from a .12 bore shotgun, being injured witnesses, their presence was all the more fortified; prosecution had examined all the three eye-witnesses against the accused; witnesses had been consistent throughout in supporting the facts having already been narrated in the F.I.R. which, in the given circumstances, was the most promptly lodged report; any chances of false involvement, concoctions and deliberations were altogether excluded; testimony of witnesses could not be shattered at all in the cross-examination; case of prosecution was squarely proved by the mere examination of as many as three eye-witnesses who were most natural and out of whom two were injured bearing the marks of occurrence on their person; testimony, the status and credibility of the eye-witnesses were such that it did not even need corroboration; no doubt witnesses were related to the complainant as well as the deceased but the accused carried the status of being the husband of complainant and stepfather of one witness and the stepfather-in-law of the other; but for the murder of the deceased there was no enmity whatsoever with the accused to the extent of involving him in an offence of capital charge; ocular testimony was fully supported by post-mortem report indicating pallet injuries on the front chest area of deceased, which was further supported by the medico-legal reports of the eye-witnesses who had sustained injuries that could well be caused by natural spread of pellets; distance involved between the assailant and the victims was again relevant in connection with the spread of pellets, seen in view of the site plan where the three victims were standing next and close to each other; further corroboration was sought from the gun recovered at the instance of the accused and the empty of .12 bore matched with the gun and was fired therefrom; accused never denied in his statement under S.342, Cr.P.C. in specific, that at the day, time and place of occurrence, he was not present at all; plea taken by the accused was totally uncorroborated as well as fake; occurrence had not taken at the spur of the moment because on the spot the accused and the victims had grappled with each other and were separated by the complainant (wife of the accused), matter had ended up there but the accused went to his house and again arrived at the spot by fetching a shotgun; second appearance of accused with shotgun was a clear indicator of his premeditated design and the motive, because of previous occurrence on the spot seemed to have aggravated and accused attempted to eliminate, might be the step-son, whom he had already turned out of the house of his mother (second wife of the accused), shot hit the deceased instead which, by all means was a murder of the first degree; accused, in the present case, was the single accused charged by his own wife where the possibility of substitution, in the circumstances, was highly improbable and prosecution version initiated by the witnesses was fully supported by independent evidence as well as strong attending circumstances, including the motive---Courts below had rightly believed the evidence which, at the first instance, did not require corroboration---Prosecution having successfully brought home the guilt to the accused's doorstep, it was a case of premeditated murder and hence required the imposition of normal penalty of death---Petition for leave to appeal was dismissed.

Sh. Mehmood Ahmad, Advocate Supreme Court for Petitioner.

Dil Muhammad Tarar, Advocate Supreme Court for the State.

Date of hearing: 17th April, 2006.

2006 S C M R 1392

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

ALLAH BAKHSH----Petitioner

Versus

THE STATE----Respondent

Criminal Appeal No.227 of 2003, decided on 23rd January, 2006.

(On appeal from the judgment, dated 31-5-2002 of the Lahore High Court, Lahore in Criminal Appeal No.685 of 2000).

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Two versions about occurrence---According to some witnesses it was "Qatal­e-Amd", while the investigating agency found it as "Qatal-e-Khata"-Leave to appeal was granted by the Supreme Court to scrutinize the evidence to reach the conclusion as to which of the two versions was correct.

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

----S. 302(b)---Reappraisal of evidence---Accused had not been able to show any reason for his false implication; when examined his defence plea in juxtaposition to the eye-witness account, eye-witness account seemed to be true as the accused had failed to prove his plea; had the deceased not died as a result of firing by the accused, there was no occasion or reason for complainant, the real brother of deceased, to falsely involve the accused; accused could not be acquitted mainly on the ground that prosecution had not been able to bring on record the report of Forensic Science Laboratory on the factum of recovery of gun from the accused; ocular testimony was found to be trustworthy by the Trial Court as well as the High Court; there appeared to be no inherent defect or material lacuna in the evidence of both the witnesses whose presence at the site had been established beyond any reasonable shadow of doubt; prosecution had fully proved its case by producing cogent and convincing evidence to the extent that it was the accused who fired at the deceased which hit on his chest; though the witnesses were cross-examined at length yet their evidence was not shattered at all; both the eye-witnesses had categorically stated in their statements that the deceased sustained fire-arm injury on his chest and at any event, case of accused was distinguishable and not at par with that of his co-accused since acquitted, therefore, the Trial Court had neither acted illegally nor arbitrarily in extending the benefit of doubt to them (co-accused)---Accused had failed to point out any illegality or irregularity in the impugned judgment warranting interference by the Supreme Court---Appeal was dismissed in circumstances.

M. Javed Aziz Sindhu, Advocate Supreme Court for Petitioners.

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

Date of hearing: 23rd January, 2006.

2006 S C M R 1396

[Supreme Court of Pakistan]

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

MUHAMMAD SABIR----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.412 of 2005, decided on 6th April, 2006.

(On appeal from the judgment, dated 23-9-2005 of Lahore High Court, Bahawalpur Bench passed in Criminal Appeal No.217 of 2001).

Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan (1973), Art.185(3)---Appreciation of evidence---Principles--Accused could not be condemned for the only reason that he took a false plea in defence---Even if a plea is false yet the Court is bound to consider the prosecution evidence in order to prove the guilt of the accused---Prosecution, in the present case, had fully proved its case by producing eye-witnesses along with the supporting evidence in the shape of recovery of Chhuri, the recovery of blood-stained earth, the post-mortem report and the motive, which had become undisputed on account of abortive effort of the accused in shifting the burden upon her sister---Supreme Court, after examining the pros and cons of the case, found that accused had rightly been convicted and sentenced---Petition for leave to appeal having no merit was dismissed by the Supreme Court.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Petitioner.

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

Date of hearing: 6th April, 2006.

2006 S C M R 1400

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and M. Javed Buttar, J

LIAQUAT MUHAMMAD and others----Petitioners

Versus

Messrs HASHMI CAN COMPANY LTD. and others----Respondents

C.P. Nos.741 and 746-K of 2005, 784-K, 779-K, 781 to 785-K of 2005, decided on 25th November, 2005.

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---

----S.O. 11-A---Industrial Relations Ordinance (XXIII of 1969), S.25-A---Constitution of Pakistan (1973), Art.185(3)---Closure of establishment---Retrenchment of employees---Company having obtained order of retrenchment from Labour Court, employees agitated matter before Labour Department which, under the direction of Minister for Labour, carried out inspection of the factory; and vide letter concluded that Tin Manufacturing Department in the company was working with strength of 150 workers---Petitioners, in circumstances preferred application under S.25-A of Industrial Relations Ordinance, 1969 before Labour Court and succeeded in getting order of compensation---Against said order of Labour Court, Company filed appeal before High Court mainly on ground that letter in dispute which was being relied upon was not admissible as its original was not produced and that photostat thereof was not sufficient to grant relief to petitioners---High Court, while agreeing with contention of respondent, set aside order of Labour Court-Validity-Disputed letter of Labour Department relied upon by petitioners being genuine document was acceptable and High Court was not justified in law to refuse accepting same---If genuineness of said letter was doubtful, it could have referred the matter to Labour Court for taking evidence from Labour Directorate to prove genuineness of said letter---High Court could have decided case on merits instead of non-suiting petitioners on technical ground---Supreme Court remanded the case to High Court for deciding the same on merits after taking into consideration the contents of said letter---Impugned judgment was set aside after converting petition for leave to appeal into appeal.

Petitioners in person.

Raja . Shams-uz-Zaman, Advocate Supreme Court for Respondents.

Date of hearing: 25th November, 2005.

2006 S C M R 1403

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Faqir Muhammad Khokhar and M. Javed Buttar, JJ

GOVERNMENT OF PAKISTAN through Additional Secretary Ministry of Finance and 2 others----Appellants

Versus

SANDOZ (PAKISTAN) LIMITED, KARACHI----Respondent

Civil Appeal No.863 of 2000, decided on 19th December, 2005.

(On appeal from the judgment, dated 30-10-1999 of the High Court of Sindh, Karachi passed in C.P. No.D-514 of 1995).

(a) Central Excise and Salt Act (I of 1944)---

----S. 3 & First Schell.---Central Excise Rules, 1944, Rr.7, 9, 52, 236 & 238---Constitution of Pakistan (1973), Art.185(3)---Product "Leucophor"---Chargeability to duty---Laboratory test of such product showing same to be an Optical Bleaching Agent (Flourescent Brightening Agent)---Demand of duty by Revenue after classifying such product on the basis of test report under Entry No.04.03 of First Sched. of Central Excise Act, 1944---Supreme Court granted leave to appeal to consider, whether glazes, luster, lacquers, polishes and their ancillaries in any form would fall within ambit of Entry No.04.03 and were chargeable to excise duty; whether "Leucophor" being of such category would fall within scope of such Entry; whether petitioner had contravened Rr.7, 9, 52, 236 & 238 of Central Excise Rules, 1944; and whether "Leucophor" and "Tinopal CBS-XD" were comparable commodities and would be treated alike.

(b) Central Excise and Salt Act (I of 1944)---

----S. 3 & First Sched.---Constitution of Pakistan (1973), Arts.185(3) & 199---Constitutional petition before High Court---Product "Leucophor"---Chargeability to duty---Laboratory test of such product showing same to be an Optical Bleaching Agent (Flourescent Brightening Agent)---Demand.of duty by Revenue after classifying such product on basis of test report under Entry No.04.03 of First Sched. of Central Excise Act, 1944---High Court in constitutional petition set aside such demand holding product "Leucophor" not a "dye" while relying on its previous decision, wherein product "Tinopal" was found on basis of test reports to be an "Optical Bleaching Agent", "Flourescent Brightening Agent" and not a "dye"---Validity---Revenue, Appellate Authority and Member (Judicial) after scrutinizing entire record/evidence had concluded that product "Leucophor" was a "dye" chargeable to duty under such Entry---No test report was given in the present case showing "Leucophor" not capable of dyeing, while in case of "Tinopal", there existed test reports showing "Tinopal" not capable of dyeing---High Court ought to have relied on findings recorded by Tribunals below and might not have undertaken inquiry and investigation into nature of product---Findings of fact recorded by three forums below were based on evidence and were not suffering from any misreading or non-reading of evidence---High Court in passing impugned judgment had travelled beyond its jurisdiction---Supreme Court accepted appeal and set aside impugned judgment of the High Court in circumstances.

Abdul Saeed Khan Ghori, Advocate Supreme Court and Advocate-on-Record for Appellants.

Muhammad Siddique Mirza, Advocate Supreme Court and Akhlaq A. Siddiqui, Advocate-on-Record for Respondent.

Date of hearing: 19th December, 2005.

2006 S C M R 1408

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

Qazi MUHAMMAD ISMAIL----Petitioner

Versus

DIRECTOR FOOD, PUNJAB, LAHORE and another----Respondents

Civil Petition No.3533-L of 2002, decided on 18th November, 2005.

(On appeal from the judgment, dated 29-8-2002 by the Punjab Service Tribunal, Lahore, in Appeal No.2614 of 2001).

Constitution of Pakistan (1973)---

----Art. 212(3)---Punjab Civil Servants (Efficiency and Discipline) Rules, 1999, R.4(1)(b)(v)---Petition for leave to appeal---Dismissal from service---Petitioner who was a Foodgrain Supervisor, was proceeded against along with others for huge shortfall of wheat procured by them at their centre---In regular inquiry, petitioner was found guilty and on recommendations of Authorized Officer, competent Authority passed order whereby petitioner was dismissed from service along with order for recovery of value of shortfall of wheat to be made from petitioner---Departmental appeal and then appeal before Service Tribunal, was dismissed by impugned judgment---Petitioner had filed petition for leave to appeal against judgment of Service Tribunal---Inquiry Officer and competent Authority had satisfied themselves on the basis of record that petitioner was guilty of the charge---Petitioner had himself given in writing that there was shortfall of wheat stock and that he had prepared a bogus record for fictitious dispatches of bags of wheat---Petition for leave to appeal did not involve any substantial question of law of public importance within the meaning of Art.212(3) of the Constitution so as to call for interference by Supreme Court.

Muhammad Ozair Chughtai, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 18th November, 2005.

2006 S C M R 1410

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Karamat Nazir Bhandari, JJ

HAYAT MUHAMMAD and others----Petitioners

Versus

MAZHAR HUSSAIN----Respondent

Civil Petition No.752 of 2004, decided on 24th February, 2006.

(On appeal from the order, dated 10-3-2004 passed by the Lahore High Court, Lahore in Civil Revision No.30-D of 2001).

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

----S. 115---Revisional jurisdiction---Findings of fact---Interference---Principles---Basically revisional jurisdiction is meant to correct errors of law including jurisdictional errors---If revisional Court finds that the Courts subordinate to it have exercised their jurisdiction not legally and properly, it can legitimately interfere in findings of fact as well as law.

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

----S. 13(3)---Constitution of Pakistan (1973), Art. 185(3)--Right of pre-emption, exercise of---Notice of Talb-i-Ishhad---Proof---Suit and appeal of pre-emptor were concurrently dismissed by Trial Court and Appellate Court on the ground that performance of Talb-i-Ishhad was not proved, as there was no evidence on record---High Court in exercise of revisional jurisdiction set aside the concurrent findings of fact by the Courts below and remanded the case to Trial Court for decision afresh---Validity---Trial Court as well as Appellate Court had wrongly understood the provision of S.13(3) of Punjab Pre-emption Act, 1991---Pre-emptor was required to send the notice through registered post acknowledgment-due wherever postal facility was available---Pre-emptor was not obliged to see that the notice had reached the addressee---Law presumed that if a pre-paid and properly addressed notice was handed over to post office, the same would reach its destination in due course of mail---High Court was right in holding that pre-emptor succeeded to establish performance of Talb-i-Ishhad by sending notice as required by law---Supreme Court declined to interfere with the remand order passed by High Court---Leave to appeal was refused.

?

Abdul Qayum through Legal Heirs v. Mushk-e-Alam and another 2001 SCMR 798; Allah Dad and 3 others v. Dhuman Khan and. 10 others 2005 SCMR 564; Muhammad Nawaz and others v. Muhammad Khan and others 2005 SCMR 710 and Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 ref.

Khuda Bakhsh v. Muhammad Yaqoob and others 1981 SCMR 179 rel.

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

----S. 13---Right of pre-emption---Talb-i-Muwathibat---Details---Pre?emptor is not required to state in detail the manner, the time and place of making Talb-i-Muwathibat; it is suffient if he so observes in the notice as well as in plaint---Pre-emptor cannot be knocked out merely because he failed to furnish details of Talb-i-Muwathibat.

(d) Evidence---

----Minor discrepancies---Effect---Minor discrepancies were not fatal to the testimony of a witness, particularly when considerable period has elapsed in recording of statement.

Azmatullah through L.Rs. v. Mst. Hameeda Bibi and others 2005 SCMR 1201 and Allah Bakhsh and another v. Falak Sher 2004 SCMR 1580 rel.

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

----S. 13(3)---Right of pre-emption, exercise of---Notice of Talb-i-Ishhad---Explanation of each day from the date of Talb-i-Muwathibat---Validity---It is sufficient if notice is sent within the prescribed time---No duty can be cast upon pre-emptor to explain the passage of each date from the date of Talb-i-Muwathibat to the date of notice of Talb-i-Ishhad, provided the same is sent within 14 days.

Ch. Afrasiab Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners.

Gulzarin Kiani, Advocate Supreme Court for Respondent.

2006 S C M R 1415

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi and Saiyed Saeed Ashhad, JJ

ABDUL MAJEED----Petitioner

Versus

GOVERNMENT OF PAKISTAN, through Secretary, Establishment Division and others----Respondents

Civil Petition No.1570 of 2003, decided on 24th January, 2006.

(On appeal from the judgment, dated 20-6-2003 passed by Federal Service Tribunal, Islamabad in Appeal No.676(R)(CS) of 2002).

Civil Servants Act (LXXI of 1973)---

----S. 13(1)(i)---Constitution of Pakistan (1973), Arts.212(3) & 9---Retirement from service by invoking S.13(1)(i), Civil Servants Act, 1973---Scope---Censure is minor penalty, a sort of warning which may not have a serious stigma affecting the service career of a person and in any case the single penalty of censure cannot be considered sufficient for invoking the provisions of S.13(1)(i) of Civil Servants Act, 1973---Principles.

The censure is minor penalty of the sort of warning which may not have a serious stigma affecting the service career of a person and in any case the single penalty of censure cannot be considered sufficient for invoking the provisions of section 13(1)(i) of the Civil Servants Act, 1973. In the present case the order of withholding of one increment of the petitioner, passed in 1979 was not given effect and consequently, it would be deemed that the penalty of stoppage of one increment was waived. In the light of the instructions contained in the guidelines issued by the Establishment Division, two or more penalties imposed upon a civil servant under Government Servants (E&D) Rules, 1973 may provide a ground for his retirement under section 13(1)(i) of the Civil Servants Act, 1973 whereas in the present case, the petitioner was imposed only one penalty of censure and the competent authority, in departure to the instructions of Establishment Division, proceeded to retire him from service. The competent authority may, subject to the fulfilment of the criteria laid down by the Establishment Division, invoke this special provision but the discretionary power provided therein must not be exercised without sufficient material and valid ground. The discretion of the competent authority under this provision of law being not absolute, must not be exercised beyond the wisdom of the legislature and deprive a person from the legitimate right of service. The purpose is that if further retention of a person in service is not useful or is not in the public interest, the competent authority may, in the light of the criteria laid down by the Establishment Division, invoke this special provision but the discretionary power provided therein must not be exercised without sufficient material and valid ground. The discretion of the competent authority under this provision of law being not absolute, must not be exercised beyond the wisdom of the legislature and deprive a person from the legitimate right of service. The purpose is that if further retention of a person in service is not useful or is not in the public interest, the competent authority may, in the light of the criteria laid down by the Establishment Division, exercise this power but the retirement of a person under this provision, just for the sake of exercise of discretion, is not in the spirit and wisdom of law. In the present case, except one penalty of censure, the petitioner had a clean service record and there was no adverse entry or remarks in his ACRs in respect of his responsibility, integrity, reliability, output of work and behaviour with the public or his conduct as civil servant which may bring his case within the ambit of section 13(1)(b)(i) of Civil Servants Act, 1973. The retirement in the normal circumstances may not call for interference but the retirement of a person on whimsical grounds amount to deprive him from the legitimate right of earning which is part of fundamental rights to live in terms of Article 9 of the Constitution and is definitely not in the public interest.

Supreme Court converted the petition into an appeal and allowed the same with direction that appellant shall be reinstated in service but the claim for payment of salary for the intervening period will be subject to the result of the inquiry to be held by the competent authority to ascertain as to whether he was jobless or has been engaged in any service or business. The appellant in support of his claim for payment of salaries, will furnish an affidavit and the competent authority in the light of relevant material, will determine the question regarding his entitlement for the payment of salaries for the period during which he remained out of service.

Fazal Elahi Siddiqui, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioner.

Ms Nahida Mehboob Elahi, D.A.-G. and Raja Abdul Ghafoor, Advocate-on-Record for Respondents Nos.1 to 3.

Date of hearing: 24th January, 2006.

2006 S C M R 1419

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Mian Muhammad Ajmal, JJ

MUHAMMAD ANWAR and 53 others----Petitioners

Versus

MUNICIPAL COMMITTEE, SAHIWAL, and others----Respondents

Civil Petitions Nos.1771-L, 1772-L and 1969-L of 2000, decided on 14th September, 2000

(On appeal from the judgment, dated 13-6-2000 of Lahore High Court, Multan Bench passed in Writ Petitions Nos.4004 and 4190 of 1995).

Colonization of Government Lands (Punjab) Act (IV of 1912)---

----S. 10---Constitution of Pakistan (1973), Art.185(3)---Proprietary rights, grant of---Permission from District Collector---Disputed shops were constructed by Municipal Committee over Government land and were rented out to petitioners through open auction---Petitioners, after execution of rent agreements started paying rent to the. Committee---Subsequently petitioners as well as Municipal Committee approached Board of Revenue for grant of proprietary rights in their favour, as the land was owned by Government---Board of Revenue directed the authorities to prepare a case for sale by private treaty in favour of petitioners, as they had a prior right to purchase the land in question---Municipal Committee assailed the order of Board of Revenue before High Court and in exercise of constitutional jurisdiction, High Court set aside the order passed by Board of Revenue---Validity---Before taking over the land in question, Municipal Committee took necessary permission from District Collector, which was granted, and thereafter, shops were constructed---Petitioners took part in auction proceedings and executed necessary rent agreements in favour of Municipal Committee---For all practical purposes, petitioners were tenants of the Committee and could not set up hostile claim against its right---Dispute, if any, was between Municipal Committee and Board of Revenue---Petitioners had no locus standi to approach Board of Revenue for transfer of disputed land/shops, as the shops were constructed by Municipal Committee and belonged to it---Prima facie it was an irregularity for which Revenue authorities at district level were partly responsible---During pendency of petition, Provincial Government supported Municipal Committee and also submitted various reports to Board of Revenue in that regard---Provincial Government never raised any objection against occupation of land by Municipal Committee or on raising construction thereon and the issue only cropped up at the instance of the petitioners---Judgment passed by High Court was correct and no exception could be taken to it---Leave to appeal was refused.

Mian Saeed-ur-Rehman, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record (absent) for Petitioners (in C.Ps. Nos.1771 and 1772-L of 2000).

Sh. Abdul Majid, Advocate Supreme Court and Rao Muhammad Yousaf, Advocate-on-Record (absent) for Petitioners (in C.P. No.1969-L of 2000).

C.M. Latif, Advocate-on-Record (absent) for Respondents.

2006 S C M R 1425

[Supreme Court of Pakistan]

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

HUSNAIN CONSTRUCTION CO. PVT. LTD. and another----Petitioners

Versus

Syed KHAWAR GARDEZI----Respondent

Civil Petition No.157 of 2006, decided on 2nd May, 2006.

(On appeal from the judgment, dated 29-11-2005 of the Peshawar High Court, Abbottabad Bench passed in F.A.L. No.3 of 2004) .

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 48(1), 46, 44 & 33---Order of restoration of complaint passed by Labour Court which was not in the nature of a decision or judgment as contemplated by S.48(1), Industrial Relations Ordinance, 2002 and did not have the effect of determining the rights and obligations of the parties, was not appealable before the High Court---Principles.

Subsection (1) of section 48 of the Industrial Relations Ordinance, 2002 provides, that the High Court may, on appeal, confirm, set aside, vary or modify the award or decision given under section 46 or 33, a sentence having passed under clause (c) of subsection (4) of section 44 and shall exercise all the powers conferred by this Ordinance on the Labour Court, save as otherwise provided. The petitioner had failed to satisfy as to how an order of restoration of complaint could be treated to be a decision within the meaning of sections 46 or 48 of the Ordinance so as to be appealable before the High Court. Said order passed by the Labour Court was not in the nature of a decision or judgment as contemplated by subsection (1) of section 48 of the Ordinance. It did not have the effect of determining the rights or obligations of the parties. Legislature had not intended each and every order of the Labour Court to be appealable before the High Court.

Muhammad Tariq Tanoli, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners:

Nemo for Respondent.

2006 S C M R 1427

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi and Nasir-ul-Mulk, JJ

ZAFAR IQBAL and another----Appellants

Versus

DIRECTOR, SECONDARY EDUCATION, MULTAN DIVISION and 3 others----Respondents

Civil Appeal No.2522 of 2001, decided on 15h December, 2005.

(On appeal from the judgment of Lahore High Court, Multan Bench, dated 25-11-1998 passed in I.C.A. No.227 of 1998).

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

----Art. 185(3)---Leave to appeal was granted by Supreme Court to consider; whether case of civil servants had received due consideration at the level of High Court both before Single Judge and Division Bench of High Court by keeping in view the requirements which were current in the year, 1988, as also in year, 1992.

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

----S. 8---Notification S.O.R.III-I-13/85, dated 30-7-1992---Promotion---Eligibility---Teaching experience a substitution of qualification---Change in promotion policy---Grievance of civil servants was that before amendment in rules, they were possessing required qualification and experience for promotion but process of promotion was delayed and rules were amended---Plea raised by civil servants was that they could be deemed to be qualified for promotion on the basis of their teaching experience---Validity---Government was always empowered to change promotion policy and domain of Government to prescribe qualification for a particular post through amendment in relevant rules was not challengeable---Notwithstanding fulfilment of required qualification and other conditions contained in rules, promotion could not be claimed as a vested right---Teaching experience in the relevant field without basic qualification, would not be sufficient to declare the civil servants eligible to hold the post in question under the rules---Without fulfilment of the requirement of the qualification prescribed under rules for the post in question civil servants could not claim promotion on the basis of their experience as of right---Unless qualification held by civil servants was declared equivalent qualification for promotion, the civil servants could not, merely on the basis of their experience in the relevant subjects, claim promotion---Appeal was dismissed.

Muhammad Iqbal Khan, Advocate Supreme Court for Appellants.

S. Sajjad Hussain Shah, A.A.-G. for Respondents.

Date of hearing: 15th December, 2005.

2006 S C M R 1432

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, Hamid Ali Mirza and Karamat Nazir Bhandari, JJ

MUHAMMAD FAZIL and others----Petitioners

Versus

THE STATE and others----Respondents

Criminal Petitions Nos.29-K, 30-K, 43-K, 44-K, 45-K, 50-K and 53-K to 56-K of 2004, decided on 12th April, 2006.

(On appeal from the judgment, dated 6-4-2004 passed by the High Court of Sindh Karachi in Criminal Appeals Nos.202 of 1995, 208 of 1995 and 62 of 1996).

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

----Art. 185(3)---Supreme Court Rules, 1980, O.XIII, R.1---Petition for leave to appeal by State against acquitted accused---Delay of 23 days, condonation of---Petitions for leave to appeal by convicts arising out of common judgment of High Court, pendency of---Supreme Court heard all such petitions on merits in circumstances.

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

----S. 302---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Eye-witness had suffered bullet wound and was only lucky male to survive, who clearly recalled details of occurrence---No suggestion of false involvement of accused was made to eye-witnesses---Nothing on record and in testimony of Investigating Officer and other Police Officers was to show that they had falsely involved accused for ulterior motives---Conviction of accused could safely be based on testimony of eye-witnesses---Conviction and punishment awarded to accused were upheld in circumstances.

(c) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)---

----S. 7---Appeal by person convicted in absentia---Maintainability---Such person had option of either surrendering to Trial Court and seeking fresh trial or filing an appeal in High Court, if he felt that evidence recorded against him in absentia would not justify conviction---Such person had equal right of filing appeal and seeking its adjudication on merits---Appeal was maintainable.

Muhammad Ashfaque alias Chief and 18 others v. The State 1998 PCr.LJ 1486 approved

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

----S. 164---High Court (Lahore) Rules and Orders, Vol.III, Chap.13---Confessional statement---Plea of accused persons was that Investigating Officer had obtained their signatures/thumb-impressions on blank papers---Validity---Magistrate had recorded confessions in English without asking accused to be conversant with English or not---Confessional statements were stereotyped having neither any overwriting nor any correction---Confessions were not recorded soon after disclosure to Investigating Officer, but after 6 to 8 days---Such confessions having been retracted required corroboration from independent source for recording conviction---No reliance could be placed on such confession in circumstances.

(e) Criminal trial---

----Recovery of crime weapon from accused---Non-proving use of weapon in occurrence---Effect---Such recovery would not furnish corroboration.

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

----Art. 185(3)---Leave to appeal by Supreme Court against acquittal, granting of---Principles---Leave against acquittal is granted only, if the impugned judgment is either perverse or arbitrary or the conclusions arrived therein cannot be arrived at all---Mere possibility of another finding/conclusion will not entitle a petitioner to claim leave against acquittal.

?

Azizullah Shaikh, Senior Advocate Supreme Court and Akhlaq Ahmed. Siddiqui, Advocate-on-Record for Petitioners (in Criminal Petitions Nos.29 and 30-K of 2004).

Nemo for Respondents (in Criminal Petitions Nos.29 and 30-K of 2004).

Muhammad Sarwar Khan, Additional Advocate-General, Sindh for the State (in Criminal Petitions Nos.43 to 45, 50, 53 to 56-K of 2004).

Nemo for Respondents (in Criminal Petitions Nos.43 to 45, 50, 53 to 56-K of 2004).

Date of hearing: 12th April, 2006.

2006 SC M R 1438

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

Mst. PEERAN BI through L.Rs.----Petitioners

Versus

ABDUL JABBAR and others----Respondents

C.P.L.A. No.458-K of 2003, decided on 4th October, 2005.

(On appeal from the order of High Court of Sindh at Karachi, dated 8-5-2003 passed in C.P. No.S-466 of 2002).

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

----S. 15---Constitution of Pakistan (1973), Arts.185(3) & 199---Ejectment petition---Sub-letting, ground of---Denial of relationship of landlord and tenant between the parties---Ejectment order passed in favour of landlady by the Courts below was set aside by High Court in constitutional petition filed by tenant---Supreme Court granted leave to appeal to consider the question of law as to whether High Court was legally justified to interfere with concurrent findings of fact in exercise of constitutional jurisdiction and whether impugned judgment could sustain in law on reappraisal of record.

M.G. Dastgir, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioners.

Nemo for Respondents Nos.1, 2 and 4 to 6.

K.A. Wahab, Advocate-on-Record for Respondent No.3.

2006 S C M R 1440

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

MUHAMMAD BACHAL and others----Petitioners

Versus

SAINDAD and others----Respondents

Civil Petition No.104-K of 2003, decided on 27th December, 2005.

(On appeal from the orders, dated 1-10-2002 Civil Revision Applications Nos.S-1 of 2002, passed by the High Court of Sindh, Larkana).

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.VII, R.11---Suit for declaration regarding entries in Revenue Record---Rejection of plaint---Plaintiff filed suit for declaration after acceptance of his application by. Board of Revenue for correction of disputed entries---High Court in constitutional petition filed by defendant set aside such order of the Board of Revenue---Plaintiff did not challenge order of High Court any further---Application by defendant under O.VII, R.11, C.P.G. seeking rejection of plaint---Validity---Order of High Court, having not been challenged before Supreme Court, had attained finality---Plaint was rightly rejected in circumstances.

Akhlaque Ahmed Siddiqui, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 27th December, 2005.

2006 S C M R 1443

[Supreme Court of Pakistan]

Present: M. Javed Buttar and Saiyed Saeed Ashhad, JJ

Messrs KARACHI ELECTRIC SUPPLY CORPORATION LTD.----Petitioner

Versus

Messrs S.G. FIBER LIMITED and others----Respondents

Civil Petition No.776-K of 2003, decided on 28th November, 2005.

(On appeal from the order, dated 21-5-2003 passed by High Court of Sindh, at Karachi in C.P. No.D-1974 of 1999).

Electricity Act (IX of 1910)---

----Ss. 14 & 26---Constitution of Pakistan (1973), Art.185(3)---Issuance of bills on average basis being on higher side than actual reading as shown by Check-Meter installed by the Authority itself---Validity---Reading of Check-Meter could prima facie establish average consumption of electricity by petitioner---No reason was given by Authority for increasing average units consumption and for not accepting reading of Check-Meter---Burden was on the Authority to prove that reading shown by Check-Meter was not acceptable for some cogent reason, which burden the Authority had failed to discharge---Nothing was available on record to suggest tampering with Check-Meter by petitioner, which was under exclusive control of the Authority---High Court rightly accepted constitutional petition and set aside the impugned order---Petition for leave to appeal was dismissed by the Supreme Court against the judgment of High Court.

Sohail Rana and Akhlaq Ahmad Siddiqui, Advocate-on-Record for Petitioner.

Izhar Alam Farooqi, Advocate-on-Record for Respondent No.1.

Nemo for Respondents Nos.2 and 3.

2006 S C M R 1446

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, Hamid Ali Mirza and Karamat Nazir Bhandari, JJ

DEPUTY CONTROLLER OF CUSTOMS (VALUATION) and another----Petitioners

Versus

Messrs ABDUL SHAKOOR ISMAIL KALOODI and others----Respondents

Civil Petitions Nos.859-K and 889-K of 2004, decided on 6th April, 2006.

(On appeal from the judgment, 'dated 27-8-2004 passed by the High Court of Sindh, Karachi in C.P. No.D-446 and D-520 of 1994).

Customs Act (IV of 1969)---

----Ss. 25 & 25-B---Inspection and Valuation of Imported Goods Rules, 1990, R.9---Constitution of Pakistan (1973), Art.185 (3)---Customs duty---Pre-shipment assessment---Notification, implementation of---importer filed general manifest on 3-4-1991, regarding the consignment imported by him---Firm of Pre-shipment Inspectors, assessed the duties in terms of its prevailing price report---Duties on four bills of entries were assessed and paid on 10-7-1991, while remaining six bills of entries were filed on 31-7-1991---Customs authorities, on the basis of a notification issued on 14-7-1991, assessed the remaining consignment at the price fixed in the notification---High Court found that as the notification was published in official gazette on 5-8-1991, therefore, bills of entries filed before the date of publication could not be assessed on the price fixed in the notification---Validity---Notification dated 14-7-1991 on the basis of which enhanced duties were claimed was published in official gazette on 5-8-1991, while bills of entries for clearance of consignment were filed on 8-4-1999 and 31-7-1999---Price fixed in the notification dated 14-7-1991 became effective on 5-i-1991 and not earlier---Importer was entitled to claim that the value of consignment be reckoned with at the previous rate---Supreme Court declined to interfere with the judgment passed by High Court---Leave to appeal was refused.

The Province of East Pakistan v. Major Nawab Khawaja Hassan Askary and others PLD 1971 SC 82; Muhammad Ishaq v. Chief Administrator of Auqaf, Punjab PLD 1977 SC 639 and Muhammad Suleman and others v. Abdul Ghani PLD 1978 SC 190 ref.

Akhlaq Ahmad Siddiqui, Advocate-on-Record for Petitioners (in C.P. No.859-K of 2004).

Abdul Hafeez Lakho, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Respondent No.1 (in C.P. No.859-K of 2004).

Nemo for Respondents Nos.2 to 5 (in C.P. No.895-K of 2004).

Abdul Hafeez Lakho, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Petitioner (in C.P. No.889-K of 2004).

Rana M. Shamim, Advocate Supreme Court and A.A. Siddiqui, Advocate-on-Record for Respondent No.3 (in C.P. No.889-K of 2004).

Nemo for Respondents Nos.l, 2, 4 to 6 (in C.P. No.889-K of 2004).

2006 S C M R 1450

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

MUHAMMAD ARSHAD & CO. through Muhammad Arshad----Petitioner

Versus

ZILA COUNCIL, PAKPATTAN SHARIF, through District Nazim Pakpattan Sharif and others----Respondents

Civil Petition No. 1992-L of 2005, decided on 12th October, 2005.

(On appeal from the judgment, dated 21-7-2005 by the Lahore High Court, Lahore, in Writ Petition No.2330 of 2001).

Constitution of Pakistan (1973)---

----Arts. 199 & 185(3)--Dismissal of constitutional petition by the High Court---Constitutional petition which was dismissed for non-prosecution, was restored by High Court on application of petitioner subject to payment of costs---On the date when constitutional petition came up for hearing, it was found that petitioner had not complied with the order of High Court as he had not paid the costs---Even on the date of hearing, neither costs were paid nor any request was ' made by petitioner for extension of time for payment of costs---Orders of High Court having not been complied with by petitioner, his constitutional petition was rightly dismissed---Impugned judgment did not warrant any interference by Supreme Court---Petition for leave to appeal was dismissed.

Mirza Muhammad Aziz-ur-Rehman, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2006 S C M R 1452

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Falak Sher and M. Javed Buttar, JJ

MUHAMMAD BOOTA---Petitioner

Versus

DIRECTOR-GENERAL, ORDNANCE SERVICES, GENERAL HEADQUARTERS, RAWALPINDI and others---Respondents

Civil Petition for Leave to Appeal No.2411(L) of 2000, decided on 8th October, 2004.

(On appeal from the judgment dated 4-7-2000 of the Federal Service Tribunal, Lahore passed in Appeal No.392(L) of 1998).

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

----Rr. 3 & 4---Constitution of Pakistan (1973), Art.212(3)---Discharge from service---Misappropriation of M.T. Stores, charge of---Recovery of stores from a shop of civilian in local market---Dismissal of appeal of civil servant by Service Tribunal---Plea of civil servant was that in fact no misappropriation had taken place as stores confiscated from shop had been returned to its owner---Validity---Civil servant had not raised such plea before Tribunal at the time of hearing of appeal---Such charge had been proved concurrently---No question of law of public importance was involved---Supreme Court dismissed petition and refused leave to appeal.

Mian Mahmood Hussain, Advocate Supreme Court for Petitioner.

Malik Muhammad Pervaiz Akhtar, Dy. A.-G. for Respondents Nos.1 and 2.

Date of hearing: 8th October, 2004.

2006 S C M R 1454

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Sardar Muhammad Raza Khan and Karamat Nazir Bhandari, JJ

ZAFARULLAH and others---Appellants

Versus

THE STATE and 6 others---Respondents

Criminal Appeals Nos.144 and 145 of 1996, decided on 29th October, 2003.

(On appeal from the judgment of the Lahore High Court, Multan Bench, Multan, dated 29-10-1995 passed in Criminal Appeals Nos.331 and 361' of 1991, Murder Reference No.39 of 1992 and Criminal Revision No.161 of 1992).

Penal Code (XLV of 1860)---

----Ss. 302, 324, 452 & 323---Appraisal of evidence---Young boy aged 15/16 years was killed and five persons were injured in the occurrence---Testimony of the two injured eye-witnesses whose presence at the spot was proved by the stamp of injuries on them, was supported by other eye-witness who had no animus against the accused---Ocular evidence was consistent and was supported by the medical evidence of the deceased and the injured prosecution witnesses---Recovery of the respective weapons of offence at the pointation of accused and the reports of the Serologist and Forensic Science Laboratory had fully established their guilt---Courts below on proper appreciation of evidence had rightly convicted and suitably sentenced the convicts and acquitted the other accused---Impugned judgment did not suffer from any legal infirmity---Appeals were dismissed accordingly.

Zafar Iqbal Chaudhry, Advocate Supreme Court for Appellants (in Criminal Appeal No.144 of 1996).

M.A. Zafar, Advocate Supreme Court for private Respondents (in Criminal Appeals Nos.144 and 145 of 1996).

Dil Muhammad Tarar, Advocate Supreme Court for the State (in both appeals).

Date of hearing: 29th October, 2003.

2006 S C M R 1458

[Supreme Court of Pakistan]

Present: Falak Sher and M. Javed Buttar, JJ

GHULAM RASOOL and others---Petitioners

Versus

AHMAD YAR and others---Respondents

Civil Petition No.2307-L of 2000, decided on 26th January, 2005.

(On appeal from the judgment of the Lahore High Court, Lahore dated 19-6-2000 passed in Civil Revision No.1411 of 2000).

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

----S. 96---Limitation Act (IX of 1908), S.5---Constitution of Pakistan (1973), Art.185(3)---Appeal barred by limitation---Condonation of delay---Failure of counsel to inform appellants---Effect---Appellate Court dismissed the appeal being time-barred and the judgment was maintained by High Court in exercise of revisional jurisdiction---Validity---High Court had rightly dismissed the revision on the ground that even if counsel of appellant, who had been appearing on their behalf, had not informed them regarding decision of the suit, under law, it was not sufficient ground for condonation of delay in filing of appeal---Valuable rights had accrued to decree-holder as the appellants did not file appeal well within time---Appellants failed to show `sufficient cause' for not filing the appeal well within time---Appellants had been negligent in defending the suit, hence the Appellate Court had rightly dismissed the appeal being barred by time---Supreme Court declined to interfere in the judgments and decrees passed by High Court as well as by Appellate Court---Leave to appeal was refused.

Ch. Muhammad Ashraf, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 26th January, 2005.

2006 S C M R 1459

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Faqir Muhammad Khokhar, JJ

CHIEF EXECUTIVE PROGRESSIVE PAPERS LIMITED/ CHAIRMAN NATIONAL PRESS TRUST, ISLAMABAD---Petitioner

Versus

SIRAJ-UD-DIN and others---Respondents

Civil Petitions Nos.2974-L of 2003, 3004-L to 3027-L of 7003 along with Civil Petitions Nos. 3100-L to 3102-L of 2003, decided on 7th July, 2004.

(On appeal from the judgment dated 4-10-2003 of the Federal Service Tribunal, Lahore passed in Appeals Nos.1339(L)/1999 to 1367(L) of 1999).

Service Tribunals Act (LXX of 1973)---

----Ss. 2-A & 4---Constitution of Pakistan (1973), Art.212(3)---Appeal before Service Tribunal, filing of---Limitation---Insertion of S.2-A in Service Tribunals Act, 1973---Effect---Matter of the petitioners had been decided by Labour Court and Labour Appellate Tribunal but after the insertion of S.2-A in Service Tribunals Act, 1973, the petitioners were directed by Supreme Court to invoke jurisdiction of Service Tribunal---Appeals filed by the petitioners before Service Tribunal were dismissed being barred by limitation---Validity---Provisions of S.2-A were inserted in Service Tribunals Act, 1973 on 10-6-1997 and thereafter a good number of judgments were pronounced by Supreme Court settling the controversy between the employer and the employee for invoking jurisdiction of Service Tribunal---In view of the law laid down by Supreme Court in the case titled Federation of Pakistan v. Muhammad Siddiq reported as 1980 SCMR 443, it was incumbent upon the petitioners to have approached the Tribunal within reasonable time---Service Tribunal had rightly refused to give relief to the petitioners considering their appeals were barred by time without offering plausible explanation---Judgment of Service Tribunal was not open to any exception---Leave to appeal was refused.

Federation of Pakistan v. Muhammad Siddiq 1980 SCMR 443 rel.

Muhammad Ozair Chaughtai, Advocate Supreme Court for Petitioners (in all petitions).

Sh. Khizar Hayat, Advocate Supreme Court for Respondents (in all petitions).

Date of hearing: 7th July, 2004.

2006 S C M R 1463

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

MUHAMMAD TUFAIL---Petitioner

Versus

ALLAQA JUDICIAL MAGISTRATE and others---Respondents

Civil Petition No.1591-L of 2003, decided on 21st June, 2004.

(On appeal from the judgment dated 16-5-2003 of the Lahore High Court, Lahore, passed in Writ Petition No.6321 of 2003).

Criminal Procedure Code (V of 18918)---

----Ss. 202, 203 & 204---Constitution of Pakistan (1973), Art.185(3)---Non-issuance of process---Household wives---Concurrent findings of facts by the Courts below---Complainant alleged that the respondents had scuffled with him while their co-accused persons had been raising Lalkara---Trial Court issued process against co-accused persons and refused to issue process against the respondents who were household wives---Order of Trial Court was maintained up to High Court---Validity---All the three Courts below recorded concurrent findings of fact after appreciation of evidence that there was no ground for proceeding against the respondents who were ladies---In the ordinary course of things, it did not make sense that the male members would keep on raising Lalkara only leaving it for the household ladies to have scuffle with the petitioner---View taken by High Court in its judgment was unexceptionable---Leave to appeal was refused.

Shoukat Haroon, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 21st June, 2004.

2006 S C M R 1465

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Faqir Muhammad Khokhar and M. Javed Buttar, JJ

MUHAMMAD ASLAM SULTAN---Petitioner

Versus

FEDERATION OF PAKISTAN through General Manager, Pakistan Railways, HQRs., Lahore and another---Respondents

Civil Petition No.2776-L of 2001, decided on 21st December, 2004.

(On appeal from the judgment dated ,1-6-2001 of the Federal Service Tribunal, passed in Appeal No.1077(L) of 1998).

Civil service---

----Promotion after retirement, claim for---Validity---Promotion to a retired civil servant from back date could not be granted.

Government of Pakistan through Establishment Division Islamabad and 7 others v. Hameed Akhtar Niazi 2003 PLC (C.S.) 212 fol.

S.M. Idrees, Advocate Supreme Court and Mehmood A. Qureshi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 21st December, 2004.

2006 S C M R 1466

[Supreme Court of Pakistan]

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

ABDULLAH---Petitioner

Versus

THE STATE and others---Respondents

Criminal Petition No.137-K of 2002, decided on 12th April, 2004.

(On appeal from the judgment, dated 1-7-2002 of the High Court of Sindh, Circuit Court, Larkana, passed in Criminal Appeal No.62 of 2001).

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

----Art. 185(3)---Supreme Court Rules, 1980, O.XIII, R.1---Petition for leave to appeal---Barred by time---Condonation of delay---Non-filing of application for condonation of delay---Effect---Supreme Court dismissed petition being barred by limitation.

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

----S. 302/34---Appreciation of evidence---Accused armed with Lathi neither used same nor participated in crime in any manner---Participation of accused in crime was, doubtful---Accused was acquitted in circumstances.

(c) Criminal trial---

----Acquittal of accused---Finding of acquittal could be interfered with only, where reasons of acquittal were capricious, artificial or speculative in nature.

Muhammad Muzaffarul Haque, Advocate Supreme Court and Faizanul Han Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 12th April, 2004.

2006 S C M R 1468

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Falak Sher, JJ

AMEER AFZAL BAIG---Petitioner

Versus

AHSAN ULLAH BAIG and others---Respondents

Civil Petition No.1991-L of 2003, decided on 21st June, 2004.

(On appeal from the judgment dated 17-7-2003 passed by the Lahore High Court, Lahore in Writ Petition No.6588 of 2003).

Criminal Procedure Code (V of 1898)---

----S. 176---Constitution of Pakistan (1973), Art.185(3)---Exhumation---Object---Respondent suspected that his father. died due to poisoning---Order passed by Magistrate for exhumation and thereafter post-mortem of the dead body was recalled before it was implemented---Appellate Court in exercise of revisional jurisdiction allowed the application and exhumation order was restored---Order passed by Appellate Court was maintained by High Court---Validity---Legal heirs of deceased had a right to get the suspicion removed more particularly when the exhumation by itself could never lead to the involvement of someone unless the post-mortem was conducted and the report was positive---If the report would have been positive, the persons involved were required to be proceeded against---Exhumation and thereafter post-mortem were never tools of investigation which in ordinary course should not be interrupted---After preliminary inquiry, the Magistrate in his first order had found the exhumation to be justified---Appellate Court as well as High Court was of the same opinion hence any interference by Supreme Court was uncalled for---Leave to appeal was refused.

Nazeer Ahmad Ghazi, Senior Advocate Supreme Court with A.H. Masood, Advocate-on-Record for Petitioner.

Ch. M.A. Saleem, Senior Advocate Supreme Court with Muhammad Aslam Ch. Advocate-on-Record for Respondents.

Date of hearing: 21st June, 2004.

2006 S C M R 1470

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Khalil-ur-Rehman Ramday and Fngir Muhammad Khokhar, JJ

MUHAMMAD SADIQ---Petitioner

Versus

MUHAMMAD RAFIQ and others---Respondents

Civil Petitions Nos.314 and 403-L of 2003, decided on 16th June, 2004.

(On appeal from the judgment dated 15-1-2003 of the Lahore High Court, Lahore, passed in Civil Revisions Nos. 1548 and 1459 of 2000).

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

----Ss. 8 & 42---Constitution of Pakistan (1973), Art.185(3)---Declaration of title and recovery of possession ---Ownership, proof of---Concurrent findings of facts by two Courts below-- Respondent claimed to be owner on the basis of registered sale-deed dated 13.8.1946, executed by the original owner and sought recovery of possession of the suit property, while petitioner stated to be the owner on the basis of agreement to sell dated 10.12.1946, executed by son of the original owner and sought declaration to such effect---Suit filed by the respondent was dismissed by the Trial Court and that of the petitioner was decreed---Appellate Court reversed the findings of Trial Court and decreed the suit of the respondent and that of the petitioner was dismissed---Judgments and decrees passed by Appellate Court were maintained. by High Court---Validity---Both the Courts recorded concurrent findings of fact---Petitioner failed to show how the son of original owner, from. whom he was claiming the execution of agreement to sell, was the owner of suit property---No evidence, as strong as that of the respondent, could be produced by the petitioner---Respondent had fully proved the execution of registered sale-deed by the owner---Even agreement to sell executed by the son of the owner was subsequent to the registered sale-deed---Judgment passed by High Court did not suffer from any legal infirmity so as to warrant interference by Supreme Court---Leave to appeal was refused.

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

----S. 145---Dispute over property---Finding of Criminal Court---Scope---Proceedings under S.145 Cr.P.C. were subservient to the determination of civil rights by Civil Courts.

Arif Ch. Advocate Supreme Court for Petitioner (in both petitions).

Ch Mehdi Khan Chohan, Advocate Supreme Court and Ch. Muhammad Anwar Khan, Advocate-on-Record for Respondent No.1.

Sajjad Ahmed (Naib Tehsildar) for Respondent No.2. Ishfaq Ahmed (Patwari) for Respondent No.3.

Date of hearing: 16th June, 2004.

2006 S C M R 1473

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

MUHAMMAD MALIK---Petitioner

Versus

ABDUL SHAKOOR MEMON and others---Respondents

Civil Petitions Nos.2943 of 2004, 115 and 124 of 2005, heard on 28th February, 2005.

(On appeal from the judgment dated 7-11-2004 of the Federal Service Tribunal, Islamabad passed in Appeal No.238(R)CS of 2004).

Civil Servants Act (LXXI of 1973)---

----S. 9---Constitution of Pakistan (1973), Art. 212(3)---Promotion---Entitlement---Respondent who originally was on deputation, was absorbed in the Department on regular basis as Inspector and was promoted as Assistant Director BS-17---Subsequently on issuance of show-cause notice for disciplinary proceedings against him his promotion in B.P.18 was deferred---Petitioner, who otherwise was junior to respondent, was promoted as Deputy Director in BS-18---Appeal filed by respondent was disposed of by Service Tribunal with direction to Departmental Authorities to place his promotion case before appropriate Committee for consideration---Finally Service Tribunal ordered promotion of respondent, against which petitioner and department had , filed petition for leave to appeal---Respondent had submitted that he would have no objection if his case was remanded to Departmental Authority for consideration of, his promotion in accordance with law, rules and instructions on the subject---Service Tribunal, in peculiar circumstances of case, was not justified to order promotion of respondent and his case was required to be remanded to Departmental Promotion Committee for consideration in accordance with law, rules and instructions---Impugned judgment of Tribunal needed to be modified---Petition for leave to appeal was converted into appeal and same was partly allowed---Competent Departmental Authority would consider and decide afresh case of promotion in accordance with law, rules anti instructions within a period of two months.

Mehr Khan Malki, M.A. Zaidi and Ch. Akhtar Ali, Advocates­on-Record for Petitioner.

Abdul Ghafoor Mangi, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 28th February, 2005.

2006 S C M R 1476

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Falak Sher and Tassaduq Hussain Jillani, JJ

AMJAD ALI and another---Petitioners

Versus

THE STATE---Respondent

Criminal Petition No.25-L of 2003, decided on 18th April, 2005.

(On appeal from the judgment dated 28-11-2002 of the Lahore High Court, Lahore passed in Criminal Appeal No.88 of 1998 and Murder Reference No.21 of 1998).

Penal Code (XLV of 1860)---

---- Ss. 302, 460 & 34---Constitution. of Pakistan (1973), Art.185(3)---Petitioner had submitted that complainant who was father of deceased and other alleged eye-witness who ,was brother of deceased, had not witnessed the occurrence as they were away at their respective places of work; that occurrence in question had gone unwitnessed and that it was on account of mere suspicion and as result of fabrication and concoction that accused had been implicated in the crime in question; that F.I.R. had been recorded after an unexplained delay of more than nine hours when Police Station was only four miles away from place of occurrence; that further doubts were available in prosecution case on account of the absence of any blood-stains on the roof of the house of complainant and instead availability of blood stained earth on the roof of the house of a neighbour of the complainant; that motive in a case is a double-edged weapon which could well have led to the false implication of petitioner on account of mere suspicion; that no untoward incident had taken place between parties for more than two years since release of accused on bail in earlier case; that medical evidence was not in consonance with ocular testimony and that occurrence had taken place at the dead of night and had gone unwitnessed---Case, in circumstances, was fit where entire evidence deserved to be reappraised in the light of said submissions made on behalf of petitioners---Leave to appeal was granted.

Inayatullah Khan Niazi, Advocate Supreme Court with Mehmood A. Qureshi, Advocate-on-Record for Petitioner.

Taki Ahmad Khan, Advocate Supreme Court for the Complainant.

Ms Yasmeen Sehgal, A.A.-G. for the State.

Date of hearing: 18th April, 2005.

2006 S C M R 1478

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Falak Sher, JJ

FAKR DIN through L. Rs. ---Petitioners

Versus

BEGUM BIBI through Muhammad Boota--- Respondent

Civil Petition No. 1981-L of 2004, decided on 21st June, 2004.

(On appeal from the judgment dated 18-4-2001 passed by the Lahore High Court, Lahore in Regular Second Appeal No.255 of 1985).

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.XLI, R.22---Constitution of Pakistan (1973), Art.185(3)---Declaration of title--Concurrent finding of fact by the Courts below---Cross-objection, non filing of---Finding of fact attaining finality---Suppression of fact---Owner of suit property had died issueless and his wife claimed to be the owner of her Sharai share---Defendant being brother of the deceased owner resisted the suit on the basis of gift-deed executed in his favour regarding suit-land and also asserted that the deceased had divorced the plaintiff in his life time---Although Trial Court and Appellate Court were of the opinion that the plaintiff was not divorced by the deceased but dismissed. the suit and appeal respectively, as in their opinion gift-deed was proved in favour of the defendant---High Court in exercise of appellate jurisdiction decreed the suit of the plaintiff and held her entitled of her legal share---Validity---Once it was determined by the Trial Court that the plaintiff was the wife of deceased owner, such material finding should have been challenged by the defendant either in appeal or through cross-objections which both were not filed either before lower Appellate Court or before High Court---Such declaration had attained absolute finality---Gift-deed had mentioned that the deceased owner had divorced his wife and also that he was issueless---Once it was presumed that the owner had neither a wife nor children, the property was bound to be inherited by the brother or brothers and hence there was no need of gifting away the property to the brother---Factum of gift which was otherwise not proved was indicative of the fact that it was manoeuvred to be executed to deprive the plaintiff of her Sharai share Besides defendant, the deceased had another brother and suppression of existence of the second brother was mala fide and the defendant through the disputed gift-deed attempted to disinherit the wife as well as another brother of the deceased owner---Conclusion drawn by High Court was not only in accord with evidence on record but also in accord with the principles of natural justice---Leave to appeal was refused.

Ch. Muhammad Anwar Khan, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 21st June, 2004.

2006 S C M R 1480

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Tassaduq Hussain Jillani, JJ

Haji NOOR AHMAD---Petitioner

Versus

GOVERNMENT OF PUNJAB and another---Respondents

Civil Petition No.1623-L of 2003, decided on 29th December, 2004.

(On appeal from the judgment/order dated 2-4-2003 passed by Punjab Service Tribunal, Lahore in Appeal No.1098 of 1998).

Punjab Education Department (Schools Education) Recruitment Rules, 1987---

----R. 5---Constitution of Pakistan (1973), Art.212(3)---Eligibility for promotion---Third Division Degree in M.A.---Civil servant was denied promotion on the ground that he was not eligible as he had Third Division in M.A.---Contention of civil servant was that requirement of possessing degree at least of 2nd Division in M.A. was meant for those candidates who had applied for initial recruitment against 33% quota, whereas candidates whose case was covered under 67% of promotion quota, amongst SSTs for the posts of Headmaster/Headmistress, were not required at least to possess 2nd Division in M.A.---Leave to appeal was granted by Supreme Court to consider the contentions of petitioner.

Amir Alam Khan, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 29th December, 2004.

2006 S C M R 1483

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ

HUSSAINI---Petitioner

Versus

MUKARRAM ALI---Respondent

Civil Petition No.577-K of 2003, decided on 22nd July, 2004.

(On appeal from the judgment dated 25-6-2003 passed by High Court of Sindh, Hyderabad Bench passed in F.R.A. No.1 of 2003).

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

--S. 15(2)(ii)(vii)---Constitution of Pakistan (1973), Art.185(3)---Default in payment of rent---Bona fide personal need of landlord--Ejectment order passed by Rent Controller was upheld by High Court---Findings of fact arrived at by Courts below were not suffering from any legal or factual infirmity---Supreme Court dismissed petition, refused leave to appeal, but with consent of landlord granted six months period to tenant to vacate premises.

Abdur Rahim Qazi, Advocate Supreme Court for Petitioner.

Abdul Qadir Khan, Advocate Supreme Court and A.A. Khan, Advocate-on-Record for Respondent.

Date of hearing: 22nd July, 2004.

2006 S C M R 1485

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Sardar Muhammad Raza Khan and Saiyed Saeed Ashhad, JJ

MUHAMMAD SALEEM BUTT and another----Petitioners

Versus

PROVINCIAL ELECTION COMMISSIONER, BALOCHISTAN and others----Respondents

Civil Petition No.76-Q of 2005, decided on 19th August, 2005.

(On appeal from the judgment, dated 15-8-2005 of the Balochistan High Court, Quetta in Constitution Petition No.390 of 2005).

Balochistan Local Government Ordinance (XVIII of 2001)---

----S. 152(1)(h)---Constitution of Pakistan (1973), Art..185(3)---Rejection of nomination papers---Nomination papers filed by petitioner for election of office of Nazim Union Council, were rejected by Returning Officer on the ground that he had been dismissed from police service---Rejection order of Returning Officer, having been maintained by District Returning Officer as well as by the High Court, petitioner had filed petition for leave to appeal---Contention of petitioner was that he was dismissed from service, not on account of any moral turpitude, but for some disciplinary reasons and that his case was not covered under S.152(1)(h) of Balochistan Local Government Ordinance, 2001---Leave to appeal was granted to consider as to whether the High Court was justified in non-suiting petitioner under S.152(1)(h) of Balochistan Local Government Ordinance, 2001---During pendency of decision of appeal arising out of present petition, petitioner was allowed to contest elections.

Anayat Ullah Khan Niazi, Advocate Supreme Court for Petitioners.

Shakeel Ahmad, Advocate Supreme Court for Respondent No.16.

Salahuddin Mengal, Advocate-General, Balochistan and Muhammad Yawar Ali, D.A.-G. on Court Notice.

Date of hearing: 19th August, 2005.

2006 S C M R 1487

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ

IQBAL PAHORE---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Chief Election Commissioner and others---Respondents

Civil Petition No.528-K of 2004, decided on 20th July, 2004.

(On appeal from the judgment dated 25-3-2004 in C.P. No.D-346 of 2003 passed by the High Court of Sindh Hyderabad Circuit).

Sindh Local Government Ordinance (XXVII of 2001)---

----S. 148---Constitution of Pakistan (1973), Art.185(3)---Local Bodies elections---Procedure---Electoral college---Out of total 231 eligible voters, seven seats were vacant at the time of election of Nazim of Union Council---Returned candidate secured 114 votes and was declared as Nazim of Union Council---Contention of the petitioners was that 50% of the total number of votes had not been secured by the returned candidate---Validity---Out of total 231 voters seven voters/members were not there to cast their votes and there remained only 224 voters to cast their votes---High Court rightly concluded that out of 224 valid eligible votes, the successful candidate would have to secure fifty per cent. of the same in order to succeed---Returned candidate had secured 114 votes out of 224, therefore, the same being more than fifty per cent. was rightly declared successful as Nazim of Union Council---Supreme Court did not take any exception to the finding of High Court and did not find any legal or factual infirmity with the judgment---Leave to appeal was refused.

Shahadat Awan, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 20th July, 2004.

2006 S C M R 1489

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Ch. Ijaz Ahmad, JJ

MUHAMMAD SIDDIQUE----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.445-L and Jail Petition No.298 of 2005, decided on 30th November, 2005.

(On appeal from the judgment, dated 7-7-2005 of the Lahore High Court, Lahore passed in Criminal Appeal No.921 of 2000).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Eye­witnesses in their statements recorded under S.161, Cr.P.C. and at the trial, had implicated the accused assigning to him a specific role in the commission of the murder of the two ladies---Accused was the maternal-uncle of the said eye-witnesses who had kept on begging him to forgive their mother and maternal-grandmother, but their entreaties had no effect on him---No mitigating circumstance to warrant grant of lesser sentence was available in favour of accused---Leave to appeal was declined to accused in circumstances.

Muhammad Aslam Rokhari, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Nemo for the State.

Date of hearing: 30th November, 2005.

2006 S C M R 1492

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Faqir Muhammad Khokhar , JJ

MEHFOOZ ALAM---Petitioner

Versus

THE STATE---Respondent

Jail Petition No.96 of 2002, decided on 11th June, 2004.

(On appeal from judgment dated 1-4-2002 of the Lahore High Court, Lahore, passed in Criminal Appeal No.145-J of 1998).

Penal Code (XLV of 1860)---

----Ss. 302(b) & 460---Constitution of Pakistan (1973), Art.185(3)--Complainant in whose house his son had been murdered was himself an injured eye-witness---Eye-witnesses although related inter se were the natural witnesses of the occurrence who had clearly stated that electric light was on at the place of incident---Blood-stained earth was collected from the spot---Medical evidence had supported the ocular version---Report of Forensic Science Laboratory was positive---Courts below had appraised the evidence properly---No mitigating circumstance was available in favour of accused for awarding lesser penalty---Impugned judgment did not suffer from any error of law or fact so as to warrant interference by Supreme Court---Leave to appeal was refused to accused accordingly.

Islam-ud-Din v. Allah Rakha Sajid 1988 SCMR 1989 Ziaullah alias Jajj v. The State Criminal Appeal No.9(S) of 2003 ref.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.

Dil Muhammad Tarar, Advocate Supreme Court for the State.

Date of hearing: 11th June, 2004.

2006 S C M R 1495

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Sardar Muhammad Raza Khan and Saiyed Saeed Ashhad, JJ

MUHAMMAD SAEED AWAN and another-Petitioners

Versus

DISTRICT RETURNING OFFICER, ATTOCK and others----Respondents

Civil Petition No.2143 of 2005, decided on 16th August, 2005.

(On appeal from the judgment, dated 8-8-2005 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Writ Petition No.2222 of 2005).

Punjab Local Government Elections Ordinance (V of 2000)---

----S. 8(b)---Punjab Local Government Elections Rules, 2000, Rr.16(3)(iv), (4) & 18---Constitution of Pakistan (1973), Art.185(3)---Conversion of petition into appeal---Declaration of assets---Original record had shown that when nomination papers were submitted by petitioner, he was not owner of property---Petitioner, in circumstances was not obliged to make disclosure of his assets in his nomination papers---Petition was converted into appeal and same was allowed---Impugned judgment passed by Appellate Court was set aside and order of Returning Officer was restored accordingly.

Ch. Afrasiab Khan, Advocate Supreme Court for Petitioners.

Ch. Muhammad Tariq, Advocate Supreme Court for Respondent No.3.

Muhammad Hanif Khatana, Additional Advocate-General, Punjab for Advocate-General, Punjab.

Date of hearing: 16th August, 2005.

2006 S C M R 1496

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Hamid Ali Mirza and Faqir Muhammad Khokhar, JJ

MUHAMMAD AKRAM and others---Petitioners

Versus

MUHAMMAD MUSHTAQ AHMED and others---Respondents

Criminal Petition No.912-L of 2002 and Jail Petition No.460 of 2002, decided on 15th April, 2004.

(On appeal from the judgment dated 5-11-2002 of the Lahore High Court, Lahore, passed in Criminal Appeal No.1068 of 1999).

Penal Code (XLV of 1860)---

----S. 302(b)/34---Constitution of Pakistan (1973), Art.185(3)---Sentence---Trial Court had convicted both the accused and sentenced each of them to death as Tazir---High Court by impugned judgment upheld conviction of accused persons, but sentence of death awarded to them by the Trial Court, was reduced to imprisonment for life---Both complainant and accused had filed petitions for leave to appeal before Supreme Court against judgment of High Court---Complainant had alleged that Qatl-e-Amd of deceased was committed by accused after pre-meditation, deliberation and planning in a wanton manner, and thus, accused, deserved penalty of death as awarded by the Trial Court---Accused had pleaded that prosecution had not been able to prove its case against them beyond a reasonable doubt, and thus they were entitled to acquittal on benefit of doubt---Validity---Case was reported with police promptly and medical evidence had also supported ocular version of complainant and prosecution witnesses---Trial Court as well as High Court after due appreciation of evidence, believed presence and statements of complainant and prosecution witnesses who were natural witnesses---High Court had rightly observed that it was not possible for the eye-witnesses to say with exactitude as to which of the accused had fired a fatal shot at the deceased---High Court awarded lesser sentence to one of accused person for the reason that at the time of recording of his statement under S. 342, Cr. P. C. , his age was 20/21 years which came to be about 17/18 years at the time of occurrence---Discretion exercised by High Court in awarding lesser penalty to accused persons was proper and justified in the facts and circumstances of case, albeit the offence against them stood proved by prosecution beyond any reasonable doubt---Judgment of High Court did not suffer from any legal infirmity so as to warrant interference by Supreme Court---Case being not fit for grant of leave to appeal, petitions filed by both complainant and accused, were dismissed and leave to appeal, was refused accordingly.

Ch. Ghulam Murtaza Khan, Advocate Supreme Court for Petitioner (in C.P. No.912 of 2002).

Malik Muhammad Jehanzeb Taman, Advocate Supreme Court for Petitioners (in J.P. No.460 of 2002).

Muhammad Zaman Bhatti, Advocate Supreme Court for the State.

Date of hearing: 15th April, 2004.

2006 S C M R 1500

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Karamat Nazir Bhandari, JJ

MAZHAR HUSSAIN----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.591-L of 2005, decided on 20th December, 2005.

(On appeal from the order, dated 1-11-2005 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.7432/B of 2005).

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(2)---Constitution of Pakistan (1973), Art.185(3)---Bail, grant of---Admittedly marriage between the complainant and the lady accused stood dissolved by a Court decree, which had not been annulled by a Court of appeal---Accused had married the said lady subsequent to the aforesaid dissolution and a child was born from the wedlock---Guilt of the accused, thus, required further inquiry---Petition for leave to appeal was consequently converted into appeal and allowed and bail was allowed to accused accordingly.

Rai Muhammad Tufail Khan Kharal, Advocate Supreme Court with Ch. Muhammad Anwar Khan, Advocate-on-Record for Petitioner.

Zubair Khalid, A.A.-G. and Matiullah, A.S.-I. Police Station Lundianwala, District Faisalabad for the State.

Date of hearing: 20th December, 2005.

2006 S C M R 1501

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ

Mst. YASMEEN KHAN---Appellant

Versus

ABDUL QADIR and another---Respondents

Civil Petitions Nos.2282 and 2283 of 2001, decided on 21st July, 2004.

(On appeal from the judgment of High Court of Sindh at Karachi, dated 1-3-2001 passed in F.R.A. No.175/1998 and F.R.A. 174 of 1998 respectively).

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

----Ss. 10 & 15(2)(ii)---Default in payment of rent for one month---Direct deposit of rent in Court without first tendering same to landlord and then on his refusal to accept same or issue receipt, remitting same through money order---Effect---Such would be a wilful and deliberate default in payment of rent on the part of tenant, which could not be termed to be technical default---Principles illustrated.

Jan Muhammad v. Ishaq 2001 SCMR 762; Pakistan State Oil Co. Ltd. v. Muhammad Naqi 2001 SCMR 1140 and Mst. Saeeda Khatoon v. Muhammad Ahmed Latifi PLD 1990 SC 389 ref.

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

----S. 15(2)(ii)---Default in payment of rent for one month---Deposit of rent in Court directly without first tendering same to landlord---Plea of tenant was that he had paid rent for relevant period to landlady, but as no receipt was issued by her, he deposited rent in Court for same period once again---Validity---Admission of tenant that prior to relevant period, landlady did issue receipts to him, would corroborate her plea that monthly rent receipt was being issued to. him---Such fact would prove that tenant had not tendered to landlady rent for relevant period, but had deposited same in Court directly---Default in payment of rent for relevant period stood proved---Tenant was directed to vacate premises within six months subject to deposit of rent in Court.

Jan Muhammad v. Ishaq 2001 SCMR 762; Pakistan State Oil Co. Ltd. v. Muhammad Naqi 2001 SCMR 1140 and Mst. Saeeda Khatoon v. Muhammad Ahmed Latifi PLD 1990 SC 389 ref.

Abdul Ghafoor Mangi, Advocate Supreme Court and Miss Wajahat Niaz, Advocate-on-Record for Appellant.

Abdul Qadir Khan, Advocate Supreme Court and Aziz Khan, Advocate-on-Record for Respondents.

Date of hearing: 21st July, 2004.

2006 S C M R 1505

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and M. Javed Buttar, JJ

NIAZ ALI----Petitioner

Versus

ABDULLAH KHAN and others----Respondents

Civil Petition No.2879-L of 2000, decided on 31st May, 2005.

(On appeal from the judgment, dated 29-9-2000 of the Lahore High Court, Multan Bench, Multan passed in R.S.A. No.10 of 1988).

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

----Ss. 6 & 13---Constitution of Pakistan (1973), Art.185(3)---Suit for. pre-emption---Trial Court decreed the suit, but Appellate Court set aside judgment and decree of Trial Court and dismissed suit on the ground that petitioner had not been able to establish that he was son of vendor and said finding of Appellate Court was upheld by High Court---High Court considered effect of testimony of witnesses produced by petitioner and effect of non-production of pedigree-table of petitioner at the trial and had come to the conclusion that no exception could be taken to the findings of First Appellate Court on said question which findings were consequently affirmed by High Court---Petitioner having failed to point out any illegality in concurrent findings of Appellate Court below and High Court; petition for leave to appeal to Supreme Court, was dismissed and leave refused.

Malik Noor Muhammad Awan, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Petitioner.

Abdul Wahid Chaudhry, Advocate Supreme Court for Respondents.

Date of hearing: 31st May, 2005.

2006 S C M R 1506

[Supreme Court of Pakistan]

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

ABDUL SHAKOOR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.221 of 2003, decided on 12th August, 2004.

(On appeal from the judgment/order dated 7-1-2003 passed by High Court of Balochistan Quetta in Criminal Appeal No.91 of 2002).

(a) Explosive Substances Act (XI of 1908)---

----S. 5---Criminal Procedure Code (V of 1898), S.382-B---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to accused to examine as to whether benefit of S.382-B, Cr.P.C. had been declined to him by the Trial Court without assigning strong justification.

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

----S. 382-B---Explosive Substances Act (XI of 1908), S.5---Refusal of benefit of S.382-B, Cr.P.C. to accused---Validity---Trial Court had declined to extend the benefit of S.382-B, Cr.P.C. to accused for the reason that the explosive material could have been used by him for terrorism and he was not entitled to such benefit---Said reason was based on the consideration by the Trial Court of the nature of the offence being committed by the accused---Trial Court, no doubt, was bound to consider at the time of deciding the question of sentence of entitlement of accused for protection of his pre-sentence period, but while exercising its discretion judiciously it was not bound to extend such facility to him keeping in view the facts and circumstances of the case---Even otherwise, Supreme Court in exercise of its appellate jurisdiction had discretion not to interfere in the order of the Trial Court which was based on sound judicial reasons---Relief claimed by the accused of the benefit of S.382-B, Cr.P.C. was consequently declined to him and his appeal was dismissed accordingly.

Muhammad Rafiq v. The State 1995 SCMR 1525; Mukhtiar-ud-Din v. The State 1997 SCMR 55; Javed Iqbal v. The State 1998 SCMR 1539 and Ghulam Sarwar v. The State PLD 1984 SC 218 ref.

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

----S. 382-B---Period of detention to be considered while awarding sentence of imprisonment---Application and scope---Under S.382-B, Cr.P.C. it is mandatory for the Trial Court to consider at the time of deciding the question of sentence being awarded to an accused as to whether he is entitled for protection of pre-sentence period, but the Court while exercising discretion judiciously is not bound to extend such facility to him keeping in view the facts and circumstances of the case.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Salahuddin Mengal, Advocate-General for the State.

Date of hearing: 12th August, 2004.

2006 S C M R 1510

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J. Syed Deedar Hussain Shah and Abdul Hameed Dogar, JJ

Mst. FATIMA----Appellant

Versus

MUHAMMAD SHARIF and another----Respondents

Criminal Appeal No.556 of 1995, decided on 9th February, 2004.

(On appeal from the judgment/order, of the High Court of Sindh, Karachi, dated 15-5-1995, passed in Criminal Miscellaneous No.72 of 1995).

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

----S. 320---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to the complainant to consider whether the view taken by the High Court was based on the evidence available on the record and whether the accused had been rightly acquitted.

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

----S. 320---Appraisal of evidence---Observations made by High Court regarding exoneration of accused by a relative of the deceased and failure of a police functionary to identify the accused in the Court, were, prima facie, not borne out from the record---Witnesses had not exonerated the accused---High Court had not considered the case in its proper perspective which had resulted in miscarriage of justice---Impugned order was consequently set aside and the case was remanded to the High Court for fresh decision on merits after hearing the parties---Appeal was accepted accordingly.

Appellant in person. Respondent No.l in person.

Akhlaque Ahmed Siddiqui, Advocate Supreme Court/Advocate­ on-Record for Respondent No.2 the State.

Date of hearing: 9th February, 2004.

2006 S C M R 1512

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Faqir Muhammad Khokhar, JJ

ABDUL KHALIQ---Appellant

Versus

MUHAMMAD SARWAR---Respondent

Criminal Miscellaneous Application No.167 of 2004 and Criminal Petition No.548-L of 2000 in Criminal Appeal No.71 of 2003, decided on 3rd June, 2004.

(On appeal from the judgment dated 5-10-2000 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No.5256/B of 2000).

Criminal Procedure Code (V of 1898)---

----S. 497---Constitution of Pakistan (1973), Art.185(3)---Bail, grant of---Accused was directed by the Court to deposit an amount of Rs.80,000 in the Bank within one month failing which the bail allowed to him was to stand cancelled---On the subsequent date the said order was recalled by the Court due to lack of instructions of the counsel for the accused and his bail was cancelled---Receipt of Rs.80,000 produced by the accused in Supreme Court showed that the amount was deposited by him within the stipulated period in compliance with the aforesaid order---Impugned order regarding cancellation of bail of the accused was recalled in circumstances.

Rafiq Javed Butt, Advocate Supreme Court and Faiz-ur-Rehman Advocate-on-Record for Appellant.

Muhammad Zaman Bhatti, Advocate Supreme Court for Advocate-General Punjab for the State.

Date of hearing: 3rd June, 2004.

2006 S C M R 1514

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and M. Javed Buttar, JJ

MUHAMMAD AJMAL and another----Petitioners

Versus

DIRECTOR FOOD and others----Respondents

Civil Petitions Nos.3800-L and 3819-L of 2002, decided on 20th May, 2005.

(On appeal from the judgment, dated 27-8-2002 of the Punjab Service Tribunal, Lahore passed in Service Appeals Nos.1851 and 1850 of 2001).

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

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Punjab Service Tribunal in both cases looked into factual aspects of the matter and found that petitioners had been rightly held to be guilty of charges levelled against them and maintained punishment of recovery of amount of loss from them---Petitioners having failed to point out any substantial question of law of public importance which could qualify them for grant of leave to appeal in terms of Art. 212(3) of the Constitution, their petitions were dismissed.

Faiz-ur-Rehman, Advocate-on-Record for Petitioners (in both cases).

M.A. Aziz, Advocate Supreme Court on behalf of Advocate-General, Punjab for Respondent (in both cases).

Date of hearing: 20th May, 2005.

2006 S C M R 1515

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

GHULAM MUSTAFA through L. Rs.---Petitioners

Versus

ABDUL LATEEF and 4 others---Respondents

C.P.L.A. No.3368-L of 2002, decided on 26th August, 2004.

(On appeal from the judgment of Lahore High Court Lahore, dated 27-8-2002 passed in C.R. No.6 of 1997).

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

----Arts. 17(2)(a) & 79---Constitution of Pakistan (1973), Art. 185(3)---Agreement to sell---Proof---Non-production of two marginal witnesses in evidence---Agreement was not considered by Courts below---Plea of petitioner was that agreement was executed long before promulgation of Qanun-e-Shahadat, 1984; and that two marginal witnesses were dead, whereas 3rd witness had shifted to Karachi and was not available for recording evidence---Supreme Court granted leave to appeal to consider, inter alia, such questions of law of public importance.

Sheikh Naveed Shehryar, Advocate Supreme Court for Petitioners.

M. Aslam Riaz, Advocate Supreme Court for Respondent No.1.

Nemo for Respondents Nos.2 to 4.

Date of hearing: 26th August, 2004.

2006 S C M R 1517

[Supreme Court of Pakistan]

Present: Falak Sher, Mian Shakirullah Jan and Tassaduq Hussain Jillani, JJ

REHMAT ULLAH----Petitioner

Versus

MUHAMMAD IQBAL and others----Respondents

Criminal Petition for Leave to Appeal No.864-L of 2002, decided on 22nd June, 2005.

(On appeal from the decision, dated 23-10-2002 of the Lahore High Court in Criminal Appeal No.241 of 1999 and Murder Reference No:461 of 1999).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art. 185(3)-Conduct of the prosecution witnesses of not rescuing their blood-relation or to apprehend the assailant was too unnatural to be true---Recovery of "Gainti" from the crime spot not found to be blood-stained, was of no consequence---No independent person appeared to support the prosecution version---Background of the dispute over demarcation of land existed between the parties---Ocular testimony was in conflict with medical evidence---Prosecution story being doubtful, impugned judgment of High Court acquitting the accused was neither arbitrary nor capricious to warrant interference by Supreme Court---Leave to appeal was refused to complainant accordingly.

Khadim Nadeem Malik, Advocate Supreme Court with Mahmud­ul-Islam, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 22nd June, 2005.

2006 S C M R 1519

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Tassadduq Hussain Jillani, JJ

CALTEX OIL (PAKISTAN) LTD.---Petitioner

Versus

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

C.P.L.A. No.1968 of 2002, decided on 20th August, 2004.

(On appeal from the judgment, dated 11-6-2002 passed by High Court of Sindh Karachi, in Special Sales Tax Appeal No.60 of 2002).

(a) Constitution of Pakistan (1973)--

----Art. 185(3)---Question of law---Raising of such question first time before Supreme Court---Validity---Question of law arising out of the facts of case relating to fundamental issues involved therein, even if was not raised before the lower forum, can be taken before the higher forum---Supreme Court for doing complete justice may, if the facts and circumstances so demand, allow to raise a question of law which was not as such taken before High Court---Court seized of the matter was supposed to apply the correct law to meet the ends of justice.

Gatron (Industries) Ltd. v. Government of Pakistan 1999 SCMR 1072 ref.

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

----S. 36---Non-levy/short levy/erroneous refund of sales tax---Categories---Cases of such nature are divided in two categories under S.36 of Sales Tax Act, 1990---First category of cases is covered under S.36(1) of Sales Tax Act, 1990, in which due to deliberate act, tax was not levied or short levied or erroneously refunded---Whereas cases, in which sales tax was not levied or short levied or erroneously refunded by reason of inadvertence, error or misconstruction, are covered under S.36(2) of Sales Tax Act, 1990.

?

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

----Ss. 36 & 65---Sales tax, recovery of---Show-cause notice not disclosing grounds and reasons for proposed action---Evasion of sales tax-Plea of inadvertence---Contention of the authorities was that for availing the benefit of S.65 of Sales Tax Act, 1990, Central Board of Revenue was the proper forum---Validity---Without completion of pre-requisite of show-cause notice and supply of the grounds/reasons in clear and explicit words to ascertain as to under which subsection of S.36 of Sales Tax Act, 1990, the case would fall, the demand of the authorities had no legal consequence---Such failure of the authorities issuing show cause notice to disclose the grounds and reasons rendered the notice invalid---Collector concerned initiated the process of issuing show-cause notice raising the presumption that petitioner company was responsible for evasion of sales tax therefore, no useful purpose would be served in undertaking the exercise of approaching the Collector for grant of benefit of S.65 of Sales Tax Act, 1990---Was essential for the Tribunal to examine the scope of S.65 of Sales Tax Act, 1990, and it should have given clear verdict in the matter---Federal Government was competent to exempt the sales tax in a case which was covered by the provisions of S.65 of Sales Tax Act, 1990---Question regarding entitlement of the benefit of S.65 of Sales Tax Act, 1990, would need determination by an independent forum---Supreme Court remanded the case to the Tribunal for its determination as the Tribunal had not attended such fundamental question and failed to exercise the jurisdiction vested in it---High Court while affirming the judgment of Tribunal committed the same error---Supreme Court framed certain questions and directed the Tribunal to decide them afresh---Appeal was allowed.

Assistant Collector Customs v. Khyber Electric Camps 2001 SCMR 838 and State of Tamil Nadu v. Cement Distributors (Pvt.) Ltd. AIR 1973 SC 668 ref.

Farogh Naseem, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Petitioner.

Raja Muhammad Irshad, Deputy Attorney-General and M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 20th August, 2004.

2006 S C M R 1529

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Tassaduq Hussain Jillani, JJ

IFTIKHAR AHMAD and another----Petitioners

Versus

AUDITOR-GENERAL OF PAKISTAN and others----Respondents

Civil Petitions Nos.346 and 372 of 2003, decided on 30th December, 2004

(On appeal from the judgment, dated 23-11-2002 of the Federal Service Tribunal, Islamabad passed in Appeals Nos.441 and 442(R)CS of 2002).

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Petitioners had themselves accepted new arrangement of examination as they appeared in examination, but could not qualify the same---High Court as well as Federal Service Tribunal, in circumstances had declined to interfere in the policy of Government---Petitioners themselves having accepted new system of examination, they could not be allowed to argue that their cases would not be governed by new policy---No question of public importance being involved in the case, petitions were dismissed.

Ch. Muhammad Rafique Warraich, Advocate Supreme Court and Mian Attaur Rehman, Advocate-on-Record for Petitioners.

Nemo for Respondents (in both cases).

Date of hearing: 30th December, 2004.

2006 S C M R 1530

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar , JJ

LAHORE DEVELOPMENT AUTHORITY through Director-General---Petitioner

Versus

ARIF MANZOOR QURESHI and others---Respondents

Civil Petition No.2395-L of 2002, decided on 16th June, 2004.

(On appeal from order dated 27-6-2002, of the Lahore High Court, Lahore, passed in Writ Petition No.11307 of 2002).

Civil Procedure Code (V of 1908)---

--S. 12(2)---Constitution of Pakistan (1973), Art.185(3)---Decree

passed without recording evidence of parties---Application for setting aside such decree on grounds of fraud, collusion and misrepresentation---Plea of petitioner was that exemption orders of disputed plots were invalid, fictitious, forged thus, respondent/plaintiff was not lawful transferee thereof---Dismissal of application summarily by Trial Court was upheld in revision and by High Court in Constitutional petition---Validity---Disposal of application in such manner was not justified in view of serious allegations levelled therein---Trial Court aught to have framed issues and recorded evidence of parties, particularly when decree had also been passed without recording evidence of parties---Inquiry directed by Supreme Court in respect of disputed plots had been finalized by the Development Authority---Supreme Court accepted appeal, set aside impugned judgments of High Court and Courts below directing that such application would be deemed to be pending before Trial Court for its decision within specified time after framing issues and recording evidence of parties.

Muhammad Rashid Ahmed, Advocate Supreme Court for Petitioner.

Malik Azam Rasool, Advocate Supreme Court and Mian Atta­ur-Rehman, Advocate-on-Record for Respondent No.1.

Date of hearing: 16th June, 2004.

2006 S C M R 1532

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Tassaduq Hussain Jillani, JJ

NASEEB KHAN----Petitioner

Versus

HAKIM ALI and others----Respondents

Cr. P.L.A. No.667-L of 2004, decided on 20th July, 2005.

(From the order of Lahore High Court, dated 26-10-2004 passed in Criminal Miscellaneous No.1/2004 in Criminal Appeal No.79-J of 2004).

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S.302---Constitution of Pakistan (1973), Art.185(3)---Suspension of sentence---Validity---High Court had suspended the sentence awarded to accused on the ground that the injury attributed to him on the head of the deceased was not found to exist---Contention was that a bruise found on the left side of the face of the deceased described as injury No.1 in the post-mortem report, should be declared to be an injury on the head of the deceased---Held, no such interpretation could possibly be given to a part of the body, which ' according to the Doctor was the face and not the head---Discretion exercised by the High Court in suspending the sentence of accused and releasing him on bail did not suffer from any illegality---Leave to appeal was declined to complainant accordingly.

Khawaja Muhammad Afzal, Advocate Supreme Court with Mehmood A. Qureshi, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 20th July, 2005.

2006 S C M R 1534

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Syed Deedar Hussain Shah , JJ

GHULAM MUHAMMAD and others---Petitioners

Versus

MANZOOR AHMAD and others---Respondents

Civil Petition for Leave to Appeal No.142-L of 2001, decided on 12th July, 2004.

(On appeal from the judgment/order of the Lahore High Court, Lahore, dated 21-11-2000, passed in Writ Petition No.12756 of 1995).

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

----S. 42---Constitution of Pakistan (1973), Art. 185(3)---Revenue record---Correction---Direction of High Court---Revenue authorities were directed by High Court in exercise of Constitutional jurisdiction to correct the Revenue Record---Plea raised by the petitioner was that Constitutional petition before High Court was not maintainable---Validity---High Court had elaborately dealt with each and every aspect of the case and there was no misreading or non-reading of the material or misconstruction of law---Supreme Court declined to differ with the findings of High Court---Leave to appeal was refused.

Ghulam Nabi Bhatti, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing; 12th July, 2004.

2006 S C M R 1536

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Falak Sher, JJ

SAJID HUSSAIN and others----Petitioners

Versus

DEPUTY INSPECTOR-GENERAL OF POLICE and others----Respondents

Civil Petitions Nos.2738-L to 2745-L of 2004, decided on 29th December, 2004.

(On appeal from the judgment of the Punjab Service Tribunal, Lahore, dated 13-7-2004 passed in Appeals Nos.562 to 568 and 608 of 2004) .

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Service Tribunal found that petitioners had ample opportunity to defend their jobs before competent forum seized of the matter during the course of disciplinary proceedings and no illegality existed vis-a-vis said proceedings---Petitioner could not show existence of any substantial question of law of public importance which could justify grant of leave to petitioners to file appeal---Even otherwise, Supreme Court would not resolve factual controversies in jurisdiction envisaged by Art. 212(3) of the Constitution.

Amir Alam Khan, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 29th December, 2004.

2006 S C M R 1537

[Supreme Court of Pakistan]

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

Messrs AGFA COLOR SERVICES (PVT.) LIMITED---Petitioner

Versus

MUHAMMAD ASAD---Respondent

Civil Petition No.515-L of 2002, decided on 30th June, 2004.

(On appeal from the judgment dated 7-1-2002 passed by the Lahore High Court, Lahore in S.A.O. No.211 of 2000).

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

----S. 5-A---Enhancement in rent statutorily or under settlement between parties---Notice qua such enhancement to tenant---Entitlement---Statutory enhancement was automatic after each three years---Tenant was bound to make payment according to such settlement without notice for being aware of enhanced rent.

Khalifa Shujaat Amin, Advocate Supreme Court with Ch. Talib Hussain Advocate-on-Record for Petitioner.

Ahmed Waheed Advocate Supreme Court for Respondent.

Date of hearing: 30th June, 2004.

2006 S C M R 1539

[Supreme Court of Pakistan]

Present: Javed Iqbal, Mian Shakirullah Jan and Nasir-ul-Mulk, JJ

JOSHUA CHIGBOGU---- Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.204-L of 2004, decided on 13th July, 2005.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 10-2-2004 passed in Criminal Appeal No.2195 of 2003).

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

----S. 9(c)---Constitution of Pakistan (1973), Art.185(3)---Sentence---Accused being a foreigner was not a consideration for determining the quantum of sentence as the penal law of the country had to be applied with same rigor to everyone subjected to it, regardless of his nationality---Sentence had to be proportionate to the heroin powder in the form in which it was marketable, regardless of its composition---Accused had already been dealt with leniently by the Trial Court by sentencing him to ten years' R.I. under S. 9(c) of the Control of Narcotic Substances Act, 1997, which carried the maximum punishment of death---Leave to appeal was declined to accused accordingly.

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

----S. 9---Punishment---Sentence is to be proportionate to the heroin powder in the form in which it is marketable, regardless of its composition.

Sahibzada Anwer Hameed, Advocate Supreme Court and Ch. Muhammad Hanif Zahid, Advocate-on-Record for Petitioner.

Nemo for the State.

Date of hearing: 13th July, 2005.

2006 S C M R 1541

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Falak Sher, JJ

ABDUL JABBAR through L.Rs. and others---Petitioners

Versus

ABDULLAH through L.Rs. and others---Respondents

Civil Petition No. 1207-L of 2003, decided on 18th June, 2004.

(On appeal from the order dated 26-3-2003 passed by the Lahore High Court, Lahore in C.R. No.412-13 of 1986).

Specific Relief Act (I of 1877)---

----S. 12----Colonization of Government Lands (Punjab) Act (V of 1912), S.19---Constitution of Pakistan (1973), Art. 185(3)---Suit for specific performance of agreement to sell---Agreement in favour of plaintiff was made in year 1977---Vendor, after acquiring proprietary rights, sold land to defendant in year, 1979---Plaintiff thereafter filed suit in year 1979---Trial Court dismissed suit---Appellate Court decreed suit, which on revision was maintained by High Court by opining that suit was not time-barred for having been instituted subsequent to acquisition of proprietary rights on basis of which sale-deed was executed in favour of defendant; and that agreement to sell was not hit by mischief of S.19 of Colonization of Government Lands (Punjab) Act, 1912---Validity---Such concurrent findings of fact recorded by two Courts below being duly borne out from evidence adduced were unexceptionable---Supreme Court dismissed petition and refused leave to appeal.

Muhammad Iqbal v. Mirza Muhammad Hussain PLD 1986 SC 70; Akhtar Ali v. Muhammad Hanif PLD 1986 SCMR 604 and Muhammad Afzal v. Rehmat Ali 1991 SCMR 1785 ref.

A. Karim Malik, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 18th June, 2004.

2006 S C M R 1544

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

ADNAN HUSSAIN and others----Petitioners

Versus

GHULAM HAIDER and others----Respondents

Civil Petitions for Leave to Appeals Nos.4087-L, 4088-L and 4089-L of 2001, decided on 16th July, 2004.

(On appeal from the judgment/order of the Lahore High Court, Lahore, dated 23-10-2001, passed in Writ Petitions Nos.2693 of 1990, 3046 of 1991 and 1525 of 1991, respectively).

Land Reforms Regulation (1972) [M.L.R.115]---

----Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted to consider whether impugned judgment was against the facts and law laid down by Supreme Court; whether order of Chairman, Federal Land Commission had done substantial justice and was not liable to be set aside in equitable Constitutional jurisdiction; and whether tenants had no locus standi or cause of action to file Constitutional petition.

Ch. Riyasat Ali, Advocate Supreme Court with Mahmood A. Qureshi, Advocate-on-Record for Petitioners.

Malik Noor Muhammad Awan, Advocate Supreme Court and M. Ozair Chughtai, Advocate-on-Record for Respondents.

Date of hearing: -16th July, 2004.

2006 S C M R 1545

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ

SHAUKAT BABAR VIRK and others----Petitioners

Versus

Syed AMJAD ALI SHAH and others----Respondents

Civil Petitions Nos. 1472 and 1814 of 2004, decided on 7th February, 2006.

(On appeal from the judgment, dated 2-6-2004 of the Lahore High Court, Lahore in Writ Petition No.4722 of 1998).

Civil Service---

----Appointment---Petitioner was appointed on contract basis for a period of two years, but his appointment was terminated about two months after his appointment---Petitioner, however, was again appointed on his application routed through the Minister on same terms and conditions---Said appointment was challenged in constitutional petition and High Court declared said appointment order as without lawful authority holding that said post would be deemed to be vacant and that if Department wanted to fill said vacancy, prescribed procedure in the Service Rules, should be followed---Appointment of petitioner being on contract basis and the contract period having expired, his appointment was not alive---Findings recorded in the impugned order, being proper, would not call for any interference by Supreme Court.

Aftab Ahmad, Advocate Supreme Court for Petitioner (in both cases).

Arshad Ali Chaudhary, Advocate-on-Record for Petitioners (in C. P. No. 1742 of 2004).

Nemo for Respondents (in both cases).

Date of hearing: 7th February, 2006.

2006 S C M R 1547

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J. Tassaduq Hussain Jilani and Karamat Nazir Bhandari, JJ

Human Rights Case No.3212 of 2006, decided on 6th July, 2006.

Criminal Procedure Code (V of 1898)---

----Ss: 154 & 173---Constitution of Pakistan (1973), Art.4---Protection of law---Non-registration of F.I.R. in murder case---Submission of challan---Grievance of petitioner was that her son was murdered and despite lapse of 2-1/2 years no F.I.R. had been registered by police---Effect---Non-registration of criminal case wherein a murder had taken place about 2-1/2 years back clearly demonstrated inefficiency and gross negligence on the part of concerned Police Officers---During investigation it was always better to collect evidence if available, as early as possible---Everyone was entitled under the Constitution to protection and was entitled to get justice in all circumstances but attitude of police was irresponsible and on account of such attitude, mother of deceased was bound to suffer throughout her life---Supreme Court directed Inspector-General of Police to take strict disciplinary action against officers/officials who were responsible for not registering the case after happening of the incident---Supreme Court had observed time and again that it was duty of police to register case without any delay and submit challan as far as possible within the period of fifteen days in terms of S.173, Cr.P.C.---Supreme Court further directed the authorities to submit report for Court's perusal---Application was allowed.

Hakim Mumtaz Ahmed and another v. The State PLD 2002 SC 590 rel.

Complainant in Person.

Aftab Iqbal Ch. A.-G. Punjab, Major (Rtd.) Zial-ul-Hassan, I.-G. Punjab, Khadim Hussain Qaisir, Additional Advocate-General, M. Aslam Tareen, D.P.O. Sheikhupura and Zaeem Iqbal, S.P. (Investigation) on Court notice.

2006 S C M R 1550

[Supreme Court of Pakistan]

Present: Javed Iqbal, Nasir-ul-Mulk and Hamid Ali Mirza, JJ

SANA-UR-REHMAN and others----Petitioners

Versus

NAYYAR AHMED and others----Respondents

Criminal Petitions Nos.286 and 341 of 2004, decided on 25th April, 2006.

(On appeal from the judgment, dated 21-5-2004 of the Peshawar High Court, Abbottabad Bench, passed in Criminal Appeal No.47 of 2002).

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

----Art. 185---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---Appellate jurisdiction of Supreme Court--Criminal trial---Findings of fact---Appreciation of evidence---Different view of evidence---Principles---As an ultimate Court, Supreme Court must give due weight and consideration to findings of the Courts below and normally it should not interfere with their findings where it is satisfied that they are reasonable and are not arrived at by disregard of any accepted principle regarding appreciation of evidence---Mere fact that Supreme Court might have taken a different view of the evidence should not be sufficient to overrule findings of the Court below---If the grounds upon which High Court has acted are not supportable on the record, or decision on a question of fact has turned upon inadmissible evidence or upon a faulty reading of evidence, or where there has been a departure from the procedure in reception of evidence or otherwise, interference by Supreme Court would be justified and necessary---Supreme Court is reluctant with such orders unless it is possible to demonstrate with certainty that none of the grounds upon which accused was acquitted is at all supportable, even though upon evidence on record a different conclusion might be arrived at---Where acquittal of accused cannot be maintained as findings recorded by High Court are clearly not supportable on record, interference by Supreme Court is not only justified but necessary in the interest of justice.

Farid v. Aslam PLD 1977 SC 4; State v. Khan Beg 1970 SCMR 353; Haq Nawaz v. Muhammad Khan 1977 SCMR 356; Dal Singh v. King Emperor AIR 1917 PC 25; Bertrand's case (1867) 1 PC 520; Abraham Mallory Dillett's case (1887) 12 AC 459; Taba Singh v. Emperor AIR 1925 PC 59; Otto George Gfeller v. The King AIR 1943 PC 211; Mohindar Singh v. Emperor AIR 1932 PC 234; Muhammad Nawaz v. Emperor AIR 1941 PC 132; Muhammad Ashiq v. Allah Bakhsh PLD 1957 SC (Pak.) 293; Fateh Muhammad v. Bagoo PLD 1960 SC 286; Zafar Ali v. The State PLD 1962 SC 320 and Siraj Din v. Kala PLD 1964 SC 26 ref.

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

----Ss. 337-A (ii), 337 & 34---Constitution of Pakistan (1973), Art. 185(3)---Reappraisal of evidence---Related witness, evidence of---During trial, evidence of eye-witness was disbelieved by Trial Court for the reason that he was brother of the complainant, resultantly accused were acquitted ---High Court allowed appeal against acquittal and convicted the accused---Validity---Statement of eye-witness was discarded being brother of complainant in violation of the well-entrenched legal proposition that on the basis of inter se relationship, the statement of a witness could not be discarded---Trial Court failed to appreciate the intrinsic value of the eye account as furnished by eye­witness---Medical evidence lent full corroboration to the ocular evidence furnished by doctor---Prosecution failed to establish the guilt to the hilt---High Court had appreciated evidence in accordance with law, settled norms of justice and well-entrenched principles enunciated by Supreme Court regarding safe administration of justice---Judgment passed by High Court being well-based did not warrant interference by Supreme Court---Leave to appeal was refused.

Muhammad Ilyas Siddiqi, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondent No.1 (in Criminal Petition No.341 of 2004).

Ch. Akhtar Ali, Advocate-on-Record for Petitioner (in Criminal Petition No.341 of 2004) and for Respondent No.2 (in Criminal Petition No.286 of 2004).

Date of hearing: 25th April, 2006.

2006 S C M R 1555

[Supreme Court of Pakistan]

Present: Javed Iqbal, Abdul Hameed Dogar and Saiyed Saeed Ashhad, JJ

DAWOOD COTTON MILLS LTD.----Appellant

Versus

K. F. DEVELOPMENT CORPORATION LTD.----Respondent

Civil Appeal No. 14 of 2004, decided on 17th March, 2006.

Arbitration Act (X of 1940)---

---Ss. 14, 29, 30 & 33---Constitution of Pakistan (1973), Art.185---Reference of dispute to arbitration---Making award rule of the Court--Objection to award---Allowing mark-up for the period prior the date of judgment and decree, objection to---High Court where award was filed for making same rule of the Court, modified the same and allowed mark-up awarded by Arbitrator from the date prior to the judgment and decree, which was in clear violation of provisions of S.29 of Arbitration Act, 1940---Validity---Under provisions of S.29 of Arbitration Act, the Court making award as rule of the Court was empowered only to allow mark-up from the date of judgment/decree making award rule of the Court till the payment of decretal amount---High Court had committed serious illegality in allowing interest from the date prior to the decree as. Court did not have the power and authority to allow such interest in view of provisions of S.29 of Arbitration Act, 1940---Supreme Court allowing appeal, set aside judgment and decree of High Court---Respondent would be entitled to mark-up from the date, of decree till the payment of decretal amount.

Ghulam Abbas v. Trustees of the Port of Karachi PLD 1987 SC 393 ref.

Abrar Hasan, Advocate Supreme Court and Naraindas C. Motiani, Advocate-on-Record (absent) for Appellant.

M.G. Dastagir, Advocate Supreme Court and Raja Sher Muhammad Khan, Advocate-on-Record for Respondent.

Date of hearing: 17th January, 2006.

2006 S C M R 1560

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J. Mian Shakirullah Jan and Syed Jamshed Ali, JJ

Syed ISHFAQ HUSSAIN SHAH and another----Appellants

Versus

DISTRICT JUDGE WITH POWER OF DISTRICT RETURNING OFFICER, LAHORE and others----Respondents

Civil Appeals Nos.975 and 976-L of 2005 in C. P. Nos. 1588 and 1589-L of 2005, decided on 1st June, 2006.

(Against the order, dated 10-8-2005 passed by Lahore High Court, Lahore in Writ Petitions Nos. 14373 and 14367 of 2005):

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

----Ss. 92 & 163 [as amended by Punjab Local Government (Amendment) Act (X of 2005)]---Constitution of Pakistan (1973), Art. 185(3)---Re-election of Nazim and Naib Nazim---Nomination papers, rejection of---Disqualification of candidates to contest election for Naib Nazim had been recalled under S.92 of Punjab Local Government. Ordinance, 2001-Supreme Court granted leave to appeal to consider as to whether in pursuance of S.163 of Punjab Local Government Ordinance, 2001 (before amendment), petitioners were eligible to contest election as they were alleged to be debarred to contest re-election and not General Elections of Local Councils and whether despite omitting/repealing provisions of S.163 of Punjab Local Government Ordinance, 2001, petitioner would remain debarred to contest election on account of the effect of recalling.

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

----Ss. 92 & 163(3)---Election held under Punjab Local Government Elections Ordinance (V of 2000)---Exit of Nazim or Naib Nazim through recall motion---Effect---Election held under Punjab Local Government Elections Ordinance, 2000 would be deemed to have been held under Punjab Local Government Ordinance, 2001 by virtue of its S. 196(3)---Such Nazim or Naib Nazim, if recalled, would entail disqualification to contest election.

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

----S. 163 [as amended by Punjab Local Government (Amendment) Act (X of 2005)]---Punjab Local Government Election Rules, 2005, R.14---West Pakistan General Clauses Act (VI of 1956), S.4---General Clauses Act (X of 1897), S.6---Notification of recall as Nazim or Naib Nazim---Effect of such disqualification on future election---Re-election contemplated by S.163 of Punjab Local Government Ordinance, 2001 was not in fact bye-election for same office from which Nazim or Naib Nazim was recalled---Person incurring disqualification under S.163 of Punjab Local Government Ordinance, 2001 would not be eligible to contest any election or bye-election, provided such disqualification existed on statute book on date of submission of nomination papers---Question as to whether on date of scrutiny of nomination papers a candidate was disqualified, would be determined only with reference to provisions of Punjab Local Government Ordinance, 2001 and Punjab Local Government Elections Rules, 2005, and reference to any other law for such matter would not be relevant---Omission/deletion of temporary legislative measure would not normally attract provisions of S.4 of West Pakistan General. Clauses Act, 1956 or S.6, General Clauses Act, 1897---Disqualification contemplated by S.163 of Punjab Local Government Ordinance, 2001 was temporary in nature and with its omission, candidate would carry same with him on date of scrutiny of nomination papers---Principles.

Saeed Ahmad v. The State PLD 1964 SC 266; Dr. Mukhtar Hamid Shah and others v. Government of the Punjab and others PLD 2002 SC 757 and Province of East Pakistan v. Sharafatullah and 87 others PLD 1970 SC 514 ref.

Muhammad Rafique v. Federation of Pakistan and others PLD 2005 Lah. 150 rel.

(d) West Pakistan General Clauses Act (VI of 1956)---

----S. 4---General Clauses Act (X of 1897), S.6---Temporary legislative measure, omission/deletion of---Effect---Temporary legislative measure would not have same effect as a permanent one--- Omission/deletion of temporary measure would not normally attract provisions of S.4 of West Pakistan General Clauses Act, 1956 or S.6, General Clauses Act, 1897.

(e) West Pakistan General Clauses Act (VI of 1956)---

---S. 4, Object of S.4 of West Pakistan General Clauses Act, 1956 is to keep intact rights and liabilities accrued under repealed or omitted legislation.

(f) Precedent---

---General statement of law would not be exposition of whole law on the subject.

Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 rel.

Dr. Mohy-ud-Din Qazi, Advocate Supreme Court for Appellants (in both cases).

Shahzad Shaukat, Advocate Supreme Court for Respondent No.3 (in both cases).