SCMR 2007 Judgments

2007 S C M R 1

[Supreme Court of Pakistan]

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

FAZAL DIN through L.Rs.----Petitioners

Versus

MUHAMMAD ANAYAT through L.Rs.----Respondents

Civil Petition No.822 of 2006, decided on 20th September, 2006.

(On appeal from the judgment, dated 5-5-2006 passed by Lahore High Court, Rawalpindi in Civil Revision No.386-D of 1999).

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

----S. 13---Constitution of Pakistan (1973), Art.185(3)---Pre-emption suit---Details of Talb-i-Muwathibat, non-mentioning in the plaint---Principles---Pre-emptor was non-suited by High Court on account of his failure to provide details i.e. date and time of performance of Talb-i-Muwathibat in the plaint---Validity---When Talb-i-Muwathibat was made immediately after sale and Talb-i-Ishhad was made within two weeks from the date of sale, in such case only reference to Talb-i-Muwathibat in the notice of Talb-i-Ishhad and in the plaint would be sufficient---Where pre-emptor having claimed to acquire knowledge of sale beyond the date of sale, pleaded making Talb-i-Muwathibat in general terms without specifying date and other necessary particular of Talb-i-Muwathibat, basic condition for exercising right of pre-emption would remain unproved; in such situation it would be essential for pre-emptor to prove correct date of knowledge and place of meeting in which he had announced for exercise of right of pre-emption---Performance of Talb-i-Ishhad was second Talb, fulfillment of which depended upon the presence of Talb-i-Muwathibat---Unless date and place of making Talb-i-Muwathibat was specifically mentioned in the plaint or proved through evidence, the performance of Talb-i-Ishhad could not be claimed to have been proved in terms of S.13 (3) of Punjab Pre-emption Act, 1991---Supreme Court declined to interfere with the judgment passed by High Court, as it did not suffer from any illegality or infirmity and pre-emptor was rightly non-suited---Leave to appeal was refused.

Haji Muhammad Saleem v. Khuda Bukhsh PLD 2003 SC 315; Akbar Ali Khan and others v. Mukamil Shah and others 2005 SCMR 431; Subedar Muhammad Nawaz v. Mst. Firdous Begum Civil Appeal No.393 of 2003 and Fazal Subhan v. Sahib Jamala PLD 2005 SC 977 fol.

Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 and Hayat Muhammad and others v. Mazhar Hussain 2006 SCMR 1410 ref.

Ch. Afrasiab Khan, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners.

Altaf Elahi Sheikh, Advocate Supreme Court and Ejaz Muhammad Khan Advocate-on-Record for Respondents.

2007 S C M R 10

[Supreme Court of Pakistan]

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

COLLECTOR CUSTOMS, SALES TAX AND CENTRAL EXCISE and 2 others----Petitioners

Versus

Professor MUHAMMAD KHAN and 6 others----Respondents

Civil Petition No.603-K of 2004, decided on 18th July, 2006.

(On appeal from the judgment, dated 18-3-2004 passed by the High Court of Sindh, Hyderabad Bench in Constitutional Petition D-25 of 2004).

Customs Act (IV of 1969)---

----Ss. 17---Civil Servants (Efficiency and Discipline) Rules, 1973, Removal from Service (Special Powers) Ordinance (XVII of 2000), Preamble---Constitution of Pakistan (1973), Arts.199 & 185(3)---Constitutional petition before High Court---Detention of vehicle by Customs officials on suspicion---Authority and duties of public servants---Scope---Petitioner filed constitutional petition against officials of Customs Department alleging therein that they detained his vehicle while he was travelling with his family, on suspicion that the same was smuggled one---High Court while declaring the act of Customs Officials as without lawful authority, directed them to pay compensation to petitioner at the rate of Rs.1,000 per day for the period of unauthorized detention---Customs Officials challenged the order of High Court on ground that in absence of any provision in the Customs Act, 1969, regarding payment of such compensation, High Court was not empowered to give such direction---Customs Officials further contended that in case of suspicion as to lawful import of vehicle same could be competently detained by them in exercise of their powers under. Customs Act, 1969, for the purpose of necessary verification and were not liable to any penal action---Validity---Law certainly provided protection to a public servant for doing lawful act in discharge of his duty but no such immunity was to be claimed by a person for committing an illegal act in his official capacity as a public servant---Customs Authorities did not have unbridled power, under Customs Act, 1969, to detain goods of foreign origin at any time on presumption that the same were not brought into Pakistan in a lawful manner---In absence of any proof that goods in possession of a person were brought into Pakistan in violation of any law, Customs authorities and such other public functionaries had no authority to detain such goods merely on suspicion---Petitioner had showed documents of registration in his name to Customs Official who, having detained the car, insisted the production of import documents for release of car---Detention of car was an act of highhandedness which was committed through misuse of official authority and it might constitute misconduct in terms of Civil Servants (Efficiency and Discipline) Rules, 1973 read with Removal from Service (Special Powers) Ordinance, 2000---Exercise of official authority in a manner in which a person was made victim of misuse of process of law was violative of constitutional guarantees of rights of citizens and a person responsible for violation of such rights was to face legal consequences---Act of custom officials might also constitute misconduct, therefore, concerned authorities were under legal obligation to initiate appropriate proceedings against officials involved in the matter---Copy of Supreme Court order was directed to be sent to Chairman C.B.R. for necessary action---Petition filed by Customs Officials against order of High Court was dismissed.

?

Abdul Saeed Khan Ghori, Advocate Supreme Court for Petitioners.

Respondent No.1 in person.

Date of hearing: 18th July, 2006.

2007 S C M R 13

[Supreme Court of Pakistan]

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

PUNJAB WORKERS' WELFARE BOARD, GOVERNMENT OF PUNJAB AND HUMAN RESOURCES DEPARTMENT, LAHORE ----Petitioner

Versus

MEHR DIN----Respondent

Civil Petition No.1832-L of 2006, decided on 2nd October, 2006.

(On appeal from the order, dated 5-7-2006 of the Lahore High Court, Lahore passed in Intra-Court Appeal No.205 of 2006).

(a) Civil Service---

----Promotion---Promotion on trial basis---Case not considered by competent authority within period fixed in promotion order---Promotion to be confirmed 'on expiry of period prescribed in order---Scope---Relevant documents not produced with constitutional petition before High Court---Production of such documents in intra-court appeal---Employee was promoted on 31-5-1997 on recommendation of Departmental Promotion Committee---Competent Authority thought that employee's promotion, though against existing vacancy, was to be only for six months extendable for a further period of six months and that during this period employee was to remain on special report for the purpose of evaluation of his performance---Employee on 8-6-1998 was, however, reverted to lower. post on account of evaluation of his performance and against such reversion order, employee filed constitutional petition which was accepted by High Court and intra-court appeal filed thereagaisnt by Department was dismissed---Department contended that employee had been promoted on recommendation of Departmental Promotion Committee on temporary basis with certain conditions and that proper procedure was adopted and after issuing show-cause notice to employee and completing other legal formalities, he was reverted---Validity---Reversion order dated 8-6-1998 was bad; firstly, because it never said that order had been passed by competent authority; secondly said order had been passed without any notice to employee and without mentioning any reason which had weighed in alleged evaluation of his performance and for which reason his performance had allegedly fallen short of required standard---Whether reversion of employee to lower post was to have been ordered without undertaking requisite proceedings as reversion to lower post was a punishment provided for misconduct, was doubtful---Competent authority could not impose condition on trial basis for one year on employee's promotion as he failed to show any rule on the basis of which it catered for such an extraordinary condition, especially when Departmental Promotion Committee had not imposed any such condition---Case of employee was not considered by competent Authority within prescribed period fixed in the order dated 31-5-1997---Contention of department that employee was promoted temporarily or on probation had no force, for even if he was to be considered to be on probation, under rules he was to stand confirmed in his promotion on expiry of period prescribed in order dated 31-5-1997 which had expired on 31-5-1998 whereas he was reverted on 8-6-1998---Department had not produced all relevant documents before High Court, therefore, Division Bench was justified in intra-court appeal, not to consider documents produced as parties were bound by their pleadings---Basic order to the extent of condition was without lawful authority, therefore, superstructure was to fall on ground automatically---Supreme Court, under Art.185(3) of the Constitution was not to interfere with concurrent conclusions arrived at by both the Courts below---Petition for leave to appeal was dismissed---Constitution of Pakistan (1973), Arts.185(3) & 199.

Mst. Murad Begum's case PLD 1974 SC 322; Ghulam Muhammad's case PLD 1983 SC 68; Manzoor Khan's case 1991 CLC Note 370 and Malik Muhammad Ishaque's case PLD 1977 SC 109 rel.

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

----Art. 199---Law Reforms Ordinance (XII of 1972), S.3---Constitutional petition---Relevant documents not produced with the petition---Production of such documents in intra-court appeal---Effect---Petitioner had not produced all relevant documents with constitutional petition before Single Judge of High Court, Division Bench was, therefore justified not to consider documents produced in intra-court appeal as parties were bound by their pleadings.?

Malik Muhammad Nawaz, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Petitioner.

Nemo for Respondent.

2007 S C M R 18

[Supreme Court of Pakistan]

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

SOHAIL AKHTAR ABBASI----Petitioner

Versus

Syed AMIR ALI SHAH----Respondent

Civil Petition No.623 of 2006, decided on 13th September, 2006.

(On appeal from the judgment, dated 11-5-2006 passed by High Court of Sindh, Karachi in Civil Petition No.D-239 of 2006).

(a) Sindh Local Government Elections Rules, 2005---

----Rr. 30(6)(ii) & 35(4)(ii)(d & e)---Constitution of Pakistan (1973), Art.185(3)---Ballot paper---Double stamp mark---Innocent/inadvertent act of voters-Determination-Principles-Dispute was between the candidates for the seat of Taluka Nazim---Petitioner was declared returned candidate after elections but on recounting his certain votes were rejected having double stamp, thus respondent was notified to be the returned candidate---Plea raised by petitioner was that affixing of double stamp did not make a ballot invalid---Contention of respondent was that such double stamp was to disclose the identity of voter, hence such ballot papers were rightly rejected---Validity---Ballot paper which bore double stamp mark of official rubber stamp would, be valid or admissible, if there was nothing to presume that such double stamping was done with the intention on the part of voter to disclose his identity with some pre-arrangement or manipulation with candidate---Whether double stamping of ballot paper in dispute was an innocent and inadvertent act of voter or was done with an intention to disclose his identity, reference would have to be made to the status, education and intellectual faculties etc. of voters in question---Such double stamping of a ballot paper by a voter who was matriculate, could not by any imagination be held to be an innocent act merely done on account of exuberance and eagerness of voters for the success of petitioner or for emphasizing or clarifying voter's choice of candidate---Election Tribunal and High Court were justified in declaring ballot papers bearing double stamping of official rubber stamp as invalid ballot papers and discarding them from count---Judgment passed by High Court did not suffer from any illegality or infirmity calling for interference by Supreme Court---Leave to appeal was refused.?

Irshad Ahmed v. Shafi Muhammad and 5 others 1981 CLC 1332; Pir Bukhsh v. Muhammad Musa and others 1987 CLC 708; Col. (R.) Syed Mukhtar Hussain Shah v. Waseem Sajjad and 30 others PLD 1986 SC 178 and Halsbury's Laws of England, 4th Edn. Reissued Vol.15 distinguished.

(b) Sindh Local Government Election Rules, 2005---

----Rr. 30(6)(ii) & 35(4)(iii)(d & e)---Invalid ballot paper---Scope---Any initials, writing or mark as distinguished from the required figure or mark appearing in ballot paper is ex facie an attempt to disclose the identity of voter.?

Wasim Sajjad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioner.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court and Ch. Arshad Ali, Advocate-on-Record for Respondent.

Muhammad Sharif Qureshi, Senior Civil Judge, Kandiaro (the then Returning Officer) along with original Record on Court notice.

2007 S C M R 25

[Supreme Court of Pakistan]

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

HAQ NAWAZ----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.138 of 2004, decided on 11th August, 2006.

(On appeal from the judgment, dated 1-11-2002 of the Lahore High Court, Lahore passed in Criminal Appeal No.974 of 2001).

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

----S. 302(b)---Constitution of Pakistan (1973), Art. 185(3)---Leave to appeal was granted by Supreme Court to re-appraise the entire evidence.

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

----Ss. 302(b)---Re-appraisal of evidence---Medical and ocular account---Police file, reconstruction of---F.I.R. showed that, five persons were involved in the occurrence wherein deceased was murdered---Two accused were acquitted by Trial Court, on the basis of compromise effected by legal heirs of deceased, while one was declared proclaimed offender and remaining two were sentenced to imprisonment for life--High Court, in exercise of appellate jurisdiction, accepted plea of alibi of co-accused and acquitted him but conviction and sentence of accused was maintained---Plea raised by accused was that eye-witness account of the occurrence was in conflict with medical evidence---Accused further raised the plea that recovery memos and site plan were fake as they were got prepared subsequently after destruction of police file---Validity---In view of eye-witness account of prosecution witnesses, it could not be said that fire made by accused did not land at the right shoulder of deceased, which was confirmed through medical evidence as well---As medical evidence was not in conflict and had not contradicted eye-witness account of prosecution witnesses, therefore, no benefit was accruable to accused---Question of subsequent preparation of site plan and recovery memos pertaining to crime empties by Investigating Officer on account of destruction of police file and judicial portion of file did not carry any adverse effect on prosecution case/evidence produced at trial for the reason that accused was not convicted and sentenced in view of such documents lost/destroyed---Accused was found guilty on the charge mainly in view of evidence of eye-witnesses, medical evidence coupled with motive part of prosecution story---Trial Court as well as High Court had appraised the entire evidence including defence version in its true perspective to which no exception could be taken---Findings of guilt arrived at by both the Courts were not open to any interference by Supreme Court---Appeal was dismissed.

Abdullah Jan and others v. Tila Muhammad and others 1985 SCMR 95 ref.

Hasnat Ahmed Khan, Advocate Supreme Court for Appellant.

Malik Abdul Haq, Advocate Supreme Court (on behalf of Advocate-General Punjab) for the State.

Date of hearing: 11th August, 2006.

2007 S C M R 34

[Supreme Court of Pakistan]

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

Ch. MUHAMMAD ASHRAF----Petitioner

Versus

Rana TARIQ JAVED and others----Respondents

Civil Petition No.1843 of 2005, decided on 20th September, 2006.

(On appeal from the judgment, dated 18-11-2005 passed by the Election Tribunal, Lahore in Civil Miscellaneous No.1 of 2003 in Election Petition No.133 of 2002).

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

---Ss. 55(3) & 63---Civil Procedure Code (V of 1908), O.VI, R.15---Constitution of Pakistan (1973), Art.185(3)----Election dispute---Dismissal of election petition---Petition not verified---Effect---Election Tribunal dismissed election petition on the ground that neither it was verified on oath nor any affidavit was attached with it---Validity---Election Tribunal was justified in holding that no affidavit was annexed to election petition which admittedly was not verified in accordance with law---Election petition not having been filed in compliance with the provisions of S.55 (3) of Representation of People Act, 1976, was liable to be dismissed under S.63 of the Act, as requirement of both the sections were mandatory---Supreme Court declined to interfere with the order passed by Election Tribunal---Appeal was dismissed.

Engineer Zafar Iqbal Jhagra and others v. Khalil-ur-Rehman and others 2000 SCMR 250; Sardar Zada Zafar Abbas and others v. Syed Hasan Murtaza and others PLD 2005 SC 600 and Bashir Ahmed Bhanbhan and another v. Shaukat Ali Rajpur and others PLD 2004 SC 570 rel.

Ch. Muhammad Ashraf, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 20th September, 2006.

2007 S C M R 38

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Sardar Muhammad Raza Khan and Saiyed Saeed Ashhad, JJ

MUSLIM COMMERCIAL BANK LTD. and others----Petitioners

Versus

AHMED ALI and another----Respondents

Civil Petition No.808-K of 2002, decided on 17th July, 2006.

Banking Companies (Recovery of Loans, Advances, Credits and Finances) Ordinance (XXV of 1997) ----

----Ss. 7 & 21---Constitution of Pakistan (1973), Arts.185(3) & 199---Suit for recovery of loan---Appeal to High Court---Constitutional petition to High Court---Scope---Consent of parties, would not confer jurisdiction upon the High Court which it did not inherently possess---Judgment and decree passed by Banking Court being appealable under the relevant laws, only remedy available to respondent was to assail such judgment and decree before a Division Bench of High Court---Invocation of constitutional jurisdiction against execution proceedings before a single Judge of High Court was neither warranted by law nor permissible---Contention that order impugned in constitutional petition being void and without lawful authority, non-availing of alternate remedy of appeal was of no consequence, was repelled because judgment and decree passed by Banking Court with exclusive jurisdiction was neither void nor without jurisdiction---Petition for leave to appeal was converted into appeal and was accepted.

Farzand Raza Naqvi v. Muhammad Din 2004 SCMR 400 and Mst. Kaniz Fatima v. Muhammad Salim 2001 SCMR 1493 rel.

Rizwan Ahmed Siddiqui, Advocate Supreme Court, Miss Wajahat Niaz, Advocate-on-Record (absent) for Petitioners.

Ghulam Qadir Jatoi Advocate Supreme Court for Respondents.

2007 S C M R 41

[Supreme Court of Pakistan]

Present: Javed Iqbal and Raja Fayyaz Ahmad, JJ

GHULAM MUHAMMAD and others----Petitioners

Versus

GOVERNMENT OF BALOCHISTAN and others----Respondents

Civil Petition No.111/Q of 2005 and Civil Revision Nos.400 of 1996 and 121 of 1997, decided on 31st July, 2006.

(On appeal from the judgment, dated 15-8-2005 of the High Court of Balochistan, Quetta passed in Civil Revision No.400 of 1996).

Constitution of Pakistan (1973)---

----Arts. 185(2)(d)(e) & 185(3)---Specific Relief Act (I of 1877), Ss.42 & 54---Conversion of petition for leave to appeal into direct appeal---Principle---Non-raising of objection from office at the time of filing of petition before Supreme Court---Suit filed by plaintiffs was dismissed by Trial Court but Lower Appellate Court allowed appeal and decreed the suit---Judgment and decree passed by Lower Appellate Court was set aside by High Court in exercise of revisional jurisdiction---Plaintiffs filed petition for leave to appeal before Supreme Court to assail the judgment and decree passed by High Court on 21-10-2005---Subsequently on 25-4-2006, application was filed by plaintiffs for conversion of petition for leave to appeal into direct appeal---Plea raised by plaintiffs was that the petition was filed within time and office accepted the petition without any objection regarding its maintainability---Validity---Sole responsibility for not availing remedy of appeal as provided by the Constitution would not rest on the shoulders of the office---Sufficient cause had to be shown for condonation of delay, which occurred in making request for conversion of petition into direct appeal---Supreme Court found that such sufficient cause was lacking---Application seeking conversion of petition for leave to appeal into appeal was filed on 25-4-2006 after an inordinate delay while the petition for leave to appeal was filed on 21-10-2005---Such was not a bona fide mistake, error or misconception with regard to the provisions of Art.185 of the Constitution---Except due to negligent and reckless conduct instead of filing of appeal, petition for leave to appeal was filed by not availing permissible legal remedy against the judgment under appeal---Such conduct of plaintiffs was not condonable in view of law laid down by Supreme Court in case titled Zafar Iqbal Hameed Khan v. Ashiq Hussain and 2 others, reported as 2005 SCMR 1371---Tenure of lapse till the date of filing of application for conversion of petition for leave to appeal into direct appeal was not condonable by enlarging time for the purpose---Plaintiffs failed to make any submission with regard to misconception of law which resulted in filing of petition for leave to appeal---Supreme Court declined to convert petition for leave to appeal into direct appeal---Appeal was dismissed.?

Chairman, N.-W.F.P. Forest Development Corporation and others v. Khursheed Anwar Khan and others 1992 SCMR 1202; Taza Gul and others v. Hafiz Fazal Subhan 2006 SCMR 504 and Muhammad Inayat v. Fateh Muhammad 2003 SCMR 875 distinguished.

Zafar Iqbal Hameed v. Khan v. Ashiq Hussain and 2 others 2005 SCMR 1371 fol.

Syed Ayaz Zahoor, Advocate Supreme Court and M.W.N. Kohli, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 31st July, 2006.

2007 S C M R 46

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Saiyed Saeed Ashhad, JJ

NIZAMUDDIN----Petitioner

Versus

Mst. SIDDIQUE BEGUM and 2 others----Respondents

Civil Petition No.255-K of 2006, decided on 3rd July, 2006.

(On appeal from the order, dated 19-4-2006 of the High Court of Sindh, Karachi in Constitutional Petition No.538 of 2005).

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

----S. 15---Constitution of Pakistan (1973), Art.185(3)---Bona fide personal need of landlady---Concurrent findings of fact given by Courts below---Effect---Landlady filed ejectment petition against tenant on ground that rented shop was required for her son for his personal bona fide need, as the latter (landlady's son) had been relieved from Bank service and he wanted to establish some business for livelihood of his mother and three sisters---Rent Controller allowed the petition and appeal filed thereagainst was dismissed by District Court---High Court in constitutional petition filed by tenant maintained findings of lower Courts---Tenant mainly contended that ground of personal bona fide need had not been proved by landlady inasmuch as she did not disclose nature of business to be run in the rented shop---Validity---In concurrent findings of fact recorded by Courts below it had been established beyond any shadow of doubt that shop in question was required for personal bona fide need of landlady's son who having been relieved from Bank service wanted to run his own business---Tenant failed to point out that concurrent findings of fact recorded by Courts below were result of misreading or non-reading of evidence or High Court, while affirming the same had committed any illegality calling for interference by Supreme Court---Petition for leave to appeal was dismissed.

Ghulam Qadir Jatoi, Advocate Supreme Court for Petitioner.

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

Nemo for Respondents Nos.2 and 3.

Date of hearing: 3rd July, 2006.

2007 S C M R 49

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad and Ch. Ijaz Ahmed, JJ

MUHAMMAD SHARIF----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and others----Respondents

Civil Petition No.1326-L of 2006, decided on 8th September, 2006.

(On appeal from the judgment of the High Court Lahore, dated 30-5-2006 passed in Writ Petition No.2406 of 2006).

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

---Ss. 7 & 17---Constitution of Pakistan (1973), Arts.199 & 185(3)---Suit for recovery of maintenance for last three years---Obligation of husband to maintain his wife---Concurrent findings of fact by Courts below---Effect---Exercise of power by Supreme Court under Art.185(3) of the Constitution---Scope---Plaintiff/respondent filed suit against defendant/petitioner for recovery of maintenance allowance for last three years---Family Court declared that plaintiff was entitled to past maintenance for three months and also for Iddat period---Lower Appellate Court, while accepting appeal thereagainst, found that plaintiff was entitled to recovery of maintenance for last three years and also for Iddat period---High Court upheld the finding of lower Appellate Court---Defendant/petitioner contended that, grant of past maintenance allowance to plaintiff was not in consonance with Injunctions of Islam and that plaintiff did not disclose any cause of action in her plaint---Validity---Muslim husband was under legal obligation to maintain his wife and if she was forced to live away from her husband for no fault on her part even then husband was to provide maintenance to his wife---Courts below did not err in law to grant past maintenance to plaintiff for last three years---Under Ss.7 & 17 of West Pakistan Family Courts Act, 1964, it was not necessary that plaintiff should mention her cause of action in the contents of plaint---Title and contents of plaint clearly showed cause of action which as a document were to be read as a whole---First Appellate Court had all powers of Trial Court and first Appellate Court was justified to re-examine/re-appreciate the evidence on record---First Appellate Court had reversed the finding of fact with cogent reasons and High Court was justified not to disturb the finding of fact while exercising constitutional jurisdiction--Under Art.185(3) of Constitution, Supreme Court was not to interfere with concurrent findings of fact recorded against defendant after proper appreciation of evidence---Constitutional jurisdiction was always discretionary in character and he who sought equity was to come with clean hands---Petition for leave to appeal was dismissed, keeping in view the conduct of defendant.?

Syed Mudassar Altafs case PLD 1993 Lah. 810; Muhammad Nawaz's case PLD 1972 SC 302; Muhammad Aslam's case 1990 CLC 934; Muhammad Ibrahim's case 1991 CLC 1296; Abdul Latif's case 1985 CLC 1184; Controlling Authority/Collector's case 1989 MLD 145; Ahmad Riaz's case 1994 CLC 2403; Zulfiqar Ahmad's case 1996 MLD 1997; Nazar Ahmad's case 1996 MLD 2017; Mirza Shahid Baig's case 2004 CLC 1545; N.S. Venkatagiri Ayyanger's case PLD 1949 PC 26; Syed Azmat Ali's case PLD 1964 SC 260 and Malik Muhammad Ishaque's case PLD 1977 SC 109 rel.

Rashid Ahmad's case PLD 1968 Lah. 93; Muhammad Yousif's case 1980 SCMR 385; Ghulam Nabi's case PLD 1991 SC 543; Shabihur Raza's case PLD 1975 Lah. 690; Mst. Hajran Bibi's case PLD 1981 Lah. 761; Sheikh Abdul Karim's case PLD 1977 Kar. 477 and Muhammad Najeeb's case 1985 CLC 649 ref.

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

----Arts. 185(3) & 199---Constitutional jurisdiction---Scope---Under Art.185(3) of Constitution, Supreme Court was not to interfere with concurrent findings of fact recorded against defendant after proper appreciation of evidence---Constitutional jurisdiction was always discretionary in character and he who sought equity was to come with clean hands.?

Sarfraz Hussain, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

2007 SCMR 54

[Supreme Court of Pakistan]

Present: Javed Iqbal and Raja Fayyaz Ahmad, JJ

PEER MUHAMMAD----Petitioner

Versus

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

Civil Petition No.77/Q of 2006, decided on 3rd August, 2006.

(On appeal from the judgment, dated 2-6-2006 of the High Court of Balochistan, Quetta passed in Civil Petition No.310 of 2006).

(a) Civil Servants Act (LXXI of 1973)---

----S. 10---Constitution of Pakistan (1973), Arts.199 & 212---Constitutional jurisdiction of High Court under Art.199 of the Constitution---Scope---Posting and transfers---Terms and conditions of service---Jurisdiction of High Court---Scope---Question of posting of a government servant squarely falls within the jurisdictional domain of competent authority, subject to law and rules made therefor---Question of posting/transfer relates to terms and conditions of a government servant, Service Tribunal, therefore, has the exclusive jurisdiction to dilate upon and decide such matters---Constitutional jurisdiction of High Court cannot be invoked to get such controversies resolved.

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

----S. 10---Constitution of Pakistan (1973), Arts.185(3), 199 & 212---Posting and transfers---Terms and conditions of service---Jurisdiction of High Court---Scope---Plea of mala fide---Petitioner assailed his transfer order before High Court in exercise of constitutional jurisdiction, on the plea of mala fide but High Court held that in view of the bar contained in Art. 212 of the Constitution, petition was not maintainable---Validity---Jurisdiction of all other Courts was ousted because of the provisions contained in Art. 212 of the Constitution---Orders of departmental authorities, even though without jurisdiction or mala fide could be challenged only before Service Tribunal and jurisdiction of Civil Court including High Court was specifically ousted---Plea of mala fide did not confer upon High Court jurisdiction to act in the matter in view of constitutional ouster as contained in Art. 212 of the Constitution---Service Tribunal had full jurisdiction to interfere in such like matters---Supreme Court declined to interfere in the judgment passed by High Court---Leave to appeal was refused.

Piran Ditta v. Noor Muhammad PLD 1966 Kar. 618 ref.

Kh. Abdul Wahid v. Chairman, WAPDA 1986 SCMR 1534 rel.

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

----Art. 184(3)---Leave to appeal---Maintainability---Principles---Leave to appeal is competent only if the case involves a substantial question of law of public importance, which is sine qua non for invocation of jurisdiction as conferred upon Supreme Court under Art. 184 (3) of the Constitution---Where neither any question of public importance is involved nor enforcement of any of the fundamental rights, is sought leave to appeal may not be granted under Art.184(3) of the Constitution.

Director Food v. Rashid Ahmad 1990 SCMR 1446; Muhammad Manzoor Ahmad v. Commissioner, Multan Division 1990 SCMR 560; Sattan v. Rani 1989 SCMR 1677 and Government of Punjab v. Khalid Hussain Gill 1989 SCMR 748 rel.

Syed Ayaz Zahoor, Advocate Supreme Court and M.W.N. Kohli, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 3rd August, 2006.

2007 S C M R 58

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, Hamid Ali Mirza and Karamat Nazir Bhandari, JJ

FAISAL----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.262 of 2005, decided on 13th April, 2006.

(On appeal from the judgment, dated 12-7-2005 of the High Court of Sindh Bench at Sukkur passed in Criminal Appeal No.35 of 2004).

Penal Code (XLV of 1860)---

---S. 302(b)/34---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Guilt of accused established through extra-judicial confession and circumstantial evidence-Allegation against accused was that he committed murder of deceased who used to reside with the former in a shop---Complainant, real brother of deceased, allegedly received message from another prosecution witness to reach at a certain place and on complainant's .arrival there along with other witnesses, accused confessed his guilt, stating that he committed murder of deceased as the latter insisted accused for sodomy---Trial Court convicted accused and sentenced him to imprisonment for life---High Court, on appeal, maintained the conviction and sentence awarded to accused---Validity---Extra-judicial confession of accused coupled with the facts that accused went to witness of confession in early hours of the morning, leaving his duty place without informing his officers, recovery of dead body from place of residence both of accused and deceased, absence of evidence of plea of alibi,- concealment of his bag at roof of bathroom of mosque were pieces of evidence which stood established against him in Courts below---No illegality, misreading or non-reading of evidence was found in concurrent findings of guilt recorded against accused by Courts below---Leave to appeal was refused.

Ghulam Nabi Soomro, Advocate Supreme Court for Petitioner.

Sarwar Khan, Additional Advocate-General, Sindh for the State.

Date of hearing: 13th April, 2006.

2007 S C M R 61

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

ABDUL REHMAN through L.Rs.----Petitioners

Versus

Haji MUHAMMAD YOUSAF through L.Rs.----Respondents

C.P.L. As. Nos.518-K and 519-K of 2005, decided on 3rd January, 2006.

(On appeal from the judgment of Sindh High Court, Circuit Court Hyderabad, dated 15-4-2005 passed in Civil Revision Applications Nos.100 and 101 of 1997).

Specific Relief Act (I of 1877)---

----S. 12---West Pakistan Land Revenue Act (XVII of 1967), S.168---Qanun-e-Shahadat (10 of 1984), Arts.76 & 77--Evidence Act (I of 1872), Ss.67 & 68---Constitution of Pakistan (1973), Art.185(3)---Suit for specific performance of agreement, possession and mesne profits--Attorney not examined to prove contents of Power of Attorney---Non­examination of attesting witnesses of sale agreement---Failure to prove death of attesting witnesses---Photocopy was exhibited without objection---Failure to produce evidence qua lost document---Scope---Plaintiff lessor filed suit for possession and mesne profits against defendant/lessee on ground that the former had leased out suit-land for five years to the latter, from 1966-67 to 1971-72---Balance lease consideration, as per terms of lease deed, was payable on 15-3-1967 and in the event of failure lease document was to be treated as cancelled automatically---Defendant got the possession of land but balance lease money was, however, not paid by him whereupon plaintiff filed suit against defendant---Defendant controverted the averments of plaint and, while admitting ownership of plaintiff and lease of land in his favour, took plea that plaintiff had offered to sell suit-land to him and an agreement of sale dated 28-3-1970 was executed between the parties in this respect--Defendant further stated that sale agreement was obtained in the name of third person as Benamidar and plaintiff was required under the said agreement to obtain all clearance certificates from Revenue Department for effective finalization of transaction but he failed to do so---During pendency of suit, defendant in the year 1976 filed suit for specific performance of agreement against-plaintiff-Plaintiff/lessor while contesting suit for specific performance asserted that he had entered into agreement of sale with third person (not defendant/lessee) but possession of suit-land never handed over to him and by mutual understanding between the parties, agreement to sell was rescinded---Both the suits were consolidated and Trial Court while decreeing suit for possession and mesne profit, dismissed suit for specific performance---On appeal, lower Appellate Court, while reversing the finding of Trial Court, decreed suit for specific performance and dismissed suit for possession and mesne profit---High Court under revisional jurisdiction set aside the finding of lower' Appellate Court and restored that of Trial Court---Plaintiff/lessor contended that defendant did neither examine alleged attorney of the former (plaintiff) who executed sale agreement in favour of the latter (defendant) nor the two attesting witnesses of said sale agreement under Arts.76 & 77 of Qanun-e-Shahadat, 1984---Defendant, on the other hand, contended that provisions with regard to examination of two attesting witnesses of agreement were not to be applicable to his case as law of evidence could not be applied retrospectively and, moreover, alleged attorney of plaintiff/lessor and both the attesting witnesses had died, hence, they could not be examined---Validity---Under Ss.67 & 68 of Evidence Act, 1872, defendant/lessee was bound to examine alleged attorney of plaintiff and both the attesting witnesses of agreement to sell as mere production of copy of agreement was not sufficient to prove its contents---Defendant also failed to prove death of these three star witnesses which was necessary in order to permit recording of secondary evidence with regard to proof of execution of sale agreement---Power of attorney allegedly executed in favour of deceased attorney by plaintiff and relied upon by defendant, was not brought on record and only its photocopy was placed on record which was not to be a conclusive proof of execution of power of attorney---Defendant was bound by law to prove original power of attorney as well as its contents---In absence of any evidence as to loss of such document, photocopy, even if taken on record and exhibited without objection was not to qualify the document as admissible piece of evidence--Even if, an agreement of sale regarding suit-land was assumed in favour of defendant/lessee and that he had paid a part of consideration qua sale agreement without delivery of possession by plaint was not to create any right, title or interest in his favour---Ownership of plaintiff/lessor, on the other hand, had been admitted and lease in favour of defendant/lessee was not disputed and purported sale of land in favour of the latter was not proved---Concurrent findings of fact recorded by Trial Court and High Court did not suffer from any inherent legal defect, impropriety, misreading of record, misconception of law or error of jurisdiction---Petition for leave to appeal was dismissed.

Muhammad Yousuf Leghari, Advocate Supreme Court and Naraindas C. Motiani, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 3rd January, 2006.

2007 S C M R 66

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Saiyed Saeed Ashhad, JJ

QAMARUDDI N----Petitioner

Versus

PAKISTAN through Secretary, Establishment Division, Islamabad and another----Respondents

Civil Petition No.226-K of 2006, decided on 4th July, 2006.

(On appeal from the judgment, dated 18-3-2006 of Federal Service Tribunal, Islamabad, in Appeal No.3(K)(CS) of 2006).

Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---

----R. 12-A---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art.212(3)---Date of birth of civil servant---Correction of---Scope---Petitioner while joining his service in the year 1977, recorded his date of birth as 1-4-1946---Petitioner later on, in order to get his date of birth corrected, filed appeal before Service Tribunal, after making representation to Government---Petitioner's, appeal was dismissed by Service Tribunal---Petitioner contended that he was in fact born on 1-4-1948 but at the time of joining service, his date of birth was inadvertently written as 1-4-1946---Validity---Under Rule 12-A of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, date of birth once recorded at the time of joining Government Service was to remain final and thereafter no change in date of birth was permitted---Unwarranted claims and attempts to show error in "date of birth" were asserted by civil servants when they were advancing towards age of retirement, by fabricating or manipulating documents in that behalf---Such practice was to be discouraged and effectively curbed---Grievance agitated by petitioner did not make out any substantial question of law of public importance---Judgment of Service Tribunal did not suffer from any illegality, defect or impropriety---Petition for leave to appeal was dismissed.

Petitioner in person.

Nemo for Respondents.

2007 S C M R 68

[Supreme Court of Pakistan]

Present: Javed Iqbal and Raja Fayyaz Ahmed, JJ

Haji REHMATULLAH and another----Petitioners

Versus

COLLECTOR CENTRAL EXCISE AND LAND CUSTOMS, QUETTA and others----Respondents

Civil Petition No.17-Q of 2006, decided on 14th September, 2006.

(On appeal from the judgment, dated 12-12-2005 of the High Court of Balochistan, Quetta, passed in Civil Petition No.331 of 2005).

Customs Act (IV of 1969)---

----Ss. 201 & 181---Customs General Order No.5 dated 19-4-1992---Customs Auction Rules, 1996---Constitution of Pakistan (1973), Arts.185(3) & 199---Confiscated goods---Auction by Customs Authority---Tentative assessment of goods by Customs Authority---Goods sold below market value---Remedy for aggrieved person qua sold goods---Constitutional jurisdiction of High Court---Scope---Mobile squad of Customs Authority recovered wrist watches from especially designed cavities of bus travelling on highway---Authority's official issued show-cause notice whereupon petitioners claimed ownership of the watches---Authority, under S.181 of Customs Act, 1969, directed to release watches subject to payment of redemption fine---Petitioners after depositing fine amount, submitted application for release of said watches whereupon they came to know that said watches had already been released to CSD shop for sale---Authority informed petitioners to take amount as received by it---Petitioners being aggrieved by action of Authority filed constitutional petition before High Court which was dismissed---Petitioners contended; that High Court did not appreciate legal and factual aspects of controversy in its true perspective and provisions contained in S.201 of Customs Act, 1969 had been misconstrued and misinterpreted; that mandatory formalities as contemplated under S.201 of Customs Act, 1969, read with CGO No.5 dated 19-4-1992 escaped notice of High Court which resulted in miscarriage of justice; that Customs Auction Rules, 1996, had been violated while disposing of confiscated goods by Authority and that confiscated goods were sold far below the market value of goods---Validity---During pendency of constitutional petition, the goods in question had been auctioned by Customs Authorities and proceeds thereafter deposited in Government treasury, therefore it was not possible for High Court to restore original goods to the petitioners---Authority though had completed necessary formalities as envisaged under S.201 of Customs Act, 1969, but, had the Adjudicating Authority passed order under S.181 of the Customs Act, 1969, for release of goods, on payment of fine earlier, the question of disposal of seized goods was not to have arisen---Price of goods initially determined tentatively by seizing official of Authority was not to be considered as final---Question of fixation of price being a question of fact was not to be determined by High Court in exercise of constitutional jurisdiction---Customs Authority was vested with powers to assess actual value of goods for purpose of customs duty and in absence of any evidence contrary to determination of such value, the assessment of Authority was to be accepted---Customs Authority was required to adopt measures for obtaining better results qua auction of seized goods so that consequential legal rights or benefits accruing from such auction proceedings to either party were not jeopardized---Petitioners were at liberty to approach civil court for redressal of their grievance subject to all legal exceptions---Petition for leave to appeal was decided accordingly.?

Obedullah v. Inspector-General, Frontier Corps 1997 SCMR 1833 and Raza Muhammad v. Inspector-General, Frontier Corps 1999 MLD 3414 distinguished.

Sheikh Ghulam Muhammad, Advocate Supreme Court and Gohar Yakub Yousufzai, Advocate-on-Record for Petitioners.

Ch. Mumtaz Yousaf, Standing Counsel, Muhammad Yahya, Collector Customs, Mamtaz Ali Khosa, Deputy Collector Customs and Haji M. Azam, Law Officer for Respondents.

Date of hearing: 14th September, 2006.

2007 SCMR 73

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

Syed ASHFAQ HUSSAIN SHAH----Petitioner

Versus

N.E.D. UNIVERSITY OF ENGINEERING AND TECHNOLOGY, KARACHI and others-Respondents

Civil Review Petition No.17-K of 2005 in Civil Petition No.772-K of 2004, decided on 7th March, 2006.

(On review from the judgment, dated 20-7-2005 in Civil Petition No.72-K of 2004 passed by this Court).

Sindh Service Tribunals Act (XV of 1973)---

----S. 4---N.E.D. University of Engineering and Technology Act (III of 1977), Ss.28(iv), 38 & 46(1)(a)---N.E.U. University of Engineering and Technology, Karachi, Employees Efficiency and Discipline Statutes, 1990---Constitution of Pakistan (1973), Arts.188 & 212(3)---Review of Supreme Court judgment---Retirement under duress and compulsion---Retraction---Scope---Departmental appeal not dismissed on ground of limitation---Service appeal filed within time not to be dismissed by Service Tribunal---Proper and relevant case-law not referred to in judgment sought to be reviewed---Petitioner being an employee of University submitted an application before Vice-Chancellor for proceeding on Leave Preparatory to Retirement w.e.f. 16-12-2002, which was accepted, allowing petitioner to retire on completion of 25 years qualifying service w.e.f. 13-10-2003---Petitioner filed departmental appeal on 31-7-2003 for withdrawal of order of retirement but his appeal was rejected---Petitioner preferred an appeal before Sindh Service Tribunal, stating therein that option exercised by him for retirement on completion of 25 years qualifying service was not voluntary but under duress---Service Tribunal allowed appeal and held that appeal before Tribunal was competent, though departmental appeal was barred by time having not been rejected on the said ground and further that exercise of option by petitioner for retirement was not voluntary but under duress---Appeal filed thereagainst by the University was accepted by Supreme Court---Petitioner filed review petition against the judgment of Supreme Court, contending therein that Supreme Court had erred in law in holding that Service Tribunal dismissed appeal on ground that departmental appeal of petitioner was barred by limitation which finding was contrary to decision of larger Bench of Supreme Court and that Supreme Court erred in law in holding that option once exercised was not to be revoked in the circumstances of the present case---Petitioner further contended that departmental appeal of civil servant having not been dismissed on ground of limitation, service appeal filed within time could not be dismissed by Service Tribunal on ground of being barred by limitation and that no inflexible rule of law existed that option of retirement once exercised was final and could not be retracted under any circumstance---Validity---Record showed that Vice-Chancellor had made up his mind to knock down a subordinate employee of University---Option to proceed on Leave Preparatory to Retirement being not voluntary rather obtained under duress and compulsion, the same was void ab initio and subsequent orders passed in series could not have legal effect---Petitioner's retirement was to become effective from 13-10-2003 whereas he made appeal prior to it i.e. on 31-7-2003 to withdraw his option for Leave Preparatory to Retirement and to continue in service---Plea of involuntary retirement having been obtained under duress and compulsion was not attended to by Supreme Court in detail, therefore, the same being apparent on the face of record was to be a good ground for review---Service Tribunal's finding as to involuntary retirement obtained under duress and compulsion, based on cogent reasons, was not to be interfered with by Supreme Court as the same was not a question of law but of fact which had attained finality after finding of Service Tribunal, especially when there was no misreading and non-reading of the facts of the case---Departmental appeal of civil servant having not been dismissed on ground of limitation, service appeal filed within time could not be dismissed by Service Tribunal as an incompetent appeal---Where departmental appeal was not disposed of on ground that same was barred by time, the plea of said bar could not be agitated before Service Tribunal or before Supreme Court as the said plea being mixed question of fact and law was not to be agitated before Supreme Court as it required an inquiry---Relevant case-law having not been brought to the notice of Supreme Court at the time of hearing of petition, this lapse was to provide ground for review of judgment sought to be reviewed---No inflexible rule of law existed that option of retirement once exercised was final and could not be retracted under any circumstance---Power of rescinding an order till decisive step was taken, was not principle of law but if the order was illegal then perpetual rights were not to be taken on the basis of illegal order---Observations, reasoning and law showed that there was error apparent on the face of record and admitted facts were not attended to by Supreme Court, hence, there were sufficient grounds for review of judgment sought to be reviewed---Judgment reviewed was reversed/set aside---Judgment of Service Tribunal was restored---Leave to appeal was decline.?

Muhammad Jan Marwat and another v. Nazir Muhammad and 17 others 1997 SCMR 287; and Abdul Nabi v. Government of West Pakistan through Chief Secretary, Lahore and another PLD 1973 Quetta 4 rel.

Government of Sindh through Secretary S&GAD and another v. Raja Muhammad Inayat Khan 2000 SCMR 1964; Noor-uz-Zaman Ahmad v. Punjab Province 1984 PLC (C.S.) 864; Noor Ahmed v. Divisional Forest Officer, Faisalabad 1984 PLC (C.S.) 1085 and Muhammad Rafique v. Pakistan Railways 1995 SCMR 904 ref.

State Bank of Pakistan v. Khyber Zaman and others 2004 SCMR 1426; Anwarul Haq v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others 1995 SCMR 1505; The Chairman, P.I.A.C. and others v. Nasim Malik PLD 1990 SC 951; Province of Punjab through Deputy Director Food, Rawalpindi v. Muhammad Iqbal, Ex-Food grains Inspector 1984 SCMR 334; Secretary Government of Punjab, Food and Cooperation Department v. Shamoon Bahadur PLD 1979 SC 835; Ahsan Ali and others v. District Judge and others PLD 1969 SC 167; Jai Ram v. Union of India AIR 1954 SC 584 and Anwar Muhammad v. General Manager, Pakistan Railways, Lahore 1995 SCMR 950 distinguished.

The Chairman, P.I.A.C. and others v. Nasim Malik PLD 1990 SC 951 dissented from.

Petitioner in person.

Muhammad Tasneem, Advocate Supreme Court and Ahmadullah Faruqui, Advocate-on-Record for Respondents.

?Date of hearing: 9th January, 2006.

2007 S C M R 85

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad and Ch. Ijaz Ahmed, JJ

RASOOL BUKHSH and another----Petitioners

Versus

MUHAMMAD RAMZAN----Respondent

Civil Petition No.1257-L of 2002, decided on 29th August, 2006.

(On appeal from the judgment, of the Lahore High Court, Multan Bench, dated 25-2-2002 passed in C.M. No.446/C of 2002 and C.M. No.171 of 2002 in Civil Revision No.445-D of 2001).

(a) Registration Act (XVI of 1908)---

----S. 49---Registered document---Scope---Registered document has sanctity attached to it and stronger evidence is required to cast aspersion on its genuineness---Such document is not only binding on the parties in the document but is equally applicable to a third party.

Mirza Muhammad Sharif's case NLR 1993 Civil 148 and Gosto Beharidas's case AIR 1956 Kalkata 449 rel.

(b) Power of attorney---

----Sale through attorney---Principle---Person who has been validly authorized to alienate property of another, has to satisfy the Court that at the time of entering into a transaction of sale of a property, the principal was not available---If there is no such evidence, then the transaction does not hold good, unless it is established on record that the transaction has been made with knowledge and with the consent of principal.

Fida Muhammad's case PLD 1985 SC 341 rel.

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

----S. 42---Contract Act (IX of 1872), S.202---Constitution of Pakistan (1973), Art.185(3)---Irrevocable power of attorney---Sham transaction---Concurrent findings of fact recorded by the Courts below---Plaintiff assailed validity of registered sale-deed executed by his brother in favour of defendant---Suit property was owned by plaintiff, for which earlier he executed power of attorney in favour of his brother, which had been revoked but his brother executed sale-deed on the basis of already revoked power of attorney---Suit was decreed by Trial Court in favour of plaintiff---Judgment and decree passed by Trial Court was maintained by Lower Appellate Court as well as by High Court---Plea raised by defendant was that the power of attorney in favour of brother of plaintiff was irrevocable under S.202 of Contract Act, 1872---Validity---As the plaintiff had already cancelled the power of attorney before execution of sale-deed in question, such type of transactions were called sham transactions---Power of attorney did not contain. any clause that the same had been executed for consideration, therefore, contention of defendant that power of attorney could not be revoked by the principal had no force in view of S.202 of Contract Act, 1872---High Court had held that such type of sales were not genuine---All the Courts below had given concurrent findings against the defendant after proper appreciation of evidence---Supreme Court declined to interfere in the concurrent conclusions arrived at by the Courts below while exercising power under Art. 185 (3) of the Constitution---Defendant failed to point out any infirmity or illegality in the judgment passed by High Court---Leave to appeal was refused.

Sardar Ahmad Khan's case PLD 1950 Pesh. 45; Wali Muhammad's case PLD 1989 Lah. 440; Suleman's case PLJ 2000 Lah. 1723 and Maqsood Ahmad's case PLD 2003 SC 31 rel.

Abdus Sadiq Chaudhry, Advocate Supreme Court with Muhammad Aslam Chaudhry, Advocate-on-Record for Petitioners.

Nemo for Respondent.

2007 SCMR 91

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ

ABDUL RAUF----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.36 of 2006, decided on 24th August, 2006.

(On appeal from the judgment, dated 14-12-2005 of the High Court of Balochistan, Quetta in Criminal Appeal No.98 of 2003).

Penal Code (XLV of 1860)---

----Ss. 302 (b) & 324---Constitution of Pakistan (1973), Art.185 (3)---Reappraisal of evidence---Abscondence---Injured complainant---Mitigating circumstances---Effect---Accused was arrested after remaining absconder for seven months and was convicted and sentenced to death on four counts for murder of four persons---Plea raised by the accused was that statement of sole witness was not properly appreciated by the Courts below---Validity---Prosecution was able to bring on record the testimony of injured complainant, who supported the case of prosecution as disclosed in F.I.R.---Testimony of complainant was found true, convincing and trustworthy by Trial Court---No inherent defect was found in her evidence as she was subjected to lengthy cross-examination but nothing material was brought on record to doubt her veracity---Accused admitted his abscondence and was arrested after about seven months of the incident which was a strong corroborative piece of evidence against him---Defence witnesses were cooked one and were not proved relevant or trustworthy, therefore, their testimony was rightly rejected---When prosecution case and defence version were put in juxtaposition, the former seemed to be true and reliable and latter was manipulated and managed one hence not relevant at all---In the event of proof of charge of Qatl-e-Amad, normal penalty under the law, was death---Mitigating circumstances must be shown for taking a lenient view for the award of lesser penalty, which was lacking---Accused could not point out any illegality, misreading or non-appraisal of evidence warranting interference in the judgment passed by High Court---Accused had committed murder of four innocent persons, as such he was rightly convicted and sentenced to death on four counts and sentence for causing injuries was also maintained---Leave to appeal was refused.

Arshad Ali Ch. Advocate Supreme Court for Petitioner.

Mehmood Raza, Additional Advocate-General, Balochistan.

Date of hearing: 24th August, 2006.

2007 S C M R 97

[Supreme Court of Pakistan]

Present: Ch. Ijaz Ahmed and Syed Jamshed Ali, JJ

PAKISTAN TOBACCO BOARD and another----Petitioners

Versus

TAHIR RAZA and others----Respondents

Civil Petition No.320-P of 2006, decided on 8th June, 2006:

(On appeal from the judgment, dated 29-5-2006 passed by the Peshawar High Court in Writ Petition No.1534 of 2004).

(a) Pakistan Tobacco Board Ordinance (I of 1968)---

----S. 30---Pakistan Tobacco Board (Service) Rules, 1985, R.20---Constitution of Pakistan (1973), Art.185(3)---Re-employment, grounds of---Jurisdiction---Petitioner was working in Pakistan Tobacco Board, as Secretary in BS-19, and after his retirement and on recommendation of Chairman Pakistan Tobacco Board, petitioner was re-employed on contract basis---High Court issued writ of quo warranto and such re-employment was declared illegal---Validity---Not only it was the President of Pakistan who was repository of discretion but also that re-employment was permissible under R.20 of Pakistan Tobacco Board (Service) Rules, 1985, only in public interest---Merely because the petitioner was described as hardworking and efficient officer, did not authorize the Federal Government to bypass the rules---Federal Government did not challenge the order of High Court and the petition was brought by the Tobacco Board and the Secretary---Such fact spoke loud that it was not the Federal Government who was interested to retain the petitioner, it was in fact Pakistan Tobacco Board, who had initiated the proposal and wanted to see the petitioner in service---Mere notification of Federal Government was not sufficient to answer the writ of quo warranto, as such issuance of notification was not enough---Petitioner had to demonstrate that his appointment was in accordance with law and the rules---Supreme Court declined to interfere in the judgment passed by High Court---Leave to appeal was refused.

Chairman, East Pakistan Railway Board, Chittagong and another v. Abdul Majid Sardar, Ticket Collector PLD 1966 SC 725; Dr. Sher Bahadur Khan Panee, Deputy Inspector-General of Prisons, Northern Range, Peshawar v. The Government of West Pakistan through the Chief Secretary, West Pakistan Government, Lahore PLD 1956 Pesh. 77; A.R. Azar, Deputy Chief Engineer, West, North-Western Railway, Lahore and others v. The Federation of Pakistan and another PLD 1958 Lah. 185; Muhammad Azam Malik v. Ghulam Murtaza Buttar and 3 others 1993 PLC (C.S.) 253 and The University of Mysore and another v. C.D. Govinda Rao and another AIR 1965 SC 491 ref.

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

----Art. 199(1)(b)(ii)---Writ of quo warranto---Object and scope---Such writ is to inquire from a person, the authority of law under which he purports to hold public office and it is primarily inquisitorial and not adversarial for the reason that a relator need not be a person aggrieved but also that while a person is holding a public office without any legal warrant, he is taxing public exchequer besides causing injury to others who may be entitled to that office---High Court, keeping in view the nature of such proceedings, can undertake such an inquiry as it may deem necessary in the facts and circumstances of a particular case including examination of the entire relevant record---Such exercise can be done suo motu, even if attention of High Court is not drawn by the parties concerned.

Lahore Improvement Trust, Lahore through its Chairman v. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others PLD 1971 SC 811 and Chairman, East Pakistan Railway Board, Chittagong and another v. Abdul Majid Sardar, Ticket Collector PLD 1966 SC 725 rel.

Qazi Muhammad Anwar, Advocate Supreme Court and Fateh Muhammad Khan, Advocate-on-Record for Petitioners.

Nemo for Respondents.

2007 S C M R 105

[Supreme Court of Pakistan]

Present: Javed Iqbal and Raja Fayyaz Ahmed, JJ

Sardar NASEER AHMED MOOSIANI----Petitioner

Versus

CHIEF EXECUTIVE/CHIEF SECRETARY, GOVERNMENT OF BALOCHISTAN, QUETTA and others----Respondents

Civil Appeal No.1453 of 2006 and Civil Petition No.92-Q of 2006, decided on 18th August, 2006.

(On appeal from the judgment, dated 25-7-2006 of the High Court of Balochistan, Quetta, passed in Civil Petition No.223 of 2006).

Balochistan Local Government Ordinance (XVII of 2001)---

----S. 21---Notification No.5-41/2004(BLCEA)/Vol-VIII/2692-2700, dated 12-5-2006---Constitution of Pakistan (1973), Art.185(3)---Resignation---Genuineness and authenticity---Determination---Chief Minister, powers of---Grievance of petitioner was that he being Nazim had denied having tendered any resignation from the seat but alleged resignation was accepted by the Government---Validity---Leave to appeal was granted by Supreme Court to consider; whether legal and factual aspects of the controversy were appreciated in its true perspective by High Court, while dismissing constitutional petition preferred on behalf of the petitioner; whether genuineness and authenticity of resignation allegedly tendered by petitioner was above board or otherwise; whether Chief Minister had acted with diligent application of mind while exercising powers as conferred upon him under S.21 of Balochistan Local Government Ordinance, 2001, and accepted alleged resignation tendered by petitioner; whether acceptance of resignation smacked of mala fides specially when a categoric denial was made for tendering such resignation on behalf of petitioner and published in different newspapers; whether petitioner had performed his functions as Nazim after tendering alleged resignation and it was in the knowledge of Provincial Government; whether petitioner had any legal right to claim seat of Nazim on the basis of Notification No.5-41/2004(BLCEA)/Vol-VIII/2692-2700, dated 12-5-2006, whereby officiating charge of Nazim was given to him and whether judgment passed by High Court was in consonance with the law declared by Supreme Court in case titled Muhammad Munir-ul-Haq v. Muhammad Latif Chaudhry, reported as 1992 SCMR 2135.?

Muhammad Munir-ul-Haq v. Muhammad Latif Chaudhry 1992 SCMR 2135; Farzand Ali v. Province of West Pakistan through Secretary Department of Agriculture, Government of West Pakistan, Lahore PLD 1970 SC 98; Gokaraju Rangaraju v. State of Andhra Pradesh AIR 1981 SC 1473; Secretary, Government of Punjab Food and Cooperation Department v. Shamoon Bahadur PLD 1979 SC 835; Province of Punjab through Deputy Director, Food Rawalpindi Region v. Muhammad Iqbal 1984 SCMR 334; Kuchwar Line and Stone Co. Ltd. v. Secretary of State AIR 1937 Pat. 65; Abraham Reuben v. The Karachi Municipality AIR 1929 Sindh 69; Union of India v. Gopal Chandra Misra AIR 1978 SC 694; Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382; Khuda Bukhsh v. Khushi Muhammad PLD 1976 SC 208; Mst. Rehmat Bibi v. Punnu Khan 1986 SCMR 962, Muhammad Ibrahim Munshey v. Province of West Pakistan PLD 1968 SC 1; WAPDA v. Abdul Rashid Dar 1990 SCMR 1513; Province of Punjab v. Ikramul Haq 1986 SCMR 1994; Mazhar Ali v. Federation of Pakistan 1992 SCMR 435; Messrs Macdonald Layton Constrain Ltd. v. Punjab Employees Social Security Institution PLD 1991 SC 1055; Chairman District Screening Committee, Lahore v. Sharif Ahmad Hashmi PLD 1976 SC 258 and Messrs Mumtaz Industries v. IDBP PLD 1991 SC 729 rel.

Syed Ayaz Zahoor, Advocate Supreme Court and M.W.N. Kohli, Advocate-on-Record for Petitioner.

Salahuddin Mengal, Advocate-General for Official Respondent.

Kamran Murtaza, Advocate Supreme Court and Mir Aurangzeb, Advocate-on-Record for Intervener.

2007 S C M R 108

[Supreme Court of Pakistan]

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

MUHAMMAD ISHAQUE----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.115 of 2004 and Jail Petition No.246 of 2002, decided on 8th August, 2006.

(On appeal from the judgment, dated 10-6-2002 passed by the Lahore High Court Rawalpindi Bench, Rawalpindi in Criminal Appeal No.498 of 2000).

Penal Code (XLV of 1860)---

----Ss. 302 & 324---Reappraisal of evidence---Previous enmity---Conflict between ocular and medical evidence---Effect---Trial Court convicted accused/appellant under Ss.302 & 324, P.P.C. and sentenced him to life imprisonment---High Court on appeal upheld the finding of Trial Court---Validity---Prosecution failed to explain delay in lodging F.I.R.---Complainant allegedly witnessed the murder of his real brother but in spite of that he did not go to police station to promptly lodge F.I.R.---Enmity between accused and complainant including eye-witnesses having been proved, the ocular testimony of complainant side required strong support from unimpeachable source of evidence---Prosecution sought corroboration from motive but in presence of proved enmity between the parties, motive was to cut both ways and was to be equally a motive for false charge---Gun recovered from possession of accused was not to be taken as a corroborative evidence as the same was licensed one and, moreover, gun did not match with all the four empties allegedly recovered from place where accused fired at the deceased---Site plan showed that deceased was fired at from a distance of 132 feet but there was ' burning on all four inlet wounds of deceased---Burning on wounds was to occur when muzzle was at a distance of 5 to 6 feet from victim; and burning from a distance of 132 feet was not possible---Nature of injuries caused to deceased belied the prosecution version as to distance from which deceased was fired at---Neither any pellets were recovered from premises (mosque) nor any child receiving lesson from complainant was ever examined---Accused was acquitted in circumstances.?

Ch. Afrasiab Khan Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Appellant (in both cases).

Mehmood A. Sheikh, Advocate Supreme Court for the State.

Date of hearing: 8th August, 2006.

2007 S C M R 112

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad and Ch. Ijaz Ahmed, JJ

NAIK MUHAMMAD----Petitioner

Versus

MAZHAR ALI and others----Respondents

Civil Petition No.1946-L of 2004, decided on 7th September, 2006.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 11-5-2004 passed in Writ Petition No.5767 of 2004).

West Pakistan Land Revenue Rules, 1968---

----R. 17---Constitution of Pakistan (1973), Arts.4 & 199---Lambardar, appointment of---Constitutional jurisdiction of High Court under Art.199 of the Constitution in matters falling in jurisdiction of Provincial Board of Revenue---Scope---Petitioner was appointed as Lambardar by District Officer (R) on recommendations of concerned authority---Respondent filed appeal against appointment of petitioner before Executive District Officer (R) which was accepted and respondent was appointed as Lambardar---Petitioner filed revision petition before Member, Board of Revenue, who accepted the same---Respondent filed constitutional petition against finding of Member, Board of Revenue, which was 'accepted by High Court---Petitioner contended that High Court had erred in law to set aside the order of Member Board of Revenue who had the authority under law to decide the matter rightly or wrongly and mere fact that decision was incorrect did not render the decision of Board of Revenue as without lawful authority---Validity---High Court had jurisdiction to take cognizance of the matter decided in discretion exercised by Member Board of Revenue---Contention of the petitioner that Member Board of Revenue had a right to decide a case rightly or wrongly had no force in view of Art.4 of the Constitution---Any error on the part of Board of Revenue in understanding the law, in applying it or in laying down the law was to be corrected in constitutional jurisdiction by High Court---Member, Board of Revenue had misread the record and reversed the findings of lower Appellate Court without any justification; therefore High Court was justified not to remand the case to Member Board of Revenue---High Court had given finding of fact after proper appreciation of evidence and accepted order of Executive District Officer (R) with cogent reasons---Supreme Court declined interference with the finding of fact recorded by High Court while exercising power under Art.185(3) of the Constitution---Leave was refused.?

Muhammad Yousif's case 1996 SCMR 1581; Haji Noorwar Jan's case PLD, 1991 SC 531 Utility Store Corporation Pakistan Ltd.'s case PLD 1987 SC 447 and Agha Muhammad Ahmad's case 1994 SCMR 2032 rel.

Abdul Ghafoor's case 1982 SCMR 202; Zulfiqar Khan Awan's case 1974 SCMR 530 and Muhammad Hussain Munir's case PLD 1974 SC 139 ref.

Sh. Mansoor Akhtar, Advocate-on-Record for Petitioner.

Malik Amjad Pervaiz, Advocate Supreme Court for Respondents.

2007 S C M R 116

[Supreme Court of Pakistan]

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

MAQBOOL AHMAD and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.28 of 2006, decided on 9th August, 2006.

(On appeal from the judgment, dated 30-9-1997 passed by the Lahore High Court, Multan Bench, Multan in Criminal Appeal No.3 of 1997).

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

----S. 10(4)(3)---Anti-Terrorism Act (XXVII of 1997), S.38---Constitution of Pakistan (1973), Art.12---Procedural and substantive law---Retrospective effect---Scope---Trial Court convicted accused/appellant under S.10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and sentenced him to life imprisonment---High Court upheld the finding of Trial Court---Accused contended that, he was not to be charged and convicted under S.10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, for the reason that the said section was introduced through amendment in December, 1997 whereas offence had taken place on 5-6-1997; that S.10(3) of the Ordinance was applicable in the case of accused and that accused was not to be tried by Anti-Terrorism Court as offence was committed by accused before promulgation of Anti-Terrorism Act, 1997---Validity---Accused had committed offence on 5-6-1997 when according to S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, punishment for offence committed by, accused was to extend to 25 Years and whipping numbering 30 stripes but S.10(4) of the Ordinance was introduced after date of commission of offence, hence, no punishment was to be awarded under said section, being in glaring violation of Art.12 of. the Constitution---Person accused of having committed an offence before commencement of Anti-Terrorism Act, 1997 was to be tried by the Court constituted under the said Act but punishment awarded was to be in accordance with law prevailing at the time when offence was committed; provided the offence otherwise constituted a terrorist act---Trial of accused by Anti-Terrorism Court was in accordance with law as being protected by S.35 of Anti-Terrorism Act, 1997--Imprisonment for life awarded to accused was reduced to imprisonment for 20 years.?

?

Hafiz Hifz-ur-Rehman, Advocate Supreme Court for Appellants.

Dil Muhammad Tarar, Advocate Supreme Court for Advocate-General, Punjab for the State.

Date of hearing: 9th August, 2006.

2007 S C M R 118

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad and Ch. Ijaz Ahmad, JJ

ZAHID HUSSAIN and others----Petitioners

Versus

SENIOR MEMBER, BOARD OF REVENUE and others----Respondents

Civil Petitions "Nos.13f1-L, to 1324-L and 1462 to 1476-L of 2006, decided on 24th August, 2006.

(On appeal from the judgments, dated 1-7-2006 by the Punjab Service Tribunal, Lahore passed in Appeals Nos.2709 to 2720 and 2892 to 2895 of 2005).

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

----S. 8---Punjab Revenue Department (Revenue Administration Posts) Rules, 1990, Schedule, column 10---Constitution of Pakistan (1973), Art.212 (3)---Promotion---Vested right---Illegal order---Criteria for promotion from Patwari to Kanungo---Passing of departmental examination---Out of total 170 Patwaris for promotion as Kanungos, 147 were ruled out of consideration for the reason that they had not passed departmental promotion examination and 23 Patwaris who were junior to the remaining 147 Patwaris were promoted as Kanungos---Service Tribunal, with the consent of parties, remanded the matter to the authorities for reconsideration---Plea raised by 23 promoted Patwaris was that they had a vested right to hold the post of Kanungos---Validity---Posts of Kanungos, under Punjab Revenue Department (Revenue Administration Posts) Rules, 1990, were to be filled in by promotion from amongst the Patwaris who had put in three years service on the basis of seniority-cum-fitness---Passing/clearance of departmental examination and completion of training was essential for confirmation as Kanungo, under Column 10 of Schedule to Punjab Revenue Department (Revenue Administration Posts) Rules, 1990, and not for promotion to the post of Kanungo---Departmental Promotion Committee had illegally laid down the condition of passing of departmental examination for promotion of Patwaris to the post of Kanungos---Such condition resulted in ruling out of consideration 147 Patwaris out of total 170 Patwaris for promotion of Kanungos for no fault of theirs, as there were neither any adverse entries about their competence and efficiency nor their integrity or honesty was in doubt---Majority of 147 Patwaris were senior to the 23 Patwaris who were found eligible for promotion---Patwaris who were declared fit for promotion, were promoted in complete disregard of the time honoured principle requiring promotion on the basis of seniority?-cum-fitness---No vested right was created in favour of promoted Patwaris to continue to hold the post of Kanungos on regular basis as their promotion was not in accordance with law and was illegal thus not conferring any right on them to claim their promotion---Judgment passed by Service Tribunal was just and fair providing substantial justice to all aggrieved/affected parties and did not require to be interfered by Supreme Court---Leave to appeal was refused.?

Hafiz Tariq Nasim, Advocate Supreme Court and Tanveer Ahmed, Advocate-on-Record for Petitioners (in C.Ps. Nos.1311 to 1324-L of 2006).

Nemo for Respondents (in C.Ps. Nos.1311-1324-L of 2006).

Riaz Kayani, Advocate Supreme Court and, Mahmudul Islam, Advocate-on-Record for Petitioners (in C.Ps. Nos.1462 to 1476-L of 2006).

Nemo for Respondents 1 to 3 (in C.Ps. 1462 to 1476-L of 2006).

Hafiz Tariq Nasim, Advocate Supreme Court and Tanveer Ahmed, Advocate-on-Record for Respondent No.4 (in C.Ps. Nos.1462 to 1476-L of 2006).

Date of hearing: 24th August, 2006.

2007 S C M R 128

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

SAIFUDDIN and another----Petitioners

Versus

SENIOR CIVIL JUDGE/RENT CONTROLLER-VIII, KARACHI (SOUTH) and 7 others----Respondents

Civil Petitions Nos.404-K and 405-K of 2004, decided on 28th February, 2006.

(On appeal from the judgments, of High Court of Sindh, dated 26-4-2004 passed in Civil Petitions Nos.47 and 48 of 2004 respectively).

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

----Ss. 15 & 18---Constitution of Pakistan (1973), Art.185(3)---Ejectment petition---Default in payment of rent---Defect in landlord's title of property---Relationship of landlord and tenant denied---Ownership of property not an essential condition to create relationship of landlord and tenant---Landlords filed ejectment petition against tenants on ground of default in payment of rent---Tenants denied relationship of landlord and tenant between the parties---Rent Controller allowed ejectment petition and Appellate Court maintained findings of Rent Controller---Constitutional petition filed thereagainst by tenants was also dismissed by High Court---Tenants contended that in consequence to cancellation of allotment of property in the name of predecessor-in-interest of landlords, by Board of Revenue, they (landlords) ceased to be owners of premises and having lost status of landlord, they did not have locus standi to file ejectment petition and that tenants received notice under S.18 of Sindh Rented Premises Ordinance, 1979, from a third person, hence, they started depositing rent in the name of third person under bona fide impression---Validity---Tenants having admitted their induction in premises under their possession as tenants by landlords, had accepted existence of relationship of landlord and tenant between them and landlords---Tenants despite defect in title of landlords were estopped to deny relationship of landlord and tenant at subsequent stage on ground that a third person having set up his title in property had sent them notice under S.18 of the Ordinance---Ownership of property was not an essential condition to create relationship of landlord and tenant rather a person without being owner of property might acquire status of landlord of property---Defect in title of landlord as such might not be a valid ground to deny his status as landlord of property and non-payment of rent for such reason might constitute a wilful default in terms of S.15 of the Ordinance---Section 15 of Sindh Rented Premises Ordinance, 1979, provided that if tenancy between parties was based on written agreement, then the tenant was to pay rent of premises under his possession within 15 days after expiry of period for payment of rent fixed in agreement and in absence of written agreement within 60 days after rent became due failing which tenant was to face consequences of ejectment---Tenants by denying status of landlords as owners of premises on pretext of defect in their title subsequent to their induction in premises as tenants by landlord, had disentitled themselves from seeking equitable relief in ejectment petition---Dispute as to title of landlord being sub judice in the High Court, tenants were not justified in asking him to establish his title to maintain status as landlord of property nor tenants were to deny existence of relationship of landlord and tenant---Petition for leave to appeal was dismissed.?

Muhammad Yousuf v. Asghar Hussain 1980 SCMR 886; Amanullh Khan v. Chotay Khan 1978 SCMR 14 and Muhammad Shah Alam v. Muhammad Abdul Ghafoor 1979 SCMR 443 rel..

Abrar Hussain, Advocate Supreme Court and A.A. Siddiqui, Advocate-on-Record for Petitioners (in both cases).

F.M. Javed, Advocate Supreme Court and Ahmadullah Farooqi, Advocate-on-Record for Respondent No.3 (in both cases).

Date of hearing: 28th February, 2006.

2007 S C M R 134

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

MUHAMMAD YOUNUS AARIN----Petitioner

Versus

PROVINCE OF SINDH through Chief Secretary, Sindh, Karachi and 10 others----Respondents

Civil Petition-No.25-K of 2006, decided on 27th February, 2006.

(On appeal from the judgment of the High Court Sindh dated 12-5-2005 passed in CPD-744 of 2004)

(a) Pakistan Engineers Council Act (V of 1976)---

----S. 2(j)---Professional engineers---Diploma holder---Status---Diploma engineers are not qualified engineers in terms of Pakistan Engineers Council Act, 1976 and cannot claim the status of engineers at par to professional engineers registered with Pakistan Engineering Council.

Pakistan Diploma Engineers Federation (Regd.) v. Federation of Pakistan 1994 SCMR 1807 rel.

(b) Pakistan Engineers Council Act (V of 1976)---

----S. 2(j)---Sindh Council Unified Grade Service Rules, 1982---Constitution of Pakistan (1973), Art.185(3)---Professional engineer---Diploma holders---Promotion---Eligibility---Petitioner being diploma holder engineer was recommended by Selection Board for his promotion to BPS-20 but authorities did not promote him because of his being a diploma engineer---Constitutional petition against the order of authorities was dismissed by High Court---Validity---Basic qualification for a professional engineer under the law was B.Sc. degree in engineering from a recognized institution in Pakistan---Diploma in engineering was not a recognized qualification for a professional engineer in terms of Pakistan Engineers Council Act, 1976---Service rules governing service of petitioner (Sindh Council Unified Grade Service Rules, 1982) and promotion policy of Government of Sindh would neither override the provisions of Pakistan Engineers Council Act, 1976, nor could relax the requirement of basic qualification of professional engineer for promotion to BPS-20 in engineering branch of Government of Sindh---Person could be considered for promotion to BPS-20 in engineering branch of Government of Sindh, subject to fulfilment of condition of basic qualification of a professional engineer prescribed under Pakistan Engineers Council Act, 1976 and a diploma holder being not a professional engineer in terms of Pakistan Engineers Council Act, 1976, he could not hold a post carrying responsibility of a qualified professional engineer---Eligibility of a person for promotion from BPS-19 to 20 in engineering department of Government of Sindh was subject to fulfilment of requirement of basic qualification with requisite experience as provided under Sindh Council Unified Grade Service Rules, 1982---Government having domain to frame policy of promotion and appointment could also by law, provide qualification for appointment against a particular post and thus appointment against such post through promotion or otherwise---Such appointment could not be claimed without fulfillment of criteria and requisite qualification---Supreme Court declined to interfere in the judgment passed by High Court---Leave to appeal was refused.

Pakistan Diploma Engineers Federation (Regd.) v. Federation of Pakistan 1994 SCMR 1807 rel.

Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division PLD 1995 SC 701 ref.

M.M. Aqil Awan, Advocate Supreme Court and Muhammad Aziz Malik, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 27th February, 2006.

2007 S C M R 138

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, Hamid Ali Mirza and Karamat Nazir Bhandari, JJ

ZULFIQAR----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.468 of 2004, decided on 13th April, 2006.

(On appeal from the judgment, dated 27-10-2004 of the High Court of Sindh, Karachi passed in Criminal Appeal No.353 of 2003).

Penal Code (XLV of 1860)---

----S. 365-A---Constitution of Pakistan (1973), Art. 185(3)---Reappraisal of evidence---Kidnapping for ransom---Accused/petitioner along with three co-accused allegedly abducted the victim and took him to forest wherefrom they wrote a chit to victim's son and asked him to pay certain amount as ransom---On receiving ransom amount, accused released abductee 11 days after occurrence---Abductee and a prosecution witness identified accused persons in identification test---Trial Court convicted accused/petitioner and another co-accused and sentenced them to imprisonment for life and forfeiture of properties---On appeal, High Court, while acquitting co-accused, maintained conviction and sentence of accused/petitioner- Validity---Abductee, at trial, stated in clear terms that he was abducted/kidnapped by accused/petitioner along with others and was released by him after receiving ransom money---In evidence, chit written by abductee to his son at instance of accused was brought on record and got exhibited---Abductee's statement was corroborated by complainant and other prosecution witnesses about the commission of offence, both on point of abduction as well as demand of ransom amount---Evidence revealed that ingredients of S.365-A, P.P.C. were fully attracted to case against accused---Petition for leave to appeal was dismissed.

Suleman Habibullah, Advocate Supreme Court for Petitioner.

Sarwar Khan, Additional Advocate-General, Sindh for the State.

Date of hearing: 13th April, 2006.

2007 S C M R 140

[Supreme Court of Pakistan]

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

MUHAMMAD AKBAR through L.Rs.----Petitioners

Versus

Major TAJJUDDIN through L.Rs.----Respondents

Civil Petition No.634-L of 2006, decided on 29th September, 2006.

(On appeal from the judgment, dated 8-3-2006 of the Lahore High Court, Multan Bench, Multan, passed in Civil Revision No.814 of 2004)

Civil Procedure Code (V of 1908)---

----S. 144 & O.IX, R.13---Supreme Court Rules, 1980, O.XXVIII, R.3---Constitution of Pakistan (1973), Art. l85(3)---Restitution---Ex parte decree, setting aside of---Vexatious litigation---Imposing of costs---Ex parte decree was passed in favour of plaintiffs, which decree had been set aside by High Court---During pendency of proceedings for setting aside ex parte decree, plaintiffs got executed the decree---To resist implementation of order passed by High Court, plaintiffs sought temporary injunction against restitution of possession, which relief had been declined concurrently by three Courts below---Validity---Plaintiffs took over the possession of suit-land in December, 1981, i.e. about quarter of a century age---In spite of the fact, that the ex parte decree under which possession was taken, was set aside almost seventeen years age and three Courts had concurrently found that plaintiffs were not entitled to retain the possession, they were still not satisfied and had approached Supreme Court assailing the concurrent findings---Plaintiffs could not point out any infirmity in the concurrent conclusions reached by three Courts---Supreme Court declined to interfere in the concurrent orders passed by three Courts and directed plaintiffs to pay Rs.20,000 as costs in terms of O.XXVIII, R.3 of Supreme Court Rules, 1980, as the application was frivolous and vexatious filed only to prolong the agony of defendants and time of Supreme Court was wasted---Leave to appeal was refused.

Ch. Muhammad Asif Ranjha, Advocate Supreme Court with Petitioners in person.

Nemo for Respondents.

Muhammad Akbar Tarar, Additional Advocate-General with Ahmed Khan, Inspector/S.H.O. Police Station Joharabad on Court's call.

2007 S C M R 142

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Saiyed Saeed Ashhad, JJ

MOHABBAT ALI and another----Petitioners

Versus

THE STATE and another----Respondents

Criminal PetitionNo.95-K of 2004, decided on 27th December, 2005.

(On appeal from the order, dated 25-5-2004 of the High Court of Sindh, Bench at Sukkur, in Criminal Revision Application No.D-30 of 2004).

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

----Ss. 6, 7 & 23---Penal Code (XLV of 1860), Ss.302/34, 427, 324, 148 & 109---Act of terrorism---Determination---Principles---Offence took place in the fields of sugarcane and banana, about 14/15 miles away from main road and case was sent to Anti-Terrorism Court for trial---Accused filed application under S.23 of Anti-Terrorism Act, 1997, for transfer of case from Special Court to the Court of Sessions Judge, which application was dismissed by High Court---Plea raised by accused was that facts mentioned in F.I.R. did not disclose any act of terrorism, justifying trial before Special Court---Validity---In order to determine as to whether offence would fall within the ambit of S.6 of Anti-Terrorism Act, 1997, it would be essential to have a glance over allegations made in F.I.R., record of case and surrounding circumstances; it was also necessary to examine that ingredients of alleged offence had any nexus with the object of case as contemplated under Ss. 6, 7 and 8 of Anti-Terrorism Act, 1997---Whether a particular act was an act of terrorism or not, the motivation, object, design or purpose behind such act was to be seen and it was also to be seen as to whether such act had created a sense of fear and insecurity in public or any section of public or community or in any sect---Alleged offence took place because of previous enmity and private vendetta---Incident admittedly took place inside the fields of sugarcane and banana cultivated in jungle about 14/15 miles away from main road---Motive as alleged in F.I.R. was also to be given specific attention which indicated that there was personal enmity between the parties over land and murder case of Haries of complainant---Intention of accused was not at all to create sense of insecurity or to destabilize public at large or to advance any sectarian cause---Design or purpose of offence as contemplated by provisions of S.6 of Anti-Terrorism Act, 1997, was not attracted---Supreme Court converted petition for leave to appeal into appeal and set aside the order passed by High Court---Supreme Court directed the Special Court to transmit record of the case to Sessions Judge for its disposal in accordance with law---Appeal was allowed.?

Dr. Babar Awan, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioners.

Dr. Qazi Khalid Ali, Additional Advocate-General Sindh for Respondent No.1.

Nemo for Respondent No.2.

2007 S C M R 146

[Supreme Court of Pakistan]

Present: Javed Iqbal and Raja Fayyaz Ahmed, JJ

MURAD ALI----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.23-Q of 2006, decided on 3rd August, 2006.

(On appeal from the judgment, dated 5-6-2006 of the High Court of Balochistan, Quetta passed in Criminal Jail Appeal No.1 of 2004).

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence--Retracted judicial confession---Human behaviour---Accused surrendered before police about eleven days after occurrence and voluntarily made judicial confession before Magistrate---Accused retracted his judicial confession but Trial Court convicted the accused and sentenced him to life imprisonment---Conviction and sentence passed by Trial Court was maintained by High Court---Contention of accused was that as the confession was recorded with a delay of few days, hence it was not voluntary in nature---Validity---No hard and fast line as to the conduct of a person at a given time, situation and thereafter depending upon various factors, mental capacity and capability can be drawn, foreseen or meticulously calculated, which differs and varies from time to time, person to person and remains fluctuating or consistent and firm, therefore, one cannot conclude definitely or assess a man's behaviour beforehand nor any definite opinion with regard thereto can be formed and it could not be safely assumed that since accused had surrendered in police station and had produced pistol along with live rounds admitting to have murdered the deceased, would not essentially motivate the accused to have had volunteered to make confession of his guilt before Judicial Magistrate on the same day or on the following day---Contention of accused was devoid of substance in view of evidence that accused when offered to make confession of his guilt was produced before Judicial Magistrate, who after his due and necessary satisfaction recorded his confessional statement---Story with regard to old enmity stood proved through confession of accused, which had been found not only to be voluntary but true as well in the given circumstances of the case by both the Courts below, though retracted stands corroborated from circumstantial piece of evidence---No material part of evidence was misread, misconstrued or omitted from consideration nor judgment of High Court could be shown to have suffered from any legal or factual infirmity---Supreme Court declined to interfere in the conviction and sentence passed by two Courts below---Leave to appeal was refused.?

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Expert opinion---Mere delay in dispatching articles to Expert was inconsequential.?

Muhammad Riaz Ahmed, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 3rd August, 2006.

2007 S C M R 152

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Ch. Ijaz Ahmed, JJ

FEDERATION OF PAKISTAN and others----Appellants

Versus

TAHIR LATIF----Respondent

Civil Appeal No.765 of 2002 in C.P. 2838 of 2001, decided on 11th September, 2006.

(Against the judgment, dated 28-6-2001 passed by the Federal Service Tribunal Lahore Bench, Lahore, in Appeal No.9(L) of 1999).

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

----Rr. 3 & 5---Constitution of Pakistan (1973), Art.212 (3)---Leave to appeal was granted by Supreme Court to re-examine the submissions made before Service Tribunal and to consider; whether judgment passed by the Tribunal could be sustained in law; and whether under Government Servants (Efficiency and Discipline) Rules, 1973, more than one minor penalties could be imposed on an employee as a result of disciplinary proceedings.

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

----Rr. 3(d) & 5---Absence from duty---Minor penalty---Regular inquiry, non-holding of---Civil servant was selected for a two years course abroad---Course was not completed in due time, therefore civil servant sought ex-Pakistan leave, which was sanctioned---Civil servant sought further extension of leave on the ground that the course was not completed, such further extension was refused by the authorities---Civil servant overstayed for about six months and the period of overstay was' treated as absence from duty---After issuing show-cause notice, disciplinary proceedings were conducted against civil servant and penalty of withholding of increment for one year was imposed---Penalty imposed by the Authorities was set aside by Service Tribunal---Validity---Authorities had passed the order against civil servant without holding regular inquiry---In present case the contents of show-cause notice and reply if put in a juxtaposition, it would be clear that matter could not be decided without holding regular inquiry---Competent authority had not passed speaking order against civil servant without holding regular inquiry in terms of R.5 of Government Servants (Efficiency and Discipline) Rules, 1973---Such action of authorities was not in consonance with the settled law laid down by Supreme Court---Clause (d) of R.3 of Government Servants (Efficiency and Discipline) Rules, 1973, was an independent clause which was code in itself---To take action under R.3(d) of Government Servants (Efficiency and Discipline) Rules, 1973, its pre-conditions must exist meaning thereby that it would also be necessary to hold that on such account, retention of civil servant in service was prejudicial to national security---Mere remaining outside the country during his stay period, after submitting his application for extension of leave to the competent authority, did not fall within the parameters prescribed in R.3 (d) of Government Servants (Efficiency and Discipline) Rules, 1973---Authorities failed to raise any substantial question of law of public importance as contemplated in Art.212 (3) of the Constitution---Supreme Court declined to interfere in the judgment passed by Service Tribunal---Leave to appeal was refused.

Ghulam Muhammad Khan's case 1996 SCMR 802 and Nawab Khan's case NLR 1954 Service 54 rel.

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

----S. 24-A---Administrative order---Scope---Under S.24-A, General Clauses Act, 1897, it is the duty and obligation of competent authority to award minor punishment after application of mind with reasons.

Messrs Airport Support Services's case 1998 SCMR 2268 rel.

(d) Constitution of Pakistan (1973)--

----Art.212 (3)---Supreme Court---Jurisdiction---Findings of fact---Supreme Court is not a court of appeal to reappraise evidence while exercising power under Art.212 (3) of the Constitution---Findings of fact given by Service Tribunal cannot be disturbed in constitutional jurisdiction.

Miss Naheeda Mehboob Elahi, D.A.-G. with Ch. Akhtar Ali, Advocate-on-Record for Appellants.

Rai Muhammad Nawaz, Advocate Supreme Court for Respondent.

2007 S C M R 158

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Hamid Ali Mirza, JJ

KHAIR MUHAMMAD and another----Petitioners

Versus

THE STATE----Respondent

Jail Petition No.265 of 2005, decided on 26th June, 2006.

(On appeal from the judgment of the High Court of Balochistan, Quetta, dated 20-7-2005 passed in Criminal Jail Appeal No.31 of 2001 and Murder Reference 5 of 2001).

Penal Code (XLV of 1860)---

_---Ss. 302 & 324---Constitution of Pakistan (1973), Art.185 (3)---Re­appraisal of evidence---Fresh trial---Non-recording of evidence---Automatic weapons---Related witnesses---Accused were convicted and sentenced by Special Court established under Suppression of Terrorist Activities Act, 1995 for committing double murder by using automatic TT pistols---Conviction recorded by Special Court was set aside by High Court and case was remanded to Sessions Judge for retrial without recording evidence afresh---In post remand trial, accused were again convicted and sentenced to death penalty----Conviction and sentence awarded by Trial Court was maintained by High Court---Plea raised by accused was that evidence relied upon by Trial Court was not recorded by competent Court and prosecution witnesses were related to complainant---Validity---In consequence to the verdict given by High Court, fresh evidence was not required to be recorded in re-trial--Accused having accepted remand order in toto, did not earlier raise any objection at any stage to the admissibility of evidence recorded by Special Court---Presiding Officer of Special Court was Additional Sessions Judge, who having fulfilled all requirements of law, provided full opportunity to accused to cross-examine the witnesses---Accused failed to point out any procedural defect in recording of evidence by Special Court, causing any prejudice to them on merits or on the ultimate result---Courts established under Suppression of Terrorist Activities Act, 1975, were competent to try the offence committed with the use of automatic and semi-automatic weapons---Cognizance was taken by Special Court, as TT pistols were used in the crime---Notwithstanding the jurisdictional defect in trial, technical objection regarding admissibility of evidence by Special Court had no legal force---Mere relationship was not sufficient to hold a witness interested or discard his evidence---Accused were also closely related to the witnesses, therefore, there was no chance of false implication or substitution---Supreme Court did not find any substance for interference in the conviction and sentence passed by the Courts below as accused also failed to point out any mitigating circumstance for lesser punishment---Leave to appeal was refused.

Javed Aziz Sindhu, Advocate Supreme Court for Petitioners.

Raja Abdul Ghafoor, Advocate Supreme Court for the State.

Date of hearing: 26th June, 2006.

2007 S C M R 162

[Supreme Court of Pakistan]

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

SHAFQAT ABBAS and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.291 of 2003, decided on 8th August, 2006.

(On appeal from the judgment, dated 16-5-2002 of the Lahore High Court, Multan Bench passed in Criminal Appeal No.54 of 1999(ATA))

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

---Ss. 302(b) & 324/34---Anti-Terrorism Act (XXVII of 1997), S.7---Qanun-e-Shahadat (10 of 1984), Art.40---Reappraisal of evidence---Statement of eyewitness---Unexplained delay---Benefit of doubt---Disclosure before police during investigation---Worth---Accused were convicted and sentenced to life imprisonment, which was maintained by High Court to the extent of two accused while one was acquitted---Plea raised by accused was that statement of eye-witness was recorded with a delay of four months and disclosure of one of the accused in police custody was inconsequential---Validity---Evidence of eye-witness as to identification of accused by their names including their descriptions etc. and role attributed to them by such witness in view of the answers given by him in his cross-examination suffered from substantial discrepancies, inconsistencies and material doubts---Eye-witness categorically stated that he did not disclose the names of accused etc. to complainant or to police or to any other person in hospital where he was present with injured persons or even thereafter at the place of occurrence to police who remained present there throughout the night and even later on to any other person---No implicit reliance on testimony of such witness could be placed for the purpose of conviction of accused in absence of corroboration from any other source which was wanting in the case---Alleged disclosure made by one of the accused before Investigating Officer in presence of prosecution witness during interrogation, involving other accused in commission of offence, not leading to discovery of a particular relevant fact or incriminating material was inconsequential and inadmissible---By extending benefit of doubt to accused, they had been found entitled to earn acquittal---Supreme Court set aside the conviction and sentence awarded to them by the Courts below and they were acquitted---Appeal was allowed.

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

----Ss. 302(b) & 324/34---Reappraisal of evidence---Abscondence---Mere abscondence in absence of any other incriminating piece of evidence cannot entail penal consequences against accused or to expose them to criminal liability.

M. Ibrahim Satti, Advocate Supreme Court for Appellants.

Dil Muhammad Tarar, Advocate Supreme Court for the State.

Date of hearing: 8th August, 2006.

2007 S C M R 173

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Mian Muhammad Ajmal, JJ

KHURRAM NAEEM and 3 others---Petitioners

Versus

NATIONAL BANK OF PAKISTAN and others---Respondents

Civil Petition No.1622 of 2000, decided on 8th December, 2000.

(On appeal from the judgment, dated 18-9-2000 passed by Lahore High Court, Lahore in E.F.A. No. 287 of 2000).

Civil Procedure Code (V of 1908)---

---S. 115 & O.XXI, R. 82---Constitution of Pakistan (1973), Art.185(3)---Execution of decree---Putting property to auction---Respondent decree-holder put to auction the property owned by petitioners which they had purchased from another respondent who was guarantor on behalf of the Respondent---Counsel for petitioners had contended that said respondent (seller) had deceived petitioners because he did not inform them that property which he was selling to them had already been mortgaged---Validity---Supreme Court declined to pass any order and observed that order could be passed in that behalf, except if petitioners had any grievance, they could initiate proceedings against seller before the forums/Courts having jurisdiction in the matter; and if such action was initiated, the Authorities seized of the matter, would dispose of same expeditiously in accordance with law.

Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer N.A. 158, Naushero Feroze and others 1994 SCMR 1299 ref.

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

Rai Muhammad Nawaz Kharral, Advocate Supreme Court and Abdur Rauf Rohila, Advocate Supreme Court for Respondents.

2007 S C M R 174

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

Mst. SADIA AWAN---Petitioner

Versus

DANIYAL PERVAIZ and others---Respondents

C.P.L.As. Nos.173-K to 176-K of 2006, decided on 12th July, 2006.

(On appeal from order of Sindh High Court, Karachi, dated 22-2-2006 passed in C.P. Nos. S-510 to S-513 of 2005).

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

----Ss.15(2)(ii) & 18---Default in payment of rent---Change in ownership of property by inheritance---Ejectment petition by legal heirs of deceased landlady---Service of notice of petition on tenant on 31-12-2004---Order of Rent Controller, dated 12-2-2004 for deposit of arrears of rent and future rent, and its compliance by tenant on 17-2-2004---Plea of landlords was that non-payment or non-tendering of rent by tenant till 30-1-2004 (i.e. within 30 day of service of notice of petition on him) would amount to wilful default---Validity---Such notice constituted a valid intimation within meaning of S.18 of Sindh Rented Premises Ordinance, 1979---Question of default would be determined on touchstone of language employed in S.15(2)(ii) of Sindh Rented Premises Ordinance, 1979---No written agreement of tenancy existed between the parties---Practice of deceased landlady was to collect rent annually---In absence of such agreement, default within purview of S.15(2)(ii) of the Ordinance would arise on tenant's failure to pay rent within sixty days after its becoming due for payment---Tenant having not committed default, ejectment petition was dismissed.

Saiyed Ishrat Hussain Rizvi, Advocate Supreme Court and Miss Wajahat Niaz, Advocate-on-Record for Petitioner.

Muhammad Yasin Azad, Advocate Supreme Court and Akhlaq Ahmad Siddiqui, Advocate-on-Record for Respondent No.1.

Nemo for Respondents Nos. 2 and 3.

Date of hearing: 12th July, 2006.

2007 S C M R 178

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Faqir Muhammad Khokhar, JJ

Malik ATTA MUHAMMAD and another---Petitioners

Versus

GOVERNMENT OF PUNJAB through Secretary, Local Government and Rural Development, Lahore and others---Respondents

Civil Petitions Nos. 2404, 2405 and 2406 of 2004, decided on 2nd December, 2004.

(On appeal from order, dated 30-7-2004 of the Lahore High Court, Multan Bench, passed in C.M. No.1306 in W.P. No.3824/2004, C.M. No.1308/2004 in W.P. No. 4017/2004 and C.M. No.1300 in W.P. No.4025/2004).

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

----S. 54(1)(1) & Second Sched. Part II, Cl. (5)---Cattle market---Auction of lease rights for collection fee---Holding of such auction by Municipal Administration in a surreptitious and restricted manner---Nothing to show transparency or fairness in auction proceedings so as to ensure participation of all intending bidders---Offer of higher bid by intending bidder---Validity---Duty of Municipal Administration was to conduct such auction in a just, fair and transparent manner so as to ensure that such lease would fetch maximum public revenue---Supreme Court, in order to safeguard public interest and exchequer, ordered re-auction of lease rights in an open, just and fair manner.

Muhammad Afzal v. Shahzad Asghar Dar and others 2003 SCMR 280 and Iqtidar Ali Khan v. Department of Mines and Minerals through Assistant Director, Attock and others decided on 14-7-2004 in Civil Petition No. 116 of 2003 rel.

Abdur Rasheed Sheikh, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioner (in C.P. No.2404 of 2004).

Nasir Saeed Shaikh, Advocate Supreme Court for Petitioner (in C.Ps. Nos.2405 and 2406 of 2004).

M. Rafiq Rajwana, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.5 (in all cases).

A.R. Siddiqui, Advocate Supreme Court for Respondents Nos.2-3 (in C.P. No.2405 of 2004).

Khurshid Ahmed Shah, Tehsil Officer, Finance Rajanpur for Respondent No.3 (in C.P. 2404 of 2004).

Mehr Ahmed Qamar, Tehsil Officer, Finance, Jampur for Respondent No.3 (in C.P. No.2405 of 2004).

Mehmood Hayat Tiwana, Tehsil Officer, Finance, Lal Essan Kerror for Respondent No.3 in C.P. No.2406 of 2004).

Date of hearing: 2nd December, 2004.

2007 S C M R 181

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

MUZAFFAR KHAN---Petitioner

Versus

SANCHI KHAN and another---Respondents

Civil Petition No. 352-K of 2005, decided on 10th July, 2006.

(On appeal from the judgment, dated 14-3-2005 passed by High Court of Sindh, Karachi in Civil Revision No. 145 of 2000).

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

----S. 115 & O.XLI, R.22---Ownership of suit plot, contest between parties over---Dismissal of suit by Trial Court for failure of parties to prove their respective claims---Non-filing of appeal or cross-objections by defendant against such findings---Suit decreed by Appellate Court on plaintiff's appeal---Revision petition by defendant---Maintainability---Due to non-filing of appeal or cross-objections, findings of fact regarding defendant's title, right and interest in suit plot had attained finality in eyes of law---Revision petition by defendant against such findings was, not legally maintainable.

Masta v. Sarang and another PLD 1969 SC 261 rel.

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

----Ss. 8 & 42---Suit for declaration of title and possession of property---Agreement to sell and P.T.I. Form in favour of plaintiff---Validity---Plaintiff on basis of P.T.I. maintained by Excise and Taxation Department, could not claim to be owner of property---Decree prayed for could not be passed in plaintiff's favour on basis of such documents, except a decree for protection of possession.

Petitioner in person.

Abdul Qadir Khan, Advocate Supreme Court and A.A. Khan, Advocate-on-Record for Respondent No.1.

Nemo for Respondent No.2.

2007 S C M R 184

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad and Ch. Ijaz Ahmad, JJ

BABAR ALI---Petitioner

Versus

BASHIR AHMAD and another---Respondents

Criminal Petition No. 609-L of 2006, decided on 22nd August, 2006.

(On appeal from the judgment, dated 16-6-2006 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No. 1 of 2006 in Criminal Appeal No. 337 of 2006).

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.302(b)/34 & 429---Constitution of Pakistan (1973), Art.185(3)---Power of Appellate Court under S.426, Cr.P.C.---Scope---Accused/appellant was convicted under S.302(b)/34, P.P.C. and sentenced to life imprisonment by Trial Court---High Court on appeal, while suspending the operation of sentence released accused on bail---Complainant/respondent called in question the order passed by High Court for the reason that power given to Appellate Court under S.426, Cr.P.C., was to be sparingly exercised especially in cases where convict had been sentenced to life imprisonment---Accused while supporting order passed by High Court contended that he was found innocent during police investigation and also that his criminal liability under provisions of Penal Code, 1860, was yet to be determined---Observation of High Court that case required further inquiry for determination whether offence committed by accused would be covered by S.429, P.P.C. or it would also fall within scope of S.302, P.P.C., at bail stage amounted to giving undue benefit to accused which was likely to adversely affect prosecution case during proceedings of appeal before High Court---While granting bail or suspending sentence awarded to a convict, Court was not required to express opinion as to under what provision of law, the convict was likely be found guilty or whether his case was to come within scope of a particular section---Evidence produced by prosecution established that accused/appellant armed with Klashnikov had come to the scene of occurrence along with principal accused and fired a burst at deceased and the cow; which conduct and action of accused/appellant was considered by Trial Court as his sharing common intention with principal accused for causing death of deceased---Finding of Investigating Officer which did not have any binding value, had been disbelieved by Trial Court---Appellate Court, no doubt, had power to suspend the sentence of accused but the same was to be exercised with due care and caution; and satisfactory and cogent reasons were required for suspending the sentence especially in respect of sentence of life imprisonment---No exceptional circumstances had been highlighted by High Court in its order---Petition was converted into appeal and was allowed---Order passed by High Court was set aside.

Hasnat Ahmad Khan, Advocate Supreme Court and A.H. Masood, Advocate-on-Record (Absent) for Petitioner.

M. Ahsan Bhoon, Advocate Supreme Court and Syed Fayyaz Ahmed Sherazi, Advocate-on-Record for Respondents.

M. Akbar Tarar; Additional Advocate-General, Punjab for the State.

2007 S C M R 188

[Supreme Court of Pakistan]

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

ABDUL RAUF through President Action Committee---Petitioner

Versus

MEHRAN HEALTH AND WELFARE CENTRE and 2 others---Respondents

Civil Petition No. 291-K of 2005, decided on 19th July, 2006.

(On appeal from the judgment, dated 25-2-2005 passed by the High Court of Sindh, Karachi in CPD-3492/1993).

Constitution of Pakistan (1973)---

----Arts. 199 & 185(3)---Constitutional petition before High Court---Maintainability---Use of amenity plot for commercial purpose---Petitioner vide constitutional petition called in question the construction of shops on a plot leased out by Metropolitan Corporation to another lessee for amenity purposes---Petition was dismissed by High Court on grounds; firstly, that pending disposal of petition, the amenity plot was converted into commercial plot and in consequence thereto, a site plan for construction of shops was approved by Building Control Authority; secondly that a fresh lease deed executed by Corporation in favour of lessee was challenged by petitioner in a civil suit---Petitioner contended that constitutional petition before High Court had been filed against illegal construction (shops) raised on an amenity plot whereas in civil suit the validity of subsequent lease deed had been questioned on different ground---Supreme Court granted have to appeal to consider question relating to unauthorized construction of shops on an amenity plot and legality of order of its conversion into commercial plot---

Status quo order was also passed pending disposal of the case.

Muhammad Yasin Azad, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2007 S C M R 190

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

PAKISTAN STEEL MILLS CORPORATION (PVT.) LIMITED---Petitioner

Versus

Syed MUHAMMAD SHAH and others---Respondents

C.P.L.A. No. 901-K of 2004, decided on 5th July, 2006.

(On appeal from judgment of Sindh High Court, Karachi, dated 29-9-2004 passed in C.P.D. No.342 of 1997).

Constitution of Pakistan (1973)--

----Arts. 199 & 185(3)---Constitutional petition before High Court---Maintainability---Tender---Scrapping of tender---Non-acceptance of bid without assigning reason---Respondent/Corporation invited bids for sale of non-segregated running scrap through print media---Petitioners were the highest bidders but Corporation instead of accepting or rejecting their bid, scrapped tenders---Petitioners vide constitutional petition before High Court asserted that Corporation while not accepting their bid acted unreasonably and arbitrarily and that it refused to issue letter of award to petitioners without assigning any valid reason for such refusal---High Court while accepting constitutional petition declared action of Corporation as without lawful authority and of no legal effect---Corporation contended that there was a mere offer for supply of certain commodity which did not mature into proposal and it was not accepted by Corporation and, therefore, there was no concluded contract between the parties; that petitioners did not acquire any legal or vested right for enforcement before High Court under Art.199 of the Constitution; that as no legal right accrued in favour of petitioners, they could not be termed as aggrieved persons within purview of expression used in Art.199 and that constitutional petition was not maintainable---Supreme Court granted leave to appeal to the Corporation to consider whether High Court was legally justified and was under legal duty to exercise its jurisdiction for enforcement of a right claimed by petitioners and whether they could be termed as aggrieved persons due to withdrawal of invitation for tender by the Corporation.

City School (Pvt.) Ltd. v. Privatisation Commission 2002 CLD 1158 rel.

M.G. Dastgir, Advocate Supreme Court and Akhlaq Ahmad Siddiqui, Advocate-on-Record for Petitioner.

Suleman Habibullah, Advocate-on-Record for Respondents Nos. 1 and 3.

2007 S C M R 192

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Syed Jamshed Ali, JJ

SHAKEEL AHMAD---Petitioner

Versus

I.-G. PUNJAB POLICE, LAHORE and others---Respondents

Civil Petition No. 1314/L of 2004, decided on 26th July, 2006.

(Against the judgment, dated 10-2-2004 passed by Punjab Service Tribunal, Lahore in Appeal No. 1714 of 2003).

(a) Police Order (22 of 2002)---

----Art. 31---Subordinate police officials---Keeping subordinates ranks free from indiscipline and highhandedness---Possible in a manner, which upholds rule of law---Such officials must be dealt with in accordance with law.

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

----R. 4---Constitution of Pakistan (1973), Art.13---Double punishment on same allegation---Not legal---Principles.

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

----Rr. 3, 4, 5 & 6---Punjab Removal from Service (Special Powers) Ordinance (IV of 2000), S.3---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service due to pendency of criminal case against police official---Validity---Unless such official was found guilty, F.I.R would remain an unsubstantiated allegation and on its basis maximum penalty could not be imposed---After acquittal of such official

from criminal case on basis of compromise, allegations in show-cause notice remained unsubstantiated---Authority had not provided opportunity to such official to submit reply to show-cause notice---Such official had been punished without any evidence---Supreme Court set aside such penalty, directed reinstatement of such official in his substantive rank, but he has to remain under suspension---Competent authority was directed to hold fresh inquiry under Punjab Removal from Service (Special Powers) Ordinance, 2000 and pass fresh order in accordance with law.

(d) Civil service---

----Disciplinary proceedings---Disputed questions of fact---Regular inquiry should be held, so that accused official be in a position to defend himself.

Hafiz Tariq Nasim, Advocate Supreme Court for Petitioner.

Ch. Aamir Rehman, Additional Advocate-General and Muneer Ahmed, D.S.P. (Legal) for Respondent No.1 and 3.

2007 S C M R 195

[Supreme Court of Pakistan]

Before Sardar Muhammad Raza Khan and Nasir-ul-Mulk, JJ

COLLECTOR CUSTOMS, PESHAWAR----Petitioner

Versus

Messrs PAPER INTERNATIONAL (PVT.) LTD., NOWSHERA and another---Respondents

Civil Petition No. 173-P of 2002, decided on 16th August, 2006.

(On appeal from the judgment, dated 12-12-2001 of the Peshawar High Court, Peshawar Passed in F.A.O. No. 91 of 2000).

Customs Act (IV of 1969)---

----S. 156(1), Cls. (62) & (90)---Constitution of Pakistan (1973), Art.185(3)---Goods illegally taken out of warehouse without payment of duty---Allegation against importer-respondent was that he unloaded imported consignment in private bonded warehouse and consumed a portion of the same without intimation to Customs Authority---Customs Appellate Tribunal imposed penalty on importer under clause (90) of S.156(1) of Customs Act, 1969---High Court set aside order passed by Tribunal and while reducing the amount of penalty held that importer was liable to penalty provided by S.156(1), clause (62) instead of clause (90) of the said section---Validity---Clause (62) and clause (90) of S.156(1) of Customs Act, 1969 was applicable to the case of Importer who could also be tried by Special Judge Customs and, if found guilty, was to be liable to imprisonment for a term not exceeding five years or fine or both---No illegality having been pointed out in the impugned order, leave to appeal was declined.

Abdur Rauf Rohaila, Advocate Supreme Court with Mr. Tasleem Hussain, Advocate-on-Record for Petitioners.

Syed Safdar Hussain, Advocate-on-Record for Respondent No.1.

Nemo for Respondent No.2.

Date of hearing: 16th August, 2006.

2007 SCMR 198

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Ch. Ijaz Ahmed, JJ

SHAUKAT ALI and others----Petitioners

Versus

ALLIED BANK OF PAKISTAN LTD. and others----Respondents

Civil Petitions Nos.2636-L, 2638-L 2844-L and 2885-L of 2004, decided on 6th January, 2006.

(On appeal from the order, dated 25-6-2004 passed by the Lahore High Court, Lahore, in L.A. No.69 of 2004)

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

----S.O. 12---Industrial Relations Ordinance (XXIII of 1969), S.25-A---Dismissal from service---Bank employee---Charge of embezzlement of huge amount of Bank's account-holders---Holding of regular inquiry by Bank---Imposition of such penalty after such charge proved against employee---Business of Bank depended upon its good will/reputation, and due to such incident/fraud, Bank suffered irreparable loss as many people closed their accounts with Bank---Employee by not observing rules and regulations had committed misconduct disentitling him to remain in service of Bank---Charge levelled against employee having been proved, grievance petition of employee was dismissed in circumstances.

Syed Hasham Ali Shah & Sons v. The Federation of Pakistan PLD 1951 Lah. 425; T. Muthaya Pillayan v. Commissioner Madras Hindu Religious and Charitable Endowments, Madras AIR 1955 Madh. B. 70; M.V. Ittycheria v. State of Kerala AIR 1958 Ker. 374; Opal Laboratories Ltd. v. Workers' Union 1972 PLC 83; Board of Secondary Education, Sargodha v. Abdul Rehman 1988 SCMR 1711; Naeem-ur-Rehman v. Abdul Aziz 1986 SCMR 1961; Ghulam Rasool Khan v. Mst. Jindan 1986 SCMR 775 and Abdul Hameed v. Ali Ahmad Khan 1979 SCMR 503 rel.

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

----Art. 185(3)---Concurrent findings of Courts below---Supreme Court seldom interferes in such findings.

Petitioners in Person (in C.Ps. Nos.2636, 2638 and 2844 of 2004).

Farooq Zaman Qureshi, Advocate Supreme Court with Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Petitioners.

Nemo for Respondents.

2007 S C M R 203

[Supreme Court of Pakistan]

Present! Man Shakirullah Jan and M. Javed Buttar, JJ

SAEE MUHAMMAD----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.283 of 2005 out of Jail Petition No.475 of 2003, decided on 11th July, 2006.

(On appeal from the judgment, dated 15-7-2003 passed by the Lahore High Court, Lahore in Criminal Appeal No.869 of 2002)

Penal Code (XLV of 1860)---

---Ss. 302(c), 148 & 149---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Benefit of doubt---Cross-version---Aggressor---Determination of---Allegation against . accused/appellant was that, in free fight with complainant party, he gave a single Sota blow to deceased who fell in the pond and died---Accused/appellant and co-accused were convicted by Trial Court and sentenced to imprisonment for 25 years---High Court, while maintaining conviction of accused under S.302(c), P.P.C. reduced sentence from 25 years to 10 years---Accused contended that it was the complainant party who was aggressor and who attacked accused party; that in counter-version, the complainant party was challaned to face trial; that complainant party was found guilty and punished accordingly; that co-accused sustained injuries in the fight---Validity---In case of sudden free fight, one could not be definite as to which party initiated the attack or which exceeded its right of self-defence particularly when deceased had received only one Sota blow and then fell in the pond---Motive set up by prosecution was not believed by both the Courts below rather the one advanced by accused party, motivating complainant party to aggression was stated to be true as per statement of Investigating Officer---Prosecution had failed to prove its case beyond reasonable doubt as to mens rea and guilt of accused who, on ground of benefit of doubt, was entitled to acquittal---Appeal was allowed.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Ch. Munir Sadiq, Advocate Supreme Court for the State.

Date of hearing: 11th July, 2006.

2007 S C M R 206

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

NIAZ-UD-DIN----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.68 of 2004, decided on 4th March, 2005.

(On appeal from the judgment, dated 28-1-2004 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeal No.251 of 2003).

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

----S. 9(c)---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Sentence, reduction in---First offender---Allegation against accused/petitioner was' that 5 Kgs. of heroin was recovered from him---High Court upheld conviction of accused by Trial Court and sentenced him to imprisonment for 10 years---Accused alleged that he was arrested prior to registration of case and police wanted him to make a confession as to his involvement in the business of drug trafficking of another person and on refusal of accused, he was falsely involved in the case---Validity---Admittedly none of prosecution witnesses had any enmity with accused; nor it was even suggested---No reason for false involvement of accused existed---Despite lengthy cross-examination, statements of prosecution witnesses remained consistent on material particulars---Conviction of accused did not call for any interference---Accused was a previous non-convict; there was no instance of his involvement in drug trafficking---Evidence showed that accused was subjected to custodial violence, perhaps, for the reason, that those who arrested him wanted to extract a confession from him---Sentence of imprisonment of accused was reduced from ten to six years---Petition was converted into appeal and decided accordingly.

Malik Rab Nawaz Noon, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record (absent) for Petitioner.

Raja Saeed Akram, A.A.-G. Punjab for the State.

Date of hearing: 4th March, 2005.

2007 S C M R 210

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad and Ch. Ijaz Ahmed, JJ

NAJEEBULLAH KHAN and others---Petitioners

Versus

THE STATE and others---Respondents

Criminal Petition No. 676-L of 2006, decided on 30th August, 2006.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 20-7-2006 passed in Criminal Miscellaneous No. 86/T/2006).

Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence--- Adjournment, grant of---Conduct and behaviour of the Trial Court specified in the impugned order in not allowing the adjournment to accused persons for absence of their senior counsel and proceeding with the matter by appointing a defence counsel at the expense of State, showed its haste and anxiety to proceed with the matter expeditiously, but it certainly did not convey or suggest bias or partiality on its part---Held, in criminal cases, especially in a case where accused were facing the charge of murder, it was advisable that adjournment on the ground of absence of senior counsel should be granted, unless it appeared that same was being sought merely to prolong the proceedings---Accused, who had the capacity to engage counsel of his choice, would like his case to be conducted by him and it would not be agreeable to allow the counsel appointed at the expense of the State to conduct his case---Petition for leave to appeal was disposed of accordingly.

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

Nemo for Respondents.

2007 S C M R 211

[Supreme Court of Pakistan]

Present: Ch. Ijaz Ahmed and Syed Jamshed Ali, JJ

FALAK SHER and others---Petitioners

Versus

THE STATE and others---Respondents

Jail Petitions Nos. 192 and 254 of 2003 along with Criminal Petition No.513-L of 2003, decided on 12th June, 2006.

(Against the judgment, dated 29-4-2003 passed by the Lahore High Court, Multan Bench, Multan in Criminal Appeal No.102 of 1995).

Penal Code (XLV of 1860)---

----S. 302(a)(c)/34---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Supreme Court, in the interest of justice and fairplay, re-examined evidence on record, but did not find any infirmity or illegality in the concurrent findings of guilt recorded by the Courts below against petitioners---High Court was justified to reduce sentence of one of the petitioners in view of the fact that he was attributed an injury on buttocks of one of the deceased and was not attributed any specific role regarding other deceased---Findings of the High Court were reasonable and not in disregard of any accepted principle of appreciation of evidence---In absence of any infirmity or illegality in impugned judgments of the Courts below, Supreme Court, declined interference in findings of Courts below in exercise of its power under Art.185(3) of the Constitution---Petitions were dismissed and leave was refused.

Ata Muhammad and another v. The State 1995 SCMR 599; Muhammad Nawaz v. State 1970 SCMR 220; Syed Mushtaq Ahmad v. Siddiqueullah and others PLD 1975 SC 160 and Farid v. Aslam and others PLD 1977 SC 4 ref.

M. Zaman Bhatti, Advocate Supreme Court for Petitioners (in Jail Petitions Nos. 192 and 254 of 2003).

Hasnat Ahmed, Advocate Supreme Court for Petitioner (in Criminal Petition No.513-L of 2003).

Dil Muhammad Tarar, Advocate Supreme Court for the State (in Jail Petitions Nos.192 and 254 of 2003).

Nemo for Respondent (in Criminal Petition No.513/L of 2003).

2007 S C M R 214

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Tassaduq Hussain Jillani, JJ

LIAQAT ALI---Petitioner

Versus

THE STATE---Respondent

Jail Petition No.43 of 2005 decided on 15th May, 2006.

(On appeal from the judgment, dated 18-1-2005 of the Lahore High Court, Lahore, passed in Criminal Appeal No.95-J of 2000 and Murder Reference No.111 of 2000).

Penal Code (XLV of 1860)----

----S. 302(b)-Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---No legal or factual infirmity in the concurrent findings of guilt against petitioner, was found---Both eye-witnesses though related to deceased, but they had no motive or reason to falsely implicate petitioner in the occurrence in question---Complainant, who was sister of deceased, and prosecution witness, who was widow of deceased, were natural witnesses of occurrence on account of the vicinity of the place of occurrence where the quarrel had taken place between the children which led to the occurrence---No exception could be taken to conviction of petitioner as recorded by the Trial Court and maintained by High Court---No leniency could be shown to petitioner with regard to punishment awarded to him as he had taken away lives of two persons in a callous and reckless manner on account of a petty quarrel between the children.

M. Zaman Bhatti, Advocate Supreme Court (absent) for Petitioner.

Ch. Munir Sadiq, Advocate Supreme Court for the State.

2007 S C M R 216

[Shariat Appellate Jurisdiction]

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

MUHAMMAD RAFIQ---Appellant

Versus

MUHAMMAD MANZOOR and others---Respondents

Criminal Appeal No.58(S) of 2001 out of Criminal Petition No.14(S) of 2001, decided on 1st December, 2005.

(On appeal from the judgment, dated 16-3-2001 passed by the Federal Shariat Court in Criminal Appeal No.305-L of 2000).

Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)---

----S. 17---Penal Code (XLV of 1860), Ss.397 & 412---Constitution of Pakistan, (1973), Art.203-F---Appeal to Supreme Court---Federal Shariat Court giving respondent/accused benefit of doubt allowed appeal, set aside their conviction and sentence awarded to them by the Trial Court under Ss.397 & 412, P.P.C.---Validity---Respondents/accused had proved that complainant and accused were already on inimical terms and they were on litigation against each other and thus complaint could not be considered beyond doubts---Trial Court had also observed that on the basis of evidence on record, accused could not be convicted under S.17 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979---Trial Court had found that evidence available on record had not fulfilled conditions of Tazkia-al-Shahood---No ground was thus available to interfere with the judgment of Federal Shariat Court---Appeal against judgment of Federal Shariat Court, stood dismissed, in circumstances.

Sh. Khizar Hayat, Advocate Supreme Court for Appellant.

Khadim Nadeem Malik, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Respondents Nos. 1 and 2.

A.G. Punjab with Zaman Bhatti, Advocate Supreme Court for Respondent No.3.

Date of hearing: 1st December, 2005.

2007 S C M R 218

[Supreme Court of Pakistan]

Present: Javed Iqbal and Ch. Ijaz Ahmed, JJ

MUHAMMAD YOUSAF KHAN---Petitioner

Versus

HABIB BANK LIMITED through President and others---Respondents

Civil Review Petition No.71-L of 2003 in Civil Petition No.1687-L of 2001, decided on 30th January, 2006.

(On review from the judgment of this Court, dated 27-3-2003 passed in C.P. No.1687-L of 2001 and on appeal from judgment of the Federal Service Tribunal, Lahore, passed in Appeal No.27-L of 1999).

Constitution of Pakistan (1973)---

----Art. 188---Petition for review of Supreme Court judgment---Petitioner had sought review of judgment whereby his petition for leave to appeal had been dismissed---All the points agitated while arguing petition had been dilated upon and decided after having gone through entire record with care and caution---Petitioner on the basis of sheer technicalities, could not be absolved from serious charges of misappropriation and embezzlement of heavy amount---Factum of misappropriation and embezzlement against petitioner had been proved and even petitioner having admitted said allegation, question of un­awareness of petitioner would not arise---No case of review having been made out, petition was dismissed.

Muhammad Zaman Qureshi, Advocate Supreme Court for Petitioner.

Muhammad Iqbal Khan, Advocate Supreme Court and A.H. Masood, Advocate-on-Record for Caveat.

2007 S C M R 219

[Shariat Appellate Jurisdiction]

Present: Justice Javed Iqbal, Chairman, Justices Muhammad Nawaz Abbasi, Raja Fayyaz Ahmed, Dr. Allama Khalid Mehmood and Dr. Rashid Ahmed Jullundhari, Members

MUHAMMAD BASHIR and another---Petitioners

Versus

THE STATE---Respondent

Jail Petition No. 19(S) of 2004, decided on 28th December, 2005.

(On appeal from the judgment, dated 19-2-2004 passed by the Federal Shariat Court in Jail Criminal Appeal No.84-I of 2001).

Constitution of Pakistan (1973)---

----Art. 203-F---Penal Code (XLV of 1860), S.302(b)(c)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)- - Trial Court convicted and sentenced petitioner and Federal Shariat Court upheld judgment of the Trial Court---In absence of any point for interference in the judgment of Federal Shariat Court, petition for leave to appeal was dismissed and sentences awarded to accused, were upheld and maintained.

M. Zaman Bhatti, Advocate Supreme Court for Petitioners.

Nemo for Respondent.

Date of hearing: 28th December, 2005.

2007 S C M R 221

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Syed Jamshed Ali, JJ

MUKHTIAR ALI alias MUMTAZ ALI and others---Petitioners

Versus

MUMTAZ AHMED and others---Respondents

C.P.L.As. Nos.3302 and 3303-L of 2003, decided on 2nd March, 2006.

(On appeal from the order, dated 13-10-2003 of the Lahore High Court, Multan Bench passed in Civil Revision Nos.725-D and 801-D of 1996).

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

----Ss. 6 & 13---Constitution of Pakistan (1973), Art.185(3)---Suit for pre-emption---Making of Talbs---Trial Court decreed suit, but Appellate Court reversed judgment and decree of the Trial Court and High Court affirmed judgment of Appellate Court---Only ground which found favour with High Court to uphold judgment of Appellate Court was that petitioners had produced only one out of two witnesses of 'Talb-i-Ishhad'---Production of both the witnesses in Court was not a mandatory requirement of law---Petitioner as his own witness and one of the witnesses of Talb-i-Ishhad had fully proved performance of Talb-i-Ishhad---Judgment of High Court, in circumstances was not only against the law, but also reflected against material evidence on record---Petitions were converted into appeal and were allowed---Impugned judgment was set aside and case was remanded to High Court to be decided afresh.

S.M. Tayyab, Senior Advocate Supreme Court for Petitioners.

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

2007 S C M R 222

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan and Syed Jamshed Ali, JJ

BRANCH MANAGER, MESSRS UNITED REFRIGERATION INDUSTRIES (PVT.) LTD.---Petitioner

Versus

THE STATE and another---Respondents

Criminal Petition No.298 of 2005, decided on 13th April, 2006.

(On appeal from the judgment, dated 20-6-2005 passed by the Peshawar High Court, Peshawar in Cr1. MIA No.9 of 2005).

Criminal Procedure Code (V of 1898)---

----S. 526---Penal Code (XLV of 1860), S.489-F---Constitution of Pakistan (1973), Art.185(3)---Transfer of criminal case---Parties were locked in with each other in criminal and civil litigation---Respondent had filed suit for recovery of amount against petitioner and petitioner had filed criminal case against respondent under S.489-F, P.P.C.---Civil suit filed by respondent having been transferred by High Court from place 'K' to place 'P', petitioner had requested that his criminal case against respondent be also transferred, but, High Court declined to do so by impugned judgment---Validity---Held it was appropriate and in the interest of justice, if both civil and criminal cases be heard at one station---Since civil suit filed by respondent had already been transferred to place 'P', no injustice would be caused to respondent, if case of petitioner be also transferred from place 'K' to place 'P'---Petition was converted into appeal and impugned judgment was set aside and case was transferred accordingly.

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

Muhammad Saeed Khan, Additional Advocate-General, N.-W.F.P. for the State.

Arbab Gul, Respondent No.2 in person.

2007 S C M R 224

[Supreme Court of Pakistan]

Present: M. Javed Buttar and Raja Fayyaz Ahmed, JJ

ABDUL RAZZAQ---Petitioner

Versus

ALLAH YAR and another---Respondents

Criminal Petition No.5-L of 2006, decided on 1st March, 2006.

(On appeal from the judgment, dated 18-10-2005 of the Lahore High Court, Lahore passed in Criminal Appeal No.197 of 2004).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Sentence---Incident was a day time occurrence---Only injury suffered by deceased was attributed to accused---Both Courts below had disbelieved defence plea and believed ocular account, presence of eye-witnesses at the time and place of occurrence and the promptness with which F.I.R. was lodged, but no cogent reasons had been given for not awarding the normal penalty of death for murder of deceased---High Court, as regarded sentence, had not enhanced the sentence on the ground that occurrence had taken place at the spur of the moment and not in a pre-planned manner and only single blow with Chhuri was caused to deceased---Leave to appeal was granted to consider whether accused had been correctly sentenced in accordance with law laid down by Supreme Court.

S.M. Tayyab, Senior Advocate Supreme Court and Ch. Muhammad Anwar Khan, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2007 S C M R 226

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

MUHAMMAD ALI BUGTI----Petitioner

Versus

N.E.D. UNIVERSITY OF ENGINEERING AND TECHNOLOGY

and another----Respondents

C.P.L.A. No.886-K of 2004, decided on 15th November, 2005.

Educational Institution-

--Examination of Bachelor of Engineering---Petitioner/candidate who failed to qualify examination in seven academic years, prayed that one more chance be given to him as special opportunity on humanitarian considerations---Prayer of petitioner was declined by High Court---Contention of petitioner was that he could not qualify examination on account of fact that there were extraordinary and abnormal law and order conditions prevailing in the area---Contention was repelled in view of the fact that duration of the course was spread over to five years and candidates were allowed maximum seven academic years from the date of their first admission for passing the final year examination---By declining relief in constitutional jurisdiction, High Court had neither committed any illegality nor had acted with material irregularity justifying interference by Supreme Court under Art.185(3) of the Constitution.

Ghulam Qadir Jatoi, Advocate-on-Record/Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 2nd November, 2005.

2007 S C M R 227

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Tassaduq Hussain Jillani and Karamat Nazir Bhandari, JJ

COMMISSIONER OF INCOME TAX and another---Petitioners

Versus

DAWOOD HERCULES CHEMICALS, LTD.---Respondent

Civil Petition No.3184-L of 2001, decided on 4th July, 2006.

(On appeal from the judgment, dated 6-7-2001 passed by the Lahore High Court, Lahore in Writ Petition No.2985 of 1996).

Income Tax Ordinance (XXXI of 1979)---

----Ss. 53(2) & 87---Constitution of Pakistan (1973), Art.185(3)---Delay in filing of estimate---Revised estimate filed next year---Allegation against petitioner-Company was that estimate filed by it was delayed by two days, hence, it was issued notice by Department for payment of additional tax---High Court while accepting constitutional petition filed by company found that in revised estimate filed by company next year, it paid all dues/tax on the basis of revised estimate and earlier default of two days in filing estimate was of no consequence---Plea of laches raised by Department was not accepted by High Court---Validity---Revised estimate was filed by company six days before the target date---Company had paid all its liability on the basis of revised estimate---Course adopted by company was supported by S.53(2) of Income Tax Ordinance, 1979---Earlier default of one or two days became irrelevant in facts, and circumstances of the case---Petition for leave to appeal filed by Department was dismissed.

M. Ilyas Khan, Senior Advocate Supreme Court and M. Aslam Chatha, Advocate-on-Record for Petitioners.

Dr. Ilyas Zafar, Advocate Supreme Court and Haji M. Rafi Siddiqui, Advocate-on-Record for Respondents.

2007 S C M R 229

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Steed Ashhad, JJ

AZIZULLAH MEMON----Petitioner

Versus

PROVINCE OF SINDH and another----Respondents

Civil Petition No.220-K of 2005, decided on 31st August, 2005.

(On appeal from the judgment, dated 28-12-2004 passed by Sindh Service. Tribunal, Karachi in Appeal No.192 of 2002)

Removal from Service (Special Powers) Sindh Ordinance (IX of 2000)---

--Ss. 3 & 11---Constitution of Pakistan (1973), Art.212(3)---Penalty of censure, imposition of---Entire proceedings, commencing from issuance of charge-sheet, departmental enquiry, order of imposition of penalty, alteration of the penalty by Authorized Officer and final order impugned before the Tribunal, were conducted under provisions of Sindh Civil Servants (Efficiency and Discipline) Rules, 1973 at the time when Removal from Service (Special Powers) Sindh Ordinance, 2000 was already promulgated---Removal from Service (Special Powers) Sindh Ordinance, 2000, had over-riding effect over all other laws, but neither Departmental Authorities nor the Service Tribunal bothered to notice that after the date of promulgation of the Ordinance, all disciplinary proceedings should have been initiated under said Ordinance rather than Rules enforced in 1973---Since impugned action was initiated and taken to its logical conclusion under a misconception of law and under a wrong law, it had vitiated entire proceedings including final order, which could not be sustained under the law---Proceedings as well as final order, were liable to be set aside---Supreme Court converted petition into appeal and proceedings as well as impugned order of the Service Tribunal, were set aside accordingly.

M.M. Aqil Awan, Advocate Supreme Court and Raja Sher Muhammad Khan, Advocate-on-Record for Petitioner.

Anwar Mansoor Khan, Advocate-General Sindh for Respondents.

2007 S C M R 231

[Supreme Court of Pakistan]

Present: Javed Iqbal and Hamid Ali Mirza, JJ

GHULAM MUHAMMAD----Appellant

Versus

MIAN MUHAMMAD and another----Respondents

Civil Appeal No.1894 of 2002, decided on 26th September, 2006.

(On appeal from the judgment, dated 11-10-2002 in Civil Revision No.99 of 1996 passed by the Lahore High Court, Lahore).

(a) Islamic law---

----Gift by father in favour of son---Suit by other son challenging such gift during lifetime of donor---Maintainability---Donor's statement in Court admitting such gift was corroborated by donee's statement and entries in Revenue Record ---Muslim had unfettered powers to gift away his property to anyone of his heirs to the exclusion of others---Such gift could not be invalid or void---Suit against gift was incompetent and not maintainable.

Mst. Nusrat Zohra v. Mst. Azhra Bibi and others PLD 2006 SC 15 and Safi Ullah v. Ghulam Jabbar and 4 others PLD 1955 Lah. 191 fol.

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

----S. 115 & O.XLI, R.27(1)(b)---Revision---Jamabandi, mutation and Aks Kishtwar, copies of---Revisional Court permitting production of such documents at revision stage---Validity---Authenticity of such documents being public documents could not be doubted---Revisional Court permitted such documents in view of provisions of O.XLI, R.27(l)(b), C.P.C.---Impugned order was legal.

Malik Muhammad Kabir, Advocate Supreme Court for Appellant.

Gulzarin Kiyani, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 26th September, 2006.

2007 S C M R 236

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Ch. Ijaz Ahmad, JJ

AURANGZEB through L.Rs. and others----Appellants

Versus

MUHAMMAD JAFFAR and another----Respondents

Civil Appeal No.2719 of 2001, decided on 28th September, 2006.

(On appeal from the judgment/order, dated 18-7-2001 passed by the Lahore High Court Rawalpindi Bench, Rawalpindi, in Civil Revision No.292 of 1984).

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

----S. 115---Constitution of Pakistan (1973), Art.185(3)---Gift---Validity---Revision---Scope---Concurrent findings of facts by Courts below---High. Court in revision set aside such findings---Petitioner's contentions were that High Court was not competent to set aside concurrent findings of fact in exercise of revisional jurisdiction; that power of High Court to interfere under 5.115, C.P.C., was limited to correct some legal errors and not to substitute its own findings, even if finding of Courts below were erroneous or a different view was possible; that Courts below were right in holding that ingredients of gift were not fulfilled as delivery of possession was never made, to donee, thus, gift was void under Islamic Law and that impugned judgment was result of misreading and non-reading of material evidence---Supreme Court granted leave to appeal to consider such contentions of petitioner.

Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139; Muhammad Bux v. Muhammad Ali 1984 SCMR 504 and Abdul Rahim and another v. Mrs. Jannatay Bibi and 13 others 2000 SCMR 346 ref.

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

----S. 185(3)---Appeal before Supreme Court---Pleas or grounds neither pressed during arguments before High Court nor mentioned in pleadings of parties before Courts below and High Court---Effect---Supreme Court would normally decline to interfere at stage of arguments of appeal.

Muhammad Aslam's case PLD 2001 SC 213; Mst. Bibi Jan's case PLD 1975 SC 295 and Syed Iqbal Hussain's case PLD 1967 Lah. 1138 ref.

Bashir Ahmad's case 1988 SCMR 1232; John E. Brown Lee's case AIR 1940 PC 219 and Ashfaq-ur-Rehman's case PLD 1971 SC 766 rel.

(c) Pleadings---

----Parties would be bound by their pleadings.

Mst. Murad Begum's case PLD 1974 SC 32 rel.

(d) Interpretation of documents---

----Document must be read as a whole.

Mian Nawaz Sharif's case PLD 31993 SC 473 rel.

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

----Ss. 39 & 42---Qanun-e-Shahadat (10 of 1984), Art.129(e)---Revenue Record, entries in ---Presumption of correctness would attach to such entries, unless same was rebutted and proved to have been erroneously made without any legal and solid foundation.

Hakim Khan's case 1979 SCMR 625; Haji Ghulam Rasool Khokhar's case 1990 SCMR 725; Ghulam Hussain's case PLD 1984 Pesh. 278; Sibtullah Khan's case PLD 1993 Pesh. 94 and Bhagwan Das's case AIR 1929 Lah. 93 ref.

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

----Ss. 39 & 42---Civil Procedure Code (V of 1908), 5.115---Constitution of Pakistan (1973), Art.185(3)---Oral gift through mutation---Concurrent findings of fact by Courts below that donor had not gifted land to donee as three ingredients of gift were not established; that statements of donee's witnesses were not in line with each other on factum of gift; and that donee had not examined himself as witness---High Court in revision while reversing such findings substituted its own conclusion---Validity---Entries in Revenue Record were not foundation of title, but only evidence thereof---Interpretation of entries made therein would remain a question of fact not liable to be reopened in revision---. Concurrent findings of fact reached . by Courts below on basis of evidence would be sacrosanct for purposes of revision before High Court as in reaching such findings, Courts below had not committed any jurisdictional error---High Court was not justified to give weight to mutation in question in view of evidence produced by parties---Supreme Court set side impugned judgment and restored judgments of Courts below.

?

Muhammad Yousif's case 1992 SCMR 2334; Sarfraz Khan's case 1986 SCMR 1950; Shahab Dad's case 1972 SCMR 295; Sanaullah Khan's case 1968 SCMR 311(2); Islamuddin's case 1988 SCMR 1989; Abdul Ahad's case PLD 1979 SC 890; Muhammad Bakhsh's case 1984 SCMR 504; Muhammad Siddique's case 2000 SCMR 533 and Muhammad Akhtar's case 2001 SCMR 1700 ref.

N.S. Venkatagiri Ayyanger's case PLD 1949 PC 26; Abdul Mateen's case 2006 SCMR 50; Muhammad Feroze's case 2006 SCMR 1304; Atiq-ur-Rehman's case PLD 2006 SC 309; Haji Elahi Bakhsh's case PLD 1985 SC 41; Haji Ghulam Rasool's case PLD 1971 SC 376 and Nagshar Bakhs Singh's ease AIR 1920 PC 46 rel.

(g) West Pakistan Land Revenue Act (XVI! of 1967)---

---Ss. 39 & 42---Civil Procedure Code (V of 1908), S.115---Revenue Record ---Evidentiary value---Such record not foundation of title, but only evidence thereof---Interpretation of entries made in such record would remain a question of fact not liable to be re-opened in revision petition.

Muhammad Faraz's case 1984 SCMR 724 ref.

(h) Islamic law---

--Gift---Burden of proof---Heavy onus would lie on beneficiary to prove by convincing evidence satisfying the judicial conscience of the Court that transaction shown to be a gift was executed by' donor in favour of donee.

Munawar Hussain Shah's ease PLD 1978 SC (AJ&K) 37 ref.

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

----S. 42---Mutation---Evidentiary value---Mere mutation could not confer any right.

Mst. Noor Fatima's case 1990 SCMR 629 rel.

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

----S. 115---Concurrent findings of Courts below---Interference in such findings by High Court in revisional jurisdiction---Scope.

High Court while sitting in revisional jurisdiction is not supposed to interfere in concurrent findings of the Courts below, unless it is established that those judgments were without jurisdiction or the Courts below committed illegality or material irregularity resulting into miscarriage of justice.

Mst. Kalsoom Bibi's case 2005 SCMR 135 rel.

Raja M. Ibrahim Satti, Advocate Supreme Court for Appellants.

M. Zaman Bhatti, Advocate Supreme Court for Respondent No.1

Respondent No.2: Ex parte.

2007 S C M R 246

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J and Muhammad Nawaz Abbasi, J

Makhdoom JAVED HASHMI----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.89 of 2005, decided on 9th October, 2006.

(On appeal from the judgment/order, dated 24-3-2005 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Miscellaneous No.1530/B of 2004 in Criminal Appeal No.166 of 2004).

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

----S. 124-A---Criminal Procedure Code (V of 1898), S.196---Constitution of Pakistan (1973), Art.185(3)---Jurisdiction of Trial Court---Objection---After conclusion of trial accused was convicted and sentenced by Trial Court under 5.124-A, P.P.C.---Objection raised by accused was that trial for charge under 5.124-A, P.P.C. without adhering to provisions of S.196 Cr.P.C. was not legal---Contention of prosecution was that same objection was raised by accused during trial which was dismissed by Trial Court as well as by High Court and order passed by High Court was not assailed before Supreme Court, thus the same had attained finality---Validity---Objection so raised by accused was not entertainable rather in the light of decision of High Court on the subject, accused should not have urged the same in the petition for leave to appeal before Supreme Court at the stage when sentence was sought to be suspended---Objection was overruled.

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

----Ss. 124-A, 131/109, 505(a), 500, 468, 469 & 471---Criminal Procedure Code (V of 1898), 5.426---Constitution of Pakistan (1973), Art. 185 (3)---Suspension of sentence---Deeper appreciation of evidence---Considerable portion of sentence undergone--Trial Court convicted and variously sentenced the accused, the longest term being of 7 years---Plea raised- by accused was that he had undergone a considerable portion of sentence of 7 years awarded to him and almost had completed full term of remaining sentences---Validity---Sentence could not be suspended under S.426 Cr.P.C. unless it was shown that it was based on no evidence and there was no ultimate possibility of conviction of a person to sustain---Order of High Court was not suffering from any infirmity as High Court having taken into consideration all aspects of the matter in the light of material available on record and on the basis of tentative assessment of evidence, had held that no case for suspension of sentence was made out---Supreme Court under Art.185(3) of the Constitution, was not obliged to interfere with such order of High Court declining to suspend the sentence of a person under S.426, Cr.P.C.---Most of the questions raised by parties could not be answered without deep appreciation of evidence and such exercise was unwarranted for the purpose of suspension of sentence and grant of bail after conviction---Plea raised by accused could not be considered to be a ground to suspend the sentence of accused---High Court committed no illegality in declining bail to accused by suspending his sentence and Supreme Court declined to undertake the exercise of deeper appreciation of evidence for suspension of sentence---Order passed by High Court being free from any legal infirmity or perversity, admitted no interference---Leave to appeal was refused.

Muhammad Saleem v. State PLD 2006 SC 483; Fazal Muhammad v. The State 2002 SCMR 1211 and Ghulam Abbas v. State 2003 SCMR 911 rel.

Muhammad Akram Sheikh, Senior Advocate Supreme Court , M.A. Zaidi, Advocate-on-Record and Nasir-ud-Din Khan, Advocate for Petitioner.

Munir Ahmed Bhatti, Advocate Supreme Court (Special Prosecutor) and Syed Zafar Abbas Naqvi, Advocate-on-Record for Respondent.

Nasir Saeed Sheikh, Deputy Attorney-General on Court Notice.

2007 S C M R 255

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Nasir-ul-Mulk and Syed Jamshed Ali, JJ

NADEEM alias DHEMU and others----Appellants

Versus

THE STATE----Respondents

Criminal Appeals Nos.437 to 439 of 2001, decided on 8th November, 2006.

(On appeal from the judgment, of the Lahore High Court, Lahore, dated 21-5-2001 passed in Criminal Appeal No.243 of 1998).

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

----S. 10(4)(3)---Penal Code (XLV of 1860), Ss.37, 449 & 337-J---Reappraisal of evidence---Sentence, reduction in---F.I.R. recorded on basis of suspicion---Two days delay in recording statements of victims by police---Reports of doctors, Chemical Examiner and Serologist proved that victims were drugged and subjected to sexual intercourse---Applicability of provisions of subsection (3) & (4) of S.10 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Scope---Allegation against accused/appellants was that they made two sisters and their brother take sweet mixed with intoxicating drug and then subjected two sisters to sexual intercourse and their brother to sodomy, when all the three had became unconscious---F.1.R. was lodged against accused by brother of victims .on suspicion when two accused persons showed unusual courtesy to the former---Trial Court convicted all the three accused under S.10(4) of Offence of Zina (Enforcement of Hudood) Ordinance; 1979, and each of them was sentenced to death---Accused were also convicted and sentenced to ten years rigorous imprisonment under S.449, P.P.C.---One of the accused was additionally convicted under S.377, P.P.C. and sentenced to imprisomnent for life---Accused contended that F.I.R. had been lodged on suspicion and statements of victims were recorded three days after the occurrence; that effect of drugs could not last for three days so as to postpone the recording of their statements by police; that statements of victims were inconsistent with each other; that absence of any marks of violence or resistance on the persons of victims and their admission of going back to sleep after the incident was not in consonance with allegations of rape---Validity---Accused were though named in F.I.R. by brother of victims who had not himself witnessed the incident but his suspicion came out to be true after the victims confirmed the allegations made against accused in F.I.R.--Finding his sisters and brothers in the morning in state of intoxication and having been subjected to sexual intercourse, it was not too far-fetched for complainant to suspect that accused were perpetrators of crime in view of unusual hospitality shown to him by accused on evening before the occurrence---Undoubtedly victims made their statements two days after the incident but in view of special circumstances, the facts narrated in statements could not be looked at with suspicion because of delay in their recording---Victims were not only raped but drugged and it would have taken sometime not only for the influence of drugs to fade away but for victims to recover from trauma they underwent by rapes---Eye-witnesses were victims of horrible crime and delay in recording their statements by police could not be examined on the touchstone of standards applied generally to delay in recording statements of witnesses by police---Accused knew how, to get into the house of victims by means other than through entrance door which was otherwise bolted from inside---Infirmities pointed out by defence in testimonies of three witnesses had to be examined from perspective that details furnished by witnesses were of an incident which occurred when they were intoxicated and were in semi conscious, if not fully unconscious state of mind---Doctor who had examined three victims found that they were in semi conscious state and had been subjected to sexual intercourse---Vaginal swabs and anal swabs were found to be stained with semen---Blood and urine samples taken from all victims were found to contain traces of tranquillizer---From reports of doctors, Chemical Examiner. and Serologist two facts stood established that victims were drugged and then subjected to sexual intercourse and this part of evidence had also not been seriously questioned either in cross-examination of witnesses nor at the bar---Accused persons who allegedly committed rape with sister and sodomy with brother was aged 30 and entire episode according to evidence on record had not taken too long; most likely he had committed sexual intercourse only once---Three victims and three accused being there, each of the victim was raped only once---Provisions of S.10(4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, which pertained to commission of Zina-bil-Jabr with one victim by two or more persons would not be attracted---Conviction and sentence of death of accused under S.10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, were, therefore, set aside---Two of the accused were, however, convicted under S.10(3) of the Ordinance and each of them was sentenced to 25 years rigorous imprisonment---Conviction and sentence of accused who committed sodomy was to remain intact---Conviction of all accused persons under Ss.449 and 337-J, P.P.C. and sentences of fine were upheld; however, sentences of imprisonment for each of the offence was reduced to five years imprisonment-All the sentences of imprisonment, in view of heinousness of crime, were directed to run consecutively---Appeals were dismissed.

?

Sardar M. Latif Khan Khosa, Advocate Supreme Court for Appellant (in Criminal Appeal No.437 of 2001).

Nemo for Appellant (in Criminal Appeal No.438 of 2001).

M. Zaman Bhatti, Advocate Supreme Court for Appellant (in Criminal Appeal No.439 of 2001).

Ch. Munir Sadiq, Advocate Supreme Court for the State.

Date of hearing: 15th September, 2006.

2007 S C M R 262

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Ch. Ijaz Ahmed, JJ

Civil Appeals Nos.2037 and 2038 of 2001

EVACUEE TRUST PROPERTY BOARD and others----Appellants

Versus

Mst. SAKINA BIBI and others----Respondents

(On appeal from the judgment/order, dated 10-11-1999 passed by the Lahore High Court, Lahore in Civil Revision No.662/D of 1984).

Civil Appeal No.1530 of 2001

EVACUEE TRUST PROPERTY BOARD and another---Appellants

Versus

GHULAM HAIDER and others---Respondents

(On appeal from the judgment/order, dated 13-4-2000 passed by the High Court of Sindh, Circuit Court, Larkana, in Civil Revision No.24 of 1999).

Civil Appeals Nos.2037, 2038 and 1530 of 2001, decided on 27th September, 2006, decided on 27th September, 2006.

(a) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----Ss. 8 & 14---Civil Procedure Code (V of 1908), S.9---Declaration of property as evacuee trust property---Jurisdiction of Civil Court---Scope---Decision of Custodian on status of property would have binding effect over Civil Court---Civil Court had no jurisdiction to take cognizance of such matter.

Mst. Zakia Begum's case 1992 SCMR 1313; 1995 SCMR 1740 and Iftikhar-ud-Din's case 2000 SCMR 1 ref.

Ahmad's case 2004 SCMR 440; Muhammad Jamil Asghar's ease PLD 1965 SC 698; S. Muhammad Hashim's case PLD 1970 SC 326; Begun Darab Sultana's case 1982 Pak. SC Cases 907; Nazir Ahmad's case 1988 SCMR 824; Shaukat Hayat Jumani's case 1991 SCMR 580; Falak Sher's case 1987 SCMR 231; Muhammad Ramzan's case NLR 1995 UC 43 and Abdul Aziz Khan's case 2000 SCMR 1371 rel.

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

----Art. 185---Appeal to Supreme Court---Subsequent events---Supreme Court had ample jurisdiction to take notice of such events.

Mst. Amina Begun and others v. Mehar Ghulam Dastagir PLD 1978 SC 220 rel.

(c) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----Ss. 8 & 14---Civil Procedure Code (V of 1908), S.9---Declaration as to status of' property---Pendency of reference before Chairman--Jurisdiction of Civil Court---Scope---Civil Court could not assume jurisdiction and proceed in such matter---Chairman had ample power to decide whether property had a character of evacuee or not while exercising power under S.8 of Evacuee Trust Properties (Management and Disposal) Act, 1975.

Khurshid Zaman's case 1999 SCMR 1007 rel.

(d) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----Ss. 8 & 14---Civil Procedure Code (V of 1908), S.9---Notification of Evacuee Trust Property Board for taking over control of property---Jurisdiction of Civil Court---Scope---Such notification could not be challenged before Civil Court.

(e) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

---Ss. 8 & 14---Constitution of Pakistan (1973), Art.199---Constitution jurisdiction of High Court---Scope---Order of Custodian regarding status of property---Such order could not be interfered in constitutional jurisdiction, unless same was passed without application of mind and without perusing record or in violation of law.

Muhammad Munir's case 1993 CLC 478 and Mst. Safia Begum's case 1994 MLD 213 rel.

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

----S. 9---Civil Court assuming jurisdiction in spite of exclusive bar contained under provisions of special law---Effect---Order and judgment of Civil Court would be without lawful authority or void.

(g) Limitation----

---Void order---No limitation would run against such order.

(h) Constitution of Pakistan (1973)---

----Art. 185(3)---Supreme Court Rules, 1980, O.XIII, R.1---Petition for leave to appeal---Void orders under challenge---Condonation of delay of one day---No limitation would run against void order---Supreme Court condoned such delay in circumstances.

(i) Jurisdiction---

---Pure question of law could be raised at any stage of proceedings.

Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690 and Almas Ahmad Faiz's case 2006 SCMR 783 rel.

(j) Pleadings---

---Pleadings of parties would not control or govern application of proper law to establish or prove against a claim or assertion.

Abdul Sattar's case NLR 1992 SC Judgment 279 ref.

(k) Constitution of Pakistan (1973)---

---Arts. 4 & 185(3)---Civil Procedure Code (V of 1908), S.9---Observation of Supreme Court while disposing of civil petition not debarring petitioner from recourse to Civil Court to establish his claimed right---Effect---Such observation would not mean that permission was granted by Supreme Court in violation of exclusive bar contained under a special law---Duty of Civil Court to decide matter in accordance with law in view of Art.4 of the Constitution.

Muhammad Sadiq's case 1978 SCMR 130 ref.

Utility Stores Corporation's case PLD 1987 SC 447 rel.

Mian Qamar-uz-Zaman, Advocate Supreme Court for Appellants (in Civil Appeals Nos. 2037 and 1530 of 2001).

Mirza Naseer Ahmed, Advocate Supreme Court for Appellants (in Civil Appeal No.2038 of 2001).

Rafiq Javed Butt, Advocate Supreme Court for Respondents Nos.7-9, 11 and 12 (in Civil Appeal No.2037 of 2001).

Respondents Nos.2-5: Ex parte (in Civil Appeal No.2037 of 2001).

Mirza Naseer Ahmed, Advocate Supreme Court for Respondents Nos.13(I-x), 14(I-iv), 15, 16(I-ix) (in Civil Appeal No.2037 of 2001).

Rafiq Javed Butt, Advocate Supreme Court for Respondents Nos.3, 5, 6, 7 and 8 (in Civil Appeal No.2038 of 2001).

Respondents Nos.2(i), 2(ii), 2(iii), 2(iv) (in Civil Appeal No.2038 of 2001): Ex parte.

Nemo for Respondents Nos.1(i), 2 and 3 (in Civil Appeal No.1530 of 2001).

Nemo for Respondent No.4 (in Civil Appeal No.1530 of 2001).

Date of hearing: 27th September, 2006.

2007 S C M R 274

[Supreme Court of Pakistan]

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

Major (Rtd.) Khawaja MUHAMMAD YOUSAF and others----Appellants

Versus

ZILA COUNCIL and others----Respondents

Civil Appeals Nos.1301, 1305 and 1306 of 2006 in C.Ps. Nos.1586, 1529 and 1530-L of 2004, decided on 20th September, 2006.

(On appeal from the judgment, dated 25-3-2003, 11-3-2004 passed by Lahore High Court, Lahore in Writ Petitions Nos.13510 of 2002, 3437 and 3438 of 2004).

(a) Punjab Local Councils (Lease) Rules, 1990---

---R. 8(2)---Export tax, overcharging of---Liability to pay eleven times of penalty on overcharged amount would be that of lessee-contractor.

(b) Punjab Local Councils (Lease) Rules, 1990---

---R. 8(2)(3)---Contract Act (IX of 1872), S.233---Export tax, overcharging of---Termination of contractor's lease by efflux of time---Refund of overcharged amount to petitioner by Zila Council from securities of contractor---Refusal of Zila Council to pay to petitioner amount of penalty equal to eleven times of overcharged amount---. Petitioner's plea was that after termination of lease awarded to contractor, Zila Council as his principal was liable to pay amount of penalty---Validity---Petitioner had raised claim for recovery of penalty amount much after termination of lease-contract and beyond period of two days limitation---Petitioner after accepting overcharged amount had submitted a time-barred claim for penalty amount not to relevant quarter but to Chief Minister having no jurisdiction to decide the matter---After termination of lease-contract, securities had been released to contractor---Zila Council for recovery of penalty amount as land revenue had taken proceedings against contractor---Contractor was authorized to collect export tax on behalf of Zila Council, and petitioner could press his claim against Zila Council, but he was bound to file claim within prescribed time by joining contractor as party---Petitioner in his claim for penalty amount had not joined contractor as party---Impugned order was upheld in circumstances.

Shivlal Motilal v. Birdichand Jivraj and another AIR 1917 Born. 268 ref.

(c) Contract Act (IX of 1872)---

----S. 233---Right of person dealing with agent---Liability of agent or principal or of both---Enforcement of such liability---No procedure for enforcing such liability was provided in S.233 of Contract Act, 1872, which enacted only substantive law laying down as to who would be held liable.

Shivlal Motilal v. Birdichand Jivraj and another AIR 1917 Born. 268 ref.

S.M. Masood, Advocate Supreme Court for Appellant (in Civil Appeal No.1301 of 2006).

Mian Nisar Ahmad, Advocate Supreme Court for Appellant (in Civil Appeals. Nos.1305 and 1306 of 2006).

Khawaja Muhammad Afzal, Advocate Supreme Court for Respondents.

Date of hearing: 20th September, 2006.

2007 S C M R 278

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Syed Jamshed Ali, JJ

MUHAMMAD AKHLAQ MEMON----Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman----Respondent

C.P.L.A. No.737 of 2004, decided on 1st November, 2006.

(On appeal from the order of High Court Rawalpindi Bench, Rawalpindi dated 16-2-2004 passed in I.C.A. No.21 of 2004).

Constitution of Pakistan (1973)---

----Art. 185 (3)---Auction---Non-delivery of possession---Petitioner was the highest bidder for purchase of plot in question in auction conducted by Capital Development Authority---On account of 25 % of bid amount, petitioner deposited a sum of Rs.10,500,000/- in year 1999 but Authority failed to issue acceptance letter to him---Contention of petitioner was that Capital Development Authority was in law bound to honour its commitment and abide by terms and conditions on which land was offered for disposal through public auction to act fairly, reasonably and equitably---Petitioner further contended that Capital Development Authority remained quiet by not following proceedings of constitutional petition filed by encroachers on the land and getting stay vacated and not pursuing the Court to expedite its disposal---Contention of Capital Development Authority was that petitioner had himself made an admission in memo of appeal before High Court that though the Authority was prepared to refund his amount, he had refused to accept the same-Validity-Leave to appeal was granted by Supreme Court to consider the questions of law raised by the parties.

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court and Mehar Khan Malik, Advocate-on-Record for Petitioner.

Arif Chaudhry, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for the Respondent.

2007 S C M R 281

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Faqir Muhammad Khokhar and Ch. Ijaz Ahmed, JJ

Mst. MARYAM BIBI and others----Petitioners

Versus

MUHAMMAD ALI through L.Rs.---- Respondents

Civil Petition No.2338-L of 2005, decided on 13th October, 200.

(On appeal from the judgment/order, dated 24-10-2005 passed by Lahore High Court, Lahore in F.A.O. No.69 of 2004).

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

----S. 5---Civil Procedure Code (V of 1908), O.XXIII, . R.3---Pre­emption suit---Disposal of second appeal by High Court in terms of compromise between parties giving 1/3rd suit-land to pre-emptor--Withdrawal of Zar-e-Panjum by pre-emptor along with total decretal amount deposited by him in Court---Execution of judgment of High Court for recovery of possession of 1/3rd suit-land from vendee­ defendant---Objection by vendee-defendant that pre-emptor had no right to file execution petition---Validity---Compromise deed was silent qua consideration to be paid or not to be paid by pre-emptor qua 1/3rd suit­land---Suit-land was not originally owned by vendee, who had purchased same through registered sale-deed from original owner---Vendee could not be asked to surrender 1/3rd land out of total suit-land purchased by him to pre-emptor---Pre-emptor wanted to take 1/3rd suit-land without paying even a single penny to vendee, who had purchased same from original owner for consideration---Equity demanded interpretation of compromise deed in a manner which should give benefit to vendee and not to pre-emptor---Pre-emptor was directed to pay on specified date 1/3rd of total price to vendee-defendant, who would hand over possession of 1/3rd suit-land to pre-emptor simultaneously.

(b) Interpretation of documents---

----Question of proper construction of a document would be a question of law and not of fact.

Gulzar Khan's case PLJ 1974 SC 179 rel.

(c) Interpretation of documents---

----Confusion created due to omission of words in compromise deed---Effect---Examination of intention of parties by Court would become necessary in such situation---Principles.

M. Dilawar Mehmood, Senior Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Petitioner.

M. Zafar Ch. Advocate Supreme Court with Haji M. Rafi Siddiqui, Advocate-on-Record for Respondents 1-A to 1-B.

2007 S C M R 287

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Raja Fayyaz Ahmed, JJ

MUHAMMAD RAFIQUE----Petitioner

Versus

NAZIR AHMED and others----Respondents

Civil Petition No. 1502-L of 2001, decided on 10th November, 2006.

(On appeal from the order, dated 23-4-2001 of the Lahore High Court Multan Bench, Multan, passed in Writ Petition No.10684 of 2000).

Constitution of Pakistan (1973)---

----Art. 199---West Pakistan Land Revenue Rules, 1968, R.19----Constitutional jurisdiction of High Court---Scope---Substituting decision of lower forums---Petitioner was appointed as lambardar by Revenue Authorities and Board of Revenue confirmed the decision---High Court in exercise of constitutional jurisdiction set aside decision of Revenue hierarchy and appointed respondent as lambardar---Validity---Nothing was available on record which could indicate any reason to disqualify petitioner from his appointment as lambardar---Constitutional jurisdiction of High Court could not be used to substitute its own preferences with the preferences of competent authorities, unless it could be shown that the decision made by competent authorities suffered from any jurisdictional defect or any illegality---High Court while exercising powers vesting in it under Art. 199 of the Constitution, could not sit in appeal over the decisions or judgments questioned through such jurisdiction---Respondent, in the present case, might well had a better choice in the eyes of High Court but it could not have been the reason permitting High Court to declare a decision of Board of Revenue to be illegal unless it was shown that choice made by District Collector and Board of Revenue proceeded on illegal or invalid considerations which had not been so found by High Court---Jurisdiction exercised by High Court in setting aside the decision of Board of Revenue could not be sustained---Supreme Court converted petition for leave to appeal into appeal and set aside judgment passed by High Court---Appeal was allowed.

Ghulam Hussain's case 1976 SCMR 75 ref.

Shaukat Ali Mehr, M. Munir Paracha and Nazir Ahmed Qureshi, Advocates Supreme Court for Petitioner.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court with Masood, Advocate-on-Record for Respondent No. 1.

M. Akbar Tarar, Additional Advocate-General, Punjab for Respondents Nos.2, 3 and 4.

Date of hearing: 10th November, 2006.

2007 S C M R 289

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Ch. Ijaz Ahmed, JJ

MUHAMMAD AKRAM and others----Appellants

Versus

MEMBER, BOARD OF REVENUE and another----Respondents

Civil Appeal No.165 of 2003, decided on 21st September, 2006.

(On appeal from the judgment, dated 21-11-2000 passed by the Lahore High Court, Lahore in Writ Petition No.2576 of 1987).

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

----S. 11 & O.XXIII, R.1---Res judicata---Appeal against order of dismissal of suit for being premature---Dismissal of appeal becoming infructuous on account of withdrawal of suit---Effect---In absence of adjudication on merits, mere withdrawal of suit would not operate as res judicata.

Ghulam Nabi's case PLD 1983 SC 344 rel.

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

---Ss. 10 & 24---Constitution of Pakistan (1973), Art.25---Resumption of State land from Municipal Committee and its sale to sitting shopkeepers at market price by private treaty---Shop in applicant's possession was rented out by Committee to his predecessor-in-interest, who later on handed over same to applicant---Refusal of authority to sell such shop to applicant for not being its original allottee---Validity---Applicant's possession over shop was on basis of agreement executed between Committee and original allottee---Mere payment of amount of superstructure of shop by Committee to original allottee in view of compromise arrived between them could not change status of applicant and distinguish his case with other sitting shopkeepers---Committee was not owner of State land---Board of Revenue had directed to recover rent already received by Committee' from shopkeepers-According to memorandum issued by Board of Revenue, right to purchase shop in applicant's possession was that of only original allottee---Applicant's case was similar to the case of other sitting shopkeepers---Impugned action was hit by Art.25 of the Constitution, thus, was set aside in circumstances.

I.A. Sherwani's case 1991 SCMR 1041 rel.

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

----Art. 4---Duty of public functionaries to act in accordance with law.

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

----Art. 5(2)---Everybody is bound to obey the command of the Constitution.

Ch. Zahoor Elahi's case PLD 1975 SC 383 rel.

Saeedur Rehman Farrukh, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Appellants.

Nemo for Respondents.

2007 S C M R 296

[Supreme Court of Pakistan]

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

UMER SAID and others----Petitioners

Versus

DISTRICT EDUCATION OFFICER (FEMALE) and others----Respondent

Civil Petitions Nos.563-P, 564-P, 565-P of 2004, decided on 16th August, 2006.

(On appeal from the judgment, dated 18-5-2004 of the N.-W.F.P. Service Tribunal, Peshawar passed in Appeals Nos.2460, 2461 and 2462 of 1997).

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

----S. 4---Reinstatement without back-benefits---Appointment against land grants---Civil servants were class-IV employees in education department and their services were terminated for the reason that they did not donate lands to the department---Service Tribunal set aside the termination orders of civil servants and directed the authorities to adjust them as and when vacancy would exist---Plea raised by civil servants was that after setting aside of termination order, they should have been reinstated with back-benefits---Validity---Policy of making appointments against land grants was tantamount to sale of public office for property---Such appointments were not only against the Constitution but also were not conducive to public interest and were' void ab inito--Once it was held that termination of civil servants was void ab initio, they became entitled to reinstatement with back-benefits and could not, despite such decree, be left at the mercy of department for adjustment, which might or might not occur or which might or might not be possible---Conclusion arrived at by Service Tribunal was unlawful and amounted to giving no relief to successful civil servants---Supreme Court converted petition for leave to appeal into appeal and set aside the judgment passed by Service Tribunal---Supreme Court reinstated the civil servants with effect from the date of their removal with back-benefits---Appeal was allowed.

1993 SCMR 1287 fol.

Afridi Khan, Advocate Supreme Court with Mir Adam Khan, Advocate-on-Record for Petitioners (in all cases).

Khushdil Khan, Additional Advocate-General, N.-W.F.P. for Respondents (in all cases).

Date of hearing: 16th August, 2006.

2007 S C M R 298

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Ch. Ijaz Ahmed, JJ

ATTAULLAH KHAN and others----Petitioners

Versus

SAMIULLAH and others---Respondents

Civil Appeals Nos.436 and C.P.. No.1-P of 2002, decided on 25th September, 2006.

(On appeal from the judgment, dated 1-10-2001 passed by the Peshawar High Court, D.I. Khan Bench, in Civil Revision No.141 of 1995).

(a) Interpretation of statutes---

----Special law excludes general law.

Zia-ur-Rehman's case PLD 1973 St 49 rel.

(b) Administration of justice---

----Judge must wear all the laws of country on the sleeve of his robe.

Shaukat Nawaz's case 1988 SCMR 851 ref.

Muhammad Sarwar's case PLD 1969 SC 278 rel.

Raja M. Ibrahim Satti, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants (in C.A. No.436 of 2002)

M. Munir Peracha, Advocate Supreme Court along with Samad Mehmood, Advocate Supreme Court for Respondent No:1 (in C.A. No.436 of 2002).

Respondents Nos.2-15 (in C.A. No.436 of 2002): Ex parte.

Munir Peracha, Advocate Supreme Court along with Samad Mehmood, Advocate Supreme Court for Petitioner (in C.P. No.1-P of 2002).

Raja M. Ibrahim Satti, Advocate Supreme Court for Respondent (in C.P. 1-P of 2002).

2007 S C M R 305

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and Muhammad Nawaz Abbasi, J

ZULFIQAR and others----Petitioners

Versus

Mst. NIAZ BIBI through L.Rs.----Respondents

Civil Petitions Nos.1590 to 1595 of 2005, decided on 10th October, 2006.

(On appeal from the judgment of Lahore High Court, Multan Bench, dated 2-2-2005 passed in Civil Revisions Nos.106 to 109, 173 and 340 of 1996).

West Pakistan Muslim Personal Law (Shariat) Application Act (IX of 1948)---

---S. 3---West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), S.2---Limited owner---Ancestral property being governed by custom whether remains subject of agricultural custom---Leave to appeal was granted by Supreme Court to consider; whether property owned by Muslim which was being governed by agriculture custom before enforcement of West Pakistan Muslim Personal Law (Shariat) Application Act, 1948 and West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 would continue to be governed by custom as was observed by Supreme Court in case titled Mst. Khatun vs. Malla and five others, reported as 1974 SCMR 341 or the view taken in case titled Abdul Ghafoor vs. Muhammad Shafi, reported as PLD 1985 SC 407, would prevail and limited owner would not acquire the status of full owner under law and whether restriction on alienation would be justified and would not be in conflict to fundamental right of a person and law of Shariah.

Mst. Khatun v. Malla and 5 others 1974 SCMR 341 and Abdul Ghafoor v. Muhammad Shafi PLD 1985 SC 407 ref.

Gulzarin Kiyani, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioners.

Nemo for Respondents.

2007 S C M R 307

[Supreme Court of' Pakistan]

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

Raja HAMAYUN SARFRAZ KHAN and others----Petitioners

Versus

NOOR MUHAMMAD----Respondent

Civil Petitions Nos.2909 and 3009-L of 2001, decided on 10th October, 2006.

(On appeal from the judgment/order, dated 4-7-2001 passed by Lahore High Court, Lahore in Civil Revision No.985-D of 1991 (corrected vide order dated 16-11-2006).

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

----O. XX, Rr.1, 2 & O.XLI, R.31---Judgment---Principle---Where a law provides for writing, announcing and signing a judgment, all that must be done in a way to give validity to the judgment.

(b) Administration of justice---

---When a thing is to be done in a particular manner, it must be done in that way and not otherwise.

Atta Muhammad Qureshi's case PLD 1971 SC 61; and Agha Shorish Kashmiri's ease PLD 1969 SC 14 rel.

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

----S. I15---Revisional jurisdiction of High Court---Scope---High Court has vast powers under S.115 C.P.C.

Muhammad Mian's case 1995 SCMR 69 rel.

(d) Administration of justice---

---- Natural justice, principles of---Condemning a person---Principle---When Judge decides to condemn a man whether a party or witness, the facts on which condemnation is intended to be based must be put to him so as to give him opportunity to explain the condemnatory facts and thus to remove the Judge's suspicion about his conduct.

(e) Administration of justice---

----Judge must wear all laws of country on the sleeves of his robes---Failure of counsel to properly advice the Judge is not a complete excuse in the matter.

Muhammad Sarwar's case PLD 1969 SC 278 rel.

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

----S. 115 & O.XLI, Rr.23 & 24---Specific Relief Act (I of 1877), S.12---Revisional jurisdiction of High Court--Decision of revision---After recording of evidence, Trial Court decreed the suit in favour of plaintiff but Lower Appellate Court allowed the appeal and dismissed the suit---High Court in exercise of revisional jurisdiction made certain observations regarding integrity of Lower Appellate Court, set aside his judgment and restored that of the Trial Court---Plea raised by defendants was that when High Court had made observations, then instead of deciding revision petition, the case should have been remanded to Trial Court for decision afresh---Validity---High Court had taken a lot of pain to examine the case keeping in view the peculiar circumstances of the case---Matter had been pending between the parties since long and High Court was justified not to remand the case to Lower Appellate Court---High Court had given solid reasons and reversed finding of Lower Appellate Court---Trial Court had decided the ease in favour of plaintiff after judicial application of mind, whereas Lower Appellate Court had reversed the same without meeting the reasoning of Trial Court---High Court had restored the reasoned judgment which was delivered by Trial Court in accordance with law---Supreme Court declined to interfere with the judgment and decree passed by High Court in exercise of revisional jurisdiction---Leave to appeal was refused.

Madan Gopal's case PLD 1969 SC 617 rel.

Mushtaq Raj, Advocate Supreme Court for Petitioners (in C.P. No.2909 of 2001).

Ch. Irshad Ullah Chatta, with Walayat Umar, Advocate-on-Record for Petitioner (in C.P. No.3009 of 2001).

Nemo for Respondent.

2007 S C M R 315

[Supreme Court of Pakistan]

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

AFZAL and another----Petitioners

Versus

THE STATE----Respondent

Jail Petition No.347 of 2005, decided on 5th May, 2006.

(On appeal from the judgment, dated 20-7-2005 passed by High Court of Balochistan, Quetta in Criminal Jail Appeal No.(S)9 of 2004).

Penal Code (XLV of 1860)---

----Ss. 302(b), 337-A (ii), 337-F(i), 337-L, 148 & 149---Constitution of Pakistan (1973), Art.l85(3)---Reappraisal of evidence---Vicarious liability---Concurrent finding of guilt by two Courts---All the accused having formed unlawful assembly armed with lethal weapons attacked complainant party and caused firearm injuries to deceased and prosecution witnesses---Trial Court awarded death sentence to two accused but High Court converted the sentence into life imprisonment---Plea raised by accused was that it was not ascertained as to who was individually responsible for causing specific injuries to deceased and prosecution witnesses---Validity---Accused by virtue of vicarious liability were equally responsible for the murder of deceased and causing injuries to prosecution witnesses---High Court. came to the conclusion that it was a case of vicarious liability and individual role was not ascertainable, converted the sentence of death awarded to accused into life imprisonment---Incident was a broad-daylight occurrence and eye-witnesses consistently stated about the active participation of all accused in the occurrence and nothing was brought on record to suggest even a slight doubt regarding their guilt---Accused failed to convince that either testimony of injured eye-witnesses was not reliable or participation of accused in the occurrence was doubtful---Supreme Court did not find any misreading or non-reading of evidence either by Trial Court or High Court in coming to conclusion regarding guilt of accused or any other legal or factual infirmity in the judgment of High Court calling for interference---Leave to appeal was refused.

Tariq Bilal, Advocate Supreme Court for Petitioners.

Raja Abdul Ghafoor, Advocate Supreme Court for the Stale.

Date of hearing: 5th May, 2006.

2007 S C M R 318

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Ch. Ijaz Ahmed, JJ

MUHAMMAD SIDIQ through L.Rs.----Appellants

Versus

PUNJAB SERVICE TRIBUNAL, LAHORE and others----Respondents

Civil Appeals Nos.1390 and 1391 of 2002, decided on 12th September, 2006.

(Against the judgment, dated 25-1-2001 passed by the Punjab Service Tribunal, Lahore in Appeals Nos.1865 and 1866 of 1998).

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

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Recalling of reinstatement order obtained by appellant illegally---Validity---Appellants secured reinstatement order by filing appeal before Minister by concealing dismissal of his appeal upto Supreme Court against order of his termination from service---Minister had no' lawful authority under service laws to entertain such appeal---Authority had passed reinstatement order under influence and dictation of Minister---Authority could not reopen such matter, which had been settled between them upto Supreme Court---Principle of res judicata would attract to such matter---No perpetual rights could be gained on basis of an illegal order---Authority was well within its right to withdraw reinstatement order, which was not sustainable in eyes of law---Appeal against impugned order was dismissed in circumstances.

Muhammad Arshad Saeed's case 2004 SCMR 1033; Pir Bakhsh v. The Chairman, Allotment Committee PLD 1987 SC 145; Abdul Majid's case PLD 1982 SC 146; Asif Ja Siddique's case PLD 1983 SC 46; Miani's case PLD 1973 SC 17; Akhtar v. University of the Punjab 1979 SCMR 549; Ghulam Mohiuddin's case PLD 1964 SC 829 and Abdul Haque Indha's case 2000 SCMR 907 rel.

(b) Civil service---

----Departmental appeal---Minister had no lawful authority under service laws to entertain such appeal.

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

---S. 21---Illegal order---Power-to recall such order---Scope---Principles of locus poenitentiae, applicability---No perpetual rights could be gained on basis of an illegal order---Principle of locus poenitentiae would not attract to such order.

Abdul Haque Indha's case 2000 SCMR 907 rel.

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

---S. 4---Constitution of Pakistan (1973), Art.212(3)---Order of departmental authority upheld by Service Tribunal---Validity---Supreme Court while exercising power under Art.212(3) of the Constitution, would not, normally, interfere in such concurrent findings.

?

Iftikhar Ahmad Malik's case 2005 SCMR 806 rel.

Ishtiaq Haider, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Appellants (in all cases).

Raja Saeed Akram, A.A.-G. Punjab for Respondents (in all cases).

2007 S C M R 324

[Shariat Appellate Jurisdiction]

Present: Justice Javed Iqbal, Chairman, Justices Muhammad Nawaz Abbasi, Raja Fayyaz Ahmed, Allama Khalid Mehmood and Dr. Rashid Ahmed Jullundhari, Members

MUHAMMAD JAVAID----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.40(s) of 2004, decided on 4th January, 2006.

(On appeal from the judgment, dated 26-1-2004 of the Federal Shariat Court, Islamabad- passed in Jail Criminal Appeal No.89/1 of 2000, Criminal Appeal No.86/1 and Criminal Reference No.2/1 of 2002).

Penal Code (XLV o f 1860)---

----S. 302(b)/34---Offence of' Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.7---Constitution of Pakistan (1973), Art.203-F---Reappraisal of evidence---Inter se relationship of witnesses---Interested witness---Reluctance of general public to become witness---Crime empties not recovered from place of occurrence---Effect---Allegation against accused/petitioner was that he, while armed with fire-arm, committed murder of maternal grandmother of complainant and abducted her (complainant's) maternal aunt for commission of Zina---Trial Court convicted accused on two counts and sentenced him to death under S.302(b), P.P.C. and passed life imprisonment on him under S.7 of Offence of Zina (Enforcement of' Hudood) Ordinance, 1979---Federal Shariat Court maintained death sentence under S.302(b), P.P.C. but set aside life imprisonment under Offence of Zina (Enforcement Hudood) Ordinance, 1979---Accused contended that in absence of corroboration, reliance could not have been placed on statements of interested prosecution witnesses; that no crime empties were recovered from place of occurrence that no burning signs were found on the body of deceased which belied prosecution story that fire was made from a distance of about 2-1/2 feet---Validity---Statements of eye-witnesses including abductee were consistent, worthy of credence and straightforward which stood firm to the test of cross-examination---Being inmates of house, eye-witnesses were natural witnesses and they could not be termed as interested witnesses as they did not bear animus and rancour against accused---Not the inter se relationship and friendship but intrinsic value of statements of witnesses was required to be taken into consideration---In assessing value of evidence of eye-witnesses, it was necessary to examine whether in facts and circumstances of the case their presence at the scene of occurrence in such situation as was to make it possible for them to witness the occurrence should be believed and that whether there was anything inherently improbable or unreliable in their evidence---Interested witness was one who had a motive for falsely implicating an accused---Reluctance of general public to become witness had become judiciously recognized fact and it was an admitted fact that public for certain obvious reasons did not co-operate with police in order to avoid complicated and time consuming process of courts---Admittedly, crime empties could not be recovered but in view of eye-witnesses' account, duly corroborated by medical evidence, such aspect was not to have substantial bearing on merits of the case---Accused had committed brutal murder of an elderly woman, hence question of any leniency did not arise---Normal sentence of Qatl-e-Amad was death and in absence of any mitigating or extenuating circumstances, sentence of death could not be converted into life imprisonment---Petition was dismissed.

Mirza Shah v. State 1992 SCMR 1475; Muhammad Khan v. Dost Muhammad and 17 others PLD 1975 SC 607; Sultan and others v. The State 1987 SCMR 1177; Muhammad Afzal v. The State 1987 SCMR 1; Zardad v. The State 1991 SCMR 458; Muhammad Shah v. The State PLD 1984 SC 278; Malik Aman v. The State 1986 SCMR 17; Khair Gul v. The State 1989.SCMR 491; Rehman Ali v. The State 1984 SCMR 109; Ballia and others v. The State 1985 SCMR 854; Yar Muhammad and 3 others v. The State 1992 SCMR 96; Yamin Kumhar v. The State PLD 1990 Kar. 275; Mumtazuddin v. The State PLD 1978 SC 114; Muhammad v. The State PLD 1981 SC 635; Muhammad Shafi and others v. The State PLD 1967 SC 167; Iqbal alias Bala v. The State 1994 SCMR 1; Nazir v. The State PLD 1962 SC 269; Khalil Ahmed v. The State 1976 SCMR 161; Allah Ditta and others v. The State 1970 SCMR 734; Muhammad Akbar v. Muhammad Khan and others PLD 1988 SC 274; Shehruddin v. Allah Rakhia 1989 SCMR 1461; Din Muhammad v. Crown 1969 SCMR 777; Sakhawat v. The State 2001 SCMR 244; Muhammad Afzal v. Ghulam Asghar PLD 2000 SC 12; Muhammad Nazir v. Tariq 1992 SCMR 983 and Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452 ref.

S.M. Abdul Wahab, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 4th January, 2006.

2007 S C M R 330

[Supreme Court of Pakistan]

Present: Mian Sitakirullah Jan and Ch. Ijaz Ahmed, JJ

ABDUL MAJEED ZAFAR and others----Appellants

Versus

GOVERNOR OF THE PUNJAB through Chief Secretary

and others----Respondents

Civil Appeals Nos.593 to 596 of 2003, decided on 21st September, 2006.

(On appeal from the judgment, dated 19-7-2002 passed by the Punjab Service Tribunal, Lahore, in Appeals Nos.174 and 1585 of 2001).

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

----R. 14---Punjab Civil Servants Act (VIII of 1974), S.7---Seniority list, withdrawal of---Non-assigning of reason and non-issuance of notice to affected parties by Authority---Validity---Principles of natural justice, unless prohibited by wording of statute, must be read in each and every statute---Impugned order was not a speaking one lacking detailed reasons as required under law and also in order to ascertain what had compelled authority to pass same---Impugned order was set aside with directions to Authority to pass speaking order afresh with reasons after affording opportunity of hearing to all concerned.

Fazalur Rehman's case PLD 1964 SC 410; Pakistan Chrome Mines Ltd.'s case 1983 SCMr 1208 and Public-at-Larges case PLD 1987 SC 304 rel..

(b) Natural justice, principles of---

----Principles of natural justice, unless prohibited by wording of statute, must be read in each and every statute.

Fazalur Rehman's case PLD 1964 SC 410; Pakistan Chrome Mines Ltd.'s case 1983 SCMr 1208 and Public-at-Larges case PLD 1987 SC 304 rel.

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

----Arts. 4 & 5(2)---Public functionaries, duty of---To act in accordance with law without fear, favour and nepotism.

Ch. Zahoor Elahi's case PLD 1973 SC 383 rel.

Dr. A. Basic, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Appellants (in C.As. Nos.593 of 2003).

Mrs. Afshan Ghazanfar, A.A.-G. along with Irfan (Litigation Officer) for Respondents Nos.] and 2 (in C.As. Nos.593 of 2003).

Hafiz Tariq Naseem, Advocate Supreme Court for Respondents Nos.3 and 6 (in Civil Appeal No.593 of 2003).

Dr. A. Basit, Senior Advocate Supreme Court along with Ejaz Muhammad Khan, Advocate-on-Record for Appellants (in Civil Appeal No.594 of 2003).

Mrs. Afshan Ghazanfar, A.A.-G. for Respondents Nos.1 and 2 (in C.As. Nos.594 of 2003).

Hafiz Tariq Naseem, Advocate Supreme Court for Respondent No.3 (in C.As. Nos.594 of 2003).

Mrs. Afshan Ghazanfar, A.A.-G. for Appellants (in Civil Appeal No.595 of 2003).

Hafiz Tariq Naseem Advocate Supreme Court for Respondents Nos.1 and 17 (in Civil Appeal No.595 of 2003).

Dr. A. Basit, Senior Advocate Supreme Court along with Ejaz Muhammad Khan, Advocate-on-Record for Respondents Nos.3 to 13 (in Civil Appeal No.595 of 2003).

Mrs. Afshan Ghazanfar, A.A.-G. for Appellants (in Civil Appeal No.596 of 2003).

Hafiz Tariq Naseem, Advocate Supreme Court for Respondent No.1 (in Civil Appeal No.596 of 2003).

2007 S C M R 336

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Saiyed Saeed Ashhad, JJ

ABDUL AZIZ----Appellant

Versus

Sheikh FATEH MUHAMMAD----Respondent

Civil Appeal No.314 of 2003, decided on 1st November, 2006.

(On appeal from the judgment of Lahore High Court, Lahore, dated 19-6-2002 passed in Civil Revision No.3236 of 1996).

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

----Ss. 2(a) & 13---Constitution of Pakistan (1973), Art. 185 (3)---Leave to appeal was granted by Supreme Court to consider whether concurrent findings of fact recorded by Trial Court and Lower Appellate Court on fulfilment of Talbs were interfered with by High Court in revisional jurisdiction, without pointing out any misreading or non-reading of evidence and whether suit land being situated within the municipal limits was "immovable property" as defined in S.2 (a) of Punjab Pre-emption Act, 1991, and as such was immune from pre-emption at the time of ifs sale on 29-1-1992 and provision of law was declared repugnant to the injunctions of Islam by Shariat Appellate Bench of Supreme Court with effect from 31-12-1993.

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

----S. 115---Revisional jurisdiction, exercise of---Principles---Interference in concurrent findings on controversial question of facts or 'mixed question of law and facts in revisional jurisdiction for mere reason that another view of evidence was also possible, is not proper.

(c) Punjab Pre-emption Act (lX of 1991)---

----S. 13---Pre-emption suit---Necessary pleadings---Without pleading source of information and performance of Talbs in plaint, pre-emptor may not be in a position to prove knowledge of sale on the date on which he claimed to have made Talb-i-Muwathibat.

Noor Muhammad v. Abdul Ghani 2000 SCMR 329 rel.

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

----Ss. 2(a), 5 & 13---Pre-emption suit---Right of pre-emption, exercise of---Pre-conditions---Concurrent findings of fact by two Courts below---Immovable property situated in municipal limits---Sale in question was made on 29-1-1992, pre-emptor gained knowledge of the sale on 17-3-1992, whereafter he filed the suit---Trial Court as well as Lower Appellate Court dismissed the suit and appeal respectively---High Court in exercise of revisional jurisdiction allowed the suit on the ground that suit land was situated in municipal limits and in the light of dictum laid down by Shariat Appellate Bench of Supreme Court, in case titled Muhammad Shabbir Ahmed Khan v. Government of Punjab, reported as PLD 1994 SC 1, such land was also not exempted from the application of pre-emption law---Plea raised by vendee was that judgment of Shariat Appellate Bench of Supreme Court was not applicable to the case---Validity---Judgment of Shariat Appellate Bench of Supreme Court had to take effect from 31-12-1993 and after target date, sale in respect of immovable property situated in urban area would no longer be exempted from the right of pre-emption---Sale in question took place in 1992 and suit was also filed in the same year, therefore, notwithstanding passing of decree after target date, pre-emptor having no right of pre-emption on the date of sale and on the date of filing of suit could not maintain the suit and therefore, judgment of Shariat Appellate Bench of Supreme Court having no retrospective effect would have no application to the transaction in question---Right of pre-emption was predatory in nature and grant or refusal of such right might not depend on compliance or non-compliance of technicalities of procedural law but at the same time if being a piratical right, pre-emptor should have established existence of right of pre-emption on the date of sale, on the date of institution of suit ' and on the date of passing decree and had fulfilled essential conditions of Talbs for exercise of right of pre-emption---No factual or legal defect or infirmity in concurrent findings of two Courts subordinate to High Court, were there which called for interference of High Court in its revisional jurisdiction---Supreme Court set aside the judgment and decree passed by High Court---Appeal was allowed.

Hassan Muhammad v. Abdul Minced PLD 1982 SC 159 and Muhammad Shabbir Ahmad Khan v. Government of Punjab Province PLD 1994 SC 1 ref.

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

----S. 2(a)---Expression "immovable property"---Scope---Expression "immovable property" used in S.2(a) of Punjab Pre-emption Act, 1991, in general terms includes agricultural land situated in urban area within the limits of municipal committee or cantonment.

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

----S. 2(a)---Immovable property---Presumption---Agriculture nature of land---Onus to prove---All immovable properties including agricultural land situated within municipal limits or cantonment areas stand exempted from law of pre-emption under Punjab Pre-emption Act, 1991---Agricultural land from very inception, despite being located in municipal or cantonment area may not be exempted from law of pre-emption as it after becoming part of town may not necessarily lose its agricultural character---Unless otherwise proved, the presumption would be that land after becoming part of municipal area or cantonment, had acquired the status of urban immovable property and was no more subject to law of pre-emption---Such presumption is rebuttable as location of land by itself may not be a conclusive proof of its character---Presumption regarding agricultural character of land cannot be raised for mere reason that before becoming part of town it was agricultural land rather presumption would be that after becoming part of municipal or cantonment area, it had acquired status of urban immovable property---Pre-emptor would be under heavy burden to prove that land, even after becoming part of town, was retaining its agricultural character for the purpose of law of pre-emption.

Hassan Muhammad v. Abdul Hameed PLD 1982 SC 159 ref.

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

----S. 2(a)---Immovable property---Agriculture nature of land---Determination---True test to determine question of character of land is the use of land located within the boundaries of municipal area and cantonment to bring it in or exclude it from the purview of pre-emption law---Sale of land with reference to Khasra number through mutation or it being assessed to land revenue would not be sufficient to hold that land located in municipal area or cantonment was still holding its agricultural character---Retention or Khasra numbers of agricultural land, after its conversion into urban immovable property, in revenue record for collateral purposes may not be a conclusive evidence to hold that land was agricultural and was subject to law of pre-emption.

Gulzarin Kiani, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant.

Malik Noor Muhammad Awan, Advocate Supreme Court for Respondent.

Date of hearing: 2nd February, 2006.

2007 S C M R 346

[Supreme Court of Pakistan]

Present: Mimi Shakirullah Jan and Ch. Ijaz Ahmed, JJ

MUHAMMAD RAMZAN----Appellants/Petitioner

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB and others----Respondents

C.A. No.1160 in C.P. No.896 of 2000, decided on 14th September, 2006.

(On appeal from the judgment, dated 9-5-2000 passed by the Punjab Service Tribunal passed in Appeal No.1 of 1996).

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

----S. 4---Departmental representation filed by appellant before departmental authority beyond prescribed period---Effect---Appeal before Service Tribunal would not be competent/maintainable.

Sajjad Hussain's case 1996 SCMR 284 ref.

Inayatullah's case 2006 SCMR 535; Unreported judgment dated 24-4-2006 in C.P. No.53/Q of 2004; Muhammad Younis's case 1989 SCMR 174; Nasim Malik's case PLD 1990 SC 951; Anwar-ul-Haq's case 1995 SCMR 1505; Khyber Zaman's case 2004 SCMR 1426; Zafar Mehmood's case 1991 SCMR 640; Anwar Muhammad's case 1995 SCMR 950; Asrar Ahmed Khan's case 1990 SCMR 1356 and Ahsan Ali's case PLD 1969 SC 176 rel.

M. Munir Paracha, Advocate Supreme Court for Appellant.

Raja Saeed Akram, A.A.-G. with Shahzad Akhtar, D.S.P. Legal Khanewal for Respondents.

2007 S C M R 351

[Supreme Court of Pakistan]

Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ

COLLECTOR OF CENTRAL EXCISE AND SALES TAX----Appellant

Versus

PAKISTAN FERTILIZER COMPANY LTD.----Respondent

Civil Appeal No.2079 of 2004, decided on 10th October, 2006.

(On appeal from the judgment, dated 11-5-2005 of the High Court of the Sindh at Karachi, passed in J.M. No.24 of 1982 in C.M.A. No.198 of 2004).

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

----S. 151---Inherent jurisdiction of Court---Scope---Where jurisdiction of Court is expressly limited to decision of particular questions, the decision of other questions must be regarded as impliedly removed from its jurisdiction.

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

----S. 151---Inherent jurisdiction of Court---Scope---Powers as conferred upon a Court under 5.151 C.P.C. can only be exercised with respect to procedural matters---Exercise of such inherent powers must not affect the substantive rights of parties.

Padam Sen v. State of U.P. AIR 1961 SC 218 rel.

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

----S. 151---Inherent powers, exercise of---Principles---Such inherent powers cannot be used when some other remedy is available and more so, it cannot be exercised as appellate powers---Inherent powers as conferred upon a Court under S.151 C.P.C. applies only to the exercise of jurisdiction, where some lis is pending before the Court and does not confer jurisdiction to entertain a matter which was not pending adjudication.

Rasab Khan v. Abdul Ghani 1986 CLC 1400; Sajjad Amjad v. Abdul Hameed PLD 1998 Lah. 474; Nazar Muhammad v. Ali Akbar PLD 1989 Kar. 635; Muhammad Ayub Khan v. Riyazul Hasan 1985 CLC 619; Commerce Bank Limited v. Sarfraz Autos PLD 1976 Kar. 973; Muhammad Ashfaq v. Shaukat Ali PLD 1976 Lah. 15; Commerce Bank Limited v. Sarfraz Autos PLD 1976 Kar. 973; Mian Muhammad Ashfaq v. Lt.-Col. Shaukat All 1975 Law Notes Lah. 725; Ganisons Indus. Ltd. v, Akhiaque Ahmed PLD 1974 Kar. 339; Lai Muhammad v. Niaz Parwara PLD 1971 Pesh. 157; Karamatullah v. Government of West Pakistan PLD 1967 Lah. 171; Bashir Begum v. Abdul Rehman PLD 1963 Lah. 408; Sher Muhammad v. Khuda Bux PLD 1961 Lah. 579; Inayatullah Butt v. Cantonment Board, Rawalpindi PLD 1957 Lah. 583; in re: Subramania Desika AIR 1958 Mad. 284 and Muhammad Usman Khan v. Miraj Dili PLD 1978 Lah. 790 rel.

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

----S. 151---"Ends of justice" and "abuse of the process of Court" contained in S.151, C.P.C.---Connotation---Effect--- Inherent powers contained in S.151 C.P.C. can only be exercised to secure the ends of justice or for the purpose of preventing abuse of the process of Court---. Words "ends of justice" and "abuse of the process of Court" should be construed with due regard to rest of the provisions of Civil Procedure Code, 1908---Main object of S.151 C.P.C. is to prevent Court from being rendered powerless on account of any omission in Civil Procedure Code, 1908, and empower the Court to make necessary orders and no other orders.

Emirates Bank International Ltd. v. Adamjee Industries Limited 1993 CLC 489 rel.

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

----Art. 23---Transfer of Property Act (IV of 1882), S.7---Contract Act (IX of 1872), S.57---Civil Procedure Code (V of 1908), S.151---Right to hold and transfer of property---Inherent powers of High Court---Changing terms and conditions of Indenture of Lease---Land in dispute was leased out to a company by Federal Government for establishing a Fertilizer Plant---Company was liquidated in year, 1982, and land was purchased by respondent being the highest bidder---Auction purchaser in the year 2003, entered into an agreement to sell with some other persons, in respect of a portion of the land in question---Revenue authorities declined to issue No Objection Certificate' for execution of sale deed of leasehold rights of the portion of land intended to be sold by auction purchaser, on the ground that the sale was in violation of the clauses of the Indenture of Lease executed by Federal Government---High Court, on application filed by auction purchaser under S.151 C.P.C. directed the authorities to issue the requisiteNo Objection Certificate'---Plea raised by the authorities was that High Court had no authority to make any amendment in the Indenture of Lease---Validity---Conditional title regarding land in question was conferred upon original lessee and no superior title could have been conferred upon auction purchaser---High Court had no authority to make any amendment, deletion, insertion or addition in Indenture of Lease---Sale certificate in favour of auction purchaser was issued on behalf of Court but it could not violate or change the terms and conditions of Indenture of Lease, without impleading the necessary parties i.e. the President of Pakistan through the concerned Ministry, by whom Indenture of Lease was executed---Liquidation of company did mean that Federal Government was deprived of the land pertaining to it---Auction purchaser and subsequent purchasers could not take benefit of huge amount worth whereof ran into billions by depriving Government of Pakistan without any legal or moral justification---Auction purchaser and subsequent buyers had no legal right whatsoever to distribute the land between them as it was not an ancestral property and the same was subject to the terms and conditions enumerated in Indenture of Lease---Legal provisions were exploited by invoking provisions as contained in S.151 C.P.C.---In the case 'of subsequent purchasers, even provisions of S.7 of Transfer of Property Act, 1882, could not render any assistance as title of auction purchaser was disputed because after three years, land in question should have been reverted to Government of Pakistan because initial purpose i.e. establishing a plant of fertilizer could not be achieved---Auction purchaser could not sell leasehold rights in violation of Indenture of Lease---High Court had no authority whatsoever to pass any order in violation of the terms and conditions as enumerated in Indenture of Lease having no legal authority to get it changed---High Court had no authority to resolve such a controversial issue by exercising its jurisdiction under S.151 C.P.C. and without impleading Government of Pakistan as necessary party---Order passed by High Court was set aside being unlawful---Appeal allowed.

Province of Punjab v. Muhammad Yaqoob 1992 CLC 2065 ref.

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

----Art. 23---Word "property" occurring in Art.23, Constitution---Scope---Property, which is illegal to hold is not property.

Raza Kazim v. District Magistrate, Lahore PLD 1958 Lah. 706; S.M. Transports (P.) Ltd. v. Sankaraswamigal Mutt AIR 1963 SC 864; Rajah of Bobbili v. State of Madras AIR 1952 Mad. 203; AIR 1952 Cl. 184; Iswari Prosad v. N.R. Sen .AIR 1952 Cal. 273 and Nasirabad Properties Ltd. v. Chittagong Development Authority PLD 1966 Dacca 472 rel.

(g) Constitution of Pakistan (1973)---

----Art. 24---Protection to hold property---Principles---Where a person is deprived of his property under the authority of law and according to the provisions of law, such person has no ground for complaint under the Constitution.

Amar Singh v. Custodian, E.P. AIR 1957 SC 599 and Tika Ramji v. State of U.P. AIR 1956 SC 676 rel.

Raja Muhammad Irshad, D.A.-G. and M. Zafar Iqbal, Advocate-on-Record for Appellant.

Sharifuddin Pirzada, Senior Advocate Supreme Court and Raja Qureshi, Advocate Supreme Court for Respondent.

Date of hearing: 6th April, 2006.

2007 S C M R 368

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Ch. Ijaz Ahmed, JJ

SHAFI MUHAMMAD and others----Petitioners

Versus

KHANZADA GUL and others----Respondents

Civil Petition No.341-P of 2003, decided on 14th September, 2006.

(Against the judgment, dated 2-5-2003 passed by the Peshawar High Court. Peshawar passed in Civil Revision No.127 of 2003).

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

----S. 115---Concurrent findings of fact by Courts below---Interference in such findings by High Court in revisional jurisdiction---Scope very limited---Reasons stated.

High Court has very limited jurisdiction to disturb the concurrent findings of fact recorded by the Courts below while exercising power under section 115, C.P.C., unless and until the Courts below had given concurrent findings of fact by misreading or non-reading of the record or in violation of any principle laid by the superior Courts.

N.S. Venkatagiri Ayyangar's case PLD 1949 PC 26 rel.

(b) Pleadings---

----Parties would be bound by their pleadings.

Mst. Murad Begum's case PLD 1974 SC 322 rel.

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

----Art. 185(3)---Petition for leave to appeal---Ground sought to be argued was neither raised in revision petition nor in memorandum of petition before Supreme Court---Effect---Supreme Court in the interest of justice considered such ground.

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

----Art. 185(3)---Concurrent conclusions arrived at by Courts below---Validity---Supreme Court would not, normally, interfere in such conclusions---Preference, as a 'rule, would be given to opinions of Courts below, particularly to opinion of Court of first instance---Reasons stated.

Supreme Court does not normally, interfere in the concurrent conclusions arrived at by the Courts below while exercising power under Article 185(3) of the Constitution, Supreme Court, as a rule, should give due weight and consideration to the opinions of the Courts below and in particular to the opinion of the Court of first instance, which had the advantage of hearing the parties, witnesses and watching their demeanour.

Malik Muhammad Ishaque's case PLD 1977 SC 109; Noor's case PLD 1973 SC 469 and Shah Nawaz's case PLD 1976 SC 767 rel.

M. Kowkab Iqbal, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

2007 S C M R 373

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

MUHAMMAD CHUTTAL----Appellant

Versus

ATTA MUHAMMAD through L.Rs.----Respondents

Civil Appeal No.1276 of 2000, decided on 8th March, 2006.

(On appeal from the judgment, dated 31-5-2000 passed by High Court of Sindh (Bench Larkana) in Civil Revision No.14 of 1998).

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

----O. IX, Rr.8 & 9---Constitution of Pakistan (1973), Art.185(3)---Dismissal of suit for non-prosecution---Dismissal of application for restoration of suit upheld by Appellate Court---Fresh suit regarding same subject matter by successor-in-interest of plaintiff---Trial Court decreed fresh suit, but Appellate Court dismissed same for being barred by O.IX, R.9, C.P.C.---High Court in revision decreed the suit---Validity---In view of conflict of opinion on an important question of law between Courts below, Supreme Court granted leave to appeal to examine defendant's contention and to ensure whether ratio in Juma Khan's case' 1973 SCMR 289 had been correctly applied by High Court.

Black's Law Dictionary Vlth Edition (1990) page 221; Jumma Khan v. Mahmud Khan 1973 SCMR 289 and Fazal Begum v. Municipal Corporation Lahore, 1983 CLC 1643 ref.

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

----S. 11, O.11, R.2, O.IX, Rr.8, 9 & O.XVII, R.2---Dismissal of first suit in default in terms of O.XVII, R.2, C.P.C.---Dismissal of application seeking restoration of first suit---Second suit on basis of recurring cause of action regarding same subject-matter---Maintainability---Plaintiff on dismissal of first suit in default of appearance could not bring fresh suit on same cause of action---Where facts on basis of which. right was claimed by plaintiff were same and infringement thereof by defendant in two suits had arisen out of same transaction, then second suit on basis of same cause of action would not be competent and would be barred by doctrine of res judicata---No fresh cause of action, in circumstances, would accrue in favour of plaintiff on every refusal of his title by defendant---Where cause of action was either distinct or recurring, then dismissal of first suit would not affect second suit---Plaintiff in fresh suit had pleaded that cause of action was recurring, which was a mixed question of law and fact liable to be decided on basis of evidence of parties---Principles.

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

M. Munir Peracha, Advocate Supreme Court for Respondents.

Date of hearing: 8th March, 2006.

2007 S C M R 378

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Ch. Ijaz Ahmed, JJ

NOOR HUSSAIN and others----Appellants

Versus

Mst. HUSSAIN BIBI and others----Respondents

Civil Appeal No.218 of 2003, decided on 20th September, 2006.

(On appeal from the judgment, dated 7-12-2001 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Civil Revision No.636 of 1994).

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

----S. 115 & O.XLI, R.33---Revision---Decision of case by Appellate Court in violation of law laid down by Supreme Court in Madan Gopal's case PLD 1969 SC 617---Effect---Such act of Appellate Court would be termed as material irregularity or illegality within meaning of S.115, C.P.C.

Gouranga Mohan Sikdar's case PLD 1970 SC 158 and Mollah Ejahar Ali's case PLD 1970 SC 173 ref.

Madan Gopal's case PLD 1969 SC 617 and Shaukat Nawaz's case 1988 SCMR 851 rel.

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

---Ss. 39 & 42---Revenue record ---Such record for later year would be preferred.

Mt. Alo and others v. Sher and others AIR 1927 Lah. 607 rel.

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

---Art. 185(3)---Petition for leave to appeal---Concurrent findings of Courts below (High Court and Trial Court)---Validity---While exercising power under Art.185(3) of the Constitution, Supreme Court normally would not interfere in such findings.

Khuda Yar's case PLD 1975 SC 678 rel.

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

S. Qalb-e-Hassan, Advocate Supreme Court for Respondents.

2007 S C M R 383

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and Abdul Hameed Dogar, J

ABDUL AZIZ through L.Rs. and others----Petitioners

Versus

MALIK AMAN----Respondent

Civil Petition No.609 of 2006, decided on 6th September, 2006.

(On appeal from the judgment, dated 23-5-2006 of the Peshawar High Court Abbottabad Bench in Civil Revision No.135 of 2002).

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

----Ss. 6 & 13---Pre-emption suit---Right of pre-emption claimed on basis of Shafi Sharik and Shafi Jar---Talb-i-Muwathibat and Talb-i-Ishhad, performance of---Proof---Pre-emptor on coming to know about sale immediately disclosed his intention to pre-empt suit-land in presence of witnesses---Pre-emptor proved on record such right of pre-emption as. well as factum of sending notice of Talb-i-Ishhad attested by two truthful witnesses---Validity---Pre-emptor could not be non-suited merely on ground that other details of time and place of Talbs and names of witnesses etc., had not been specifically mentioned in plaint---Minor discrepancies of time could not come in way of pre-emptor---Service of registered notice by pre-emptor containing names of two truthful witnesses before whore Talb-i-Ishhad was allegedly made, would amount to substantial compliance of the provisions of law---Suit was decreed in circumstances.

Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 and Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 ref.

Allah Bakhsh and another v. Falak Sher 2004 SCMR 1580 and Abdul Malik v. Muhammad Latif 1999 SCMR 717 rel.

Ch. Imtiaz Ahmad, Senior Advocate Supreme Court and Arshad Ali Ch. Advocate-on-Record for Petitioners

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

Date of hearing: 6th September, 2006.

2007 SCMR 387

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Ch. Ijaz Ahmed, JJ

SAIFUR REHMAN and another----Appellants

Versus

SHER MUHAMMAD through L.Rs.----Respondents

Civil Appeal No.461 of 2002, decided on 18th September, 2006.

(On appeal from the judgment, dated 16-11-2000 passed by the Lahore High Court, Multan Bench, Multan, in R.S.A. No.170 of 1982).

Islamic Law---

----Inheritance---Widow of pre-deceased son of last male owner (her father-in-law)---Not entitled to any share from property left by such owner.

Muhammad Ishque's case PLD 1983 SC 273 and Mst. Bano's case PLD 1965 SC 33 ref.

Abdul Ghafoor's case PLD 1985 SC 407; Ghulam Jannat's case 2003 SCMR 362; Mst. Zeenat Begum's case PLD 1991 SC 427; Walayat's case 2000 Pak. SC Cases 589; Muhammad Shafi's case PLD 1955 FC 102; Rehmat Bibi's case 1966 SC 349; Haider Shah's case 1996 SCMR 901 and Mst. Kafeela Akhtar Begum's case KLR 2000 Revenue Cases 90 rel.

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants.

Muhammad Munir Peracha, Advocate Supreme Court for Respondents.

2007 SCMR 393

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Faqir Muhammad Khokhar and Ch. Ijaz Ahmed, JJ

MUHAMMAD YOUNAS and others----Petitioners

Versus

Mst. PERVEEN alias MANO and others----Respondents

Civil Petitions Nos.2116 and 2355-L of 2005, decided on 13th October, 2006.

(On appeal from the judgment, dated 31-10-2005 of the Lahore High Court, Lahore passed in Writ Petition No.13094 of 2005).

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

----Ss. 6, 7 & 9---Criminal Procedure Code (V of 1898), S.173---Narcotic Substance, recovery of---Accused found to be innocent during investigation--Validity--Competent Court vested with jurisdiction either to accept or not to accept police report recommending discharge of accused or cancellation of case against him---Principles.

The police is required to submit its report of investigation under section 173, Cr.P.C., to the Special Court established under the provisions of sections 45 and 46 of the Control of Narcotic Substances Act, 1997, which may or may not agree with same, after conscious application of judicial mind and consideration of the material placed before it. It is not obligatory for the competent Court to accept police report recommending the discharge or cancellation of the case and may proceed to take cognizance of the offence depending upon the facts and circumstances of each case.

Safdar Ali v. Zafar Iqbal and others 2002 SCMR 63 = PLJ 2002 SC 304; Federation of Pakistan through Secretary, Finance, Islamabad and another v. Malik Mumtaz Hussain and 4 others 1997 SCMR 299 and Muhammad Alain and another v. Additional Secretary to Government of N.-W.F.P. Home and Tribal Affairs Department and 7 others PLD 1987 SC 103 rel.

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

----Ss. 6, 9 & 9(c)---Criminal Procedure Code (V of 1898), S.173---Constitution of Pakistan (1973), Arts.199 & 185(3)---Constitutional petition before High Court--Quashing of F.I.R.---Charas and Opium, recovery of---F.I.R., registration of---Superintendent of Police (Investigation) finding F.I.R. to be false---Quashment of F.I.R. by High Court on basis of ipsi dixit of police---Validity---High Court should have directed police to submit challan one way or the other before Special Court---High Court had passed .impugned order without satisfying as to relevancy or sufficiency of .investigation material justifying quashment of F.I.R.---Supreme Court set aside impugned order while directing Investigating Agency to place collected material before Special Court which would he at liberty to act in accordance with law.

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

----Ss. 21 & 22--Criminal Procedure Code (V of 1898), S.173---Arrest of accused and/or seizure of narcotics in violation of provisions of Ss.21 & 22 of Control of Narcotic Substances Act, 1997---Effect---Guilt or innocence of accused would not depend on question of competence or otherwise of Police Officer to investigate offence---Trial of accused would not be vitiated merely for the reasons that the case had been investigated by an officer not authorized to do so--Court would determine guilt or innocence of accused only on basis of evidence produced irrespective of the manner in which it was brought before the Court--Purpose of enacting such provisions stated.

Under sections 21 and 22 of the Control of Narcotic Substances Act, 1997, only an officer of the rank of Sub-Inspector or equivalent or above may exercise the powers of arrest and seizure of narcotics. But this is not an absolute rule. There may be cases of extreme urgency requiring prompt action, where an accused is caught with narcotics in his possession by a Police Officer of a lower rank. Can it be said that such Police Officer should just let him go with the narcotics? The answer would certainly be in the emphatic "No". The guilt or innocence of an accused does not depend on the question of competence or otherwise of a Police Officer to investigate the offence. A trial of an accused is not vitiated merely on the ground that the case has been investigated by an officer who is not authorized to do so unless a contrary intention appears from the language of a statute. The competent Court would proceed to determine the guilt or innocence of an accused on the basis of the evidence produced before it irrespective of the manner in which it is brought before it.

In a proper case, a Police Officer, if guilty of deliberate usurpation of power and violation of a statute, may render himself liable to disciplinary or penal action or both in accordance with law. The purpose of enacting protective provisions of sections 21 and 22 of the Act seems to he that normally the cases of narcotics being of serious nature should be handled by more responsible Police Officers.

M. Abdul Latif v. G.M. Paracha and others 1981 SCMR 1101; State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408; The Crown v. Mehar Ali PLD 1956 FC 106; M.S.K, Ibrat v. The Commander-in-Chief, Royal Pakistan Navy and others PLD 1956 SC 264; Ahmad Khan v. Rasul Shah and others PLD 1975 SC 66; Muhammad and others v. The State 1984 SCMR 954 and The State v. Sohail Ahmed and 4 others PLD 1990 FSC 29 rel.

Ch. Talib Hussain, Advocate-on-Record for Petitioners (in C.P. No.2116-L of 2005 and for Respondent No.3 in C.P. No.2355-L of 2005).

Muhammad Akbar Tarar, Additional Advocate-General, Punjab for the State (in C.P. No.2355-L of 2005).

Rao Muhammad Yusuf Khan, Advocate-on-Record (In C.P. No.2355-L of 2005 and Respondents Nos.2 and 3 in C.P. No.2116-L of 2005).

Sh. Najamul Hassan, Advocate Supreme Court and Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Respondent No.1 (in both Petitions).

Date of hearing: 13th October, 2006.

2007 S C M R 399

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Ghulam Rabbani, JJ

MAQSOOD AHMAD and others----Appellants

Versus

MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE and others----Respondents

Civil Appeals No.1202 to 1205 of 2003, decided on 21st September, 2006.

(On appeal from the judgment, dated 25-1-2002 passed by the Lahore High Court, Lahore in Writ Petitions Nos.4425, 4426, 4428 and 4427 of 1996 respectively).

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

----O. XX, R.14(1)(a)---Decree in pre-emption suit---Deposit of pre-emption money--Duty of Trial Court to specify a day on or before which pre-emption money would be paid, and if such money and costs, if any, were not paid, then suit would stand dismissed with costs---Appellate Court/Authority in appeal against pre-emption decree, if suspended order of deposit of such money passed by Trial Court, would be bound to record fresh similar order, if ultimately appeal was dismissed---Principles.

While passing a pre-emption decree, the Court is bound under Order XX, rule 14, C.P.C., to specify a day on or before which the purchase money shall be so paid and that, if such money and the costs, if any, are not so paid, then the suit shall stand dismissed with costs.

Once Appellate Court/Authority suspends the order of deposit of pre-emption money passed by Trial Court, it is bound to pass similar order, if ultimately the appeal is dismissed. The reason is obvious, because the order of Trial Court remains suspended and almost withdrawn. By the time the appeal stands dismissed, the period fixed by trial Court would have expired long ago.

(b) Act of Court---

----Party could not be condemned on account of an act of Court.

Bhai Khan's case 1980 SCMR 42 ref.

Mian Asrar-ul-Haq Advocate Supreme Court for Appellants.

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.3.

M. Iqbal, D.D.O.R. Wazirabad for Respondent No.2.

Date of hearing: 21st September, 2006.

2007 SCMR 401

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Ghulam Rabbani, JJ

NAWAB DIN through L.Rs.----Appellants

Versus

FAQIR SAIN----Respondent

Civil Appeal No.28 of 2003, decided on 26th September, 2006.

(On appeal from the judgment, dated 4-12-2002 passed by the Lahore High Court Lahore in Civil Revision No.898 of 1998).

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

----S. 13---Talb-i-Muwathibat, performance of---Necessity of proof---Such Talb was a pre-requisite personal act of pre-emptor to activate his right of pre-emption---Defendant could not waive such Talb nor his omission to raise objection in this regard in written statement would extend any benefit to pre-emptor---Proof of such Talb would be necessary even if suit for pre-emption was not contested by defendant or proceedings were ex parte---Principles.

Talb-i-Muwathibat is a personal act of prospective pre-emptor, whereby his actual right is activated. It is to be exercised at a time when no suit is yet filed, no notice of Talb-i-Ishhad is served, no Khasomat is preferred and when no defendant is in picture. Thus, the act of Talb-i-Muwathibat being pro-requisite to activate the very right of pre-emption and being subjective and spontaneous of the pre-emptor, has little to be waived by the defendant. The proof thereof is, therefore, necessary even if some suit for pre-emption is not contested by the defendant and even if the proceedings are ex parte. Any omission in this behalf, in the written statement, does not extend any benefit to the plaintiff/pre-emptor.

The performance of Talb-i-Muwathibat is restricted to a specific period of time, that is, before dispersal of a Majlis, it remains a matter of limitation by itself and further limits the performance of Talb­i-Ishhad within 14 days therefrom. The plaintiff, therefore, has to prove also as to what Majlis it was that he performed Talb-i-Muwathibat in.

Talb-i-Ishhad is nothing but creating evidence about the Talb concerned.

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

----S. 13---Talb-i-Muwathibat and Talb-i-Ishhad, performance of---Proof---Neither in plaint nor in notice of Talb-i-Ishhad was mentioned as to who informed pre-emptor about sale for first time---Majlis of performance of Talb-i-Muwathibat not mentioned in plaint---Pre-emptor in evidence introduced informer alleging him to have died---Validity---No benefit could be drawn from such evidence of pre-emptor---Strong inferences would be that alleged informer, if alive, was not an informer, that he was not present in Majlis; and that no Talb was performed in his presence---Pre-emptor's suit was dismissed in circumstances.

Altaf Elahi Sheikh, Advocate Supreme Court for Appellants.

Rai Muhammad Nawaz Kharal, Advocate Supreme Court for Respondent.

Date of hearing: 26th September, 2006.

2007 S C M R 404

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

FAROOQ MENGAL----Petitioner

Versus

THE STATE through A.-G. Sindh, Karachi----Respondent

Criminal Petition No.87-K of 2005, decided on 2nd March, 2006.

(On appeal from the judgment of High Court of Sindh, dated 13-12-2005, passed in Criminal Bail Application No.S-811 of 2005).

Criminal Procedure Code (V of 1898)---

----S. 497---Constitution of Pakistan (1973), Art.185(3)---Bail, refusal of---Retracted judicial confession of co-accused---Delay in conclusion of trial caused by accused---Appreciation of evidence at bail stage---Scope---Allegation against accused/petitioner was that he got his wife murdered by co-accused---Co-accused recorded his judicial confession before Magistrate to the effect that he had committed murder of deceased at the instance of accused/petitioner who suspected illicit relations of his wife with her ex-husband---Trial Court as well as High Court dismissed bail petition filed by accused---Accused contended that occurrence was unseen and except retracted judicial confession of co-accused, there was no direct or circumstantial evidence to connect accused with crime; that it was yet to be determined whether occurrence was homicidal death or not; that questions relating to true character of confession of co-accused whether inculpatory or exculpatory, and its admissibility against its maker were yet to be ascertained in the context of their evidentiary value and that case against accused squarely fell within the ambit of subsection (2) of S.497, Cr.P.C. hence he was entitled to concession of bail---Validity---Questions as to retracted judicial or extra-judicial confession whether inculpatory or exculpatory, truthfulness or otherwise of judicial confession, absence of evidence against accused, possibility or impossibility of ultimate conviction of accused on the basis of such inadmissible evidence, was not to be appreciated at bail stage---Question relating to intrinsic value of retracted judicial confession as to appraisal of evidence was not to be addressed at bail stage---Retracted judicial. confession, if found truthful and confidence inspiring, could be relied upon on the basis of tentative assessment of prosecution evidence and it was not possible to doubt credibility of judicial statement at bail stage---No sufficient grounds existed to believe that accused was not involved in crime or that case against him was of further inquiry---Delay in conclusion of trial was caused by accused, therefore, he was to face consequence of delay---Bail petition was dismissed.

Azizullah Shaikh, Senior Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Petitioner.

Muhammad Ilyas Khan, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for the Complainant.

Iqtedar Ali Hashmi, Senior Advocate Supreme Court/Special Public Prosecutor for the State.

Date of hearing: 2nd March, 2006.

2007 SCMR 410

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Muhammad Nawaz Abbasi and Saiyed Saeed Ashhad, JJ

Miss SHAZIA BATOOL----Appellant

Versus

GOVERNMENT OF BALOCHISTAN and others----Respondents

Civil Appeal No.436 of 2004, decided on 3rd November, 2006.

(On appeal from the judgment, dated 2-10-2002 of the High Court of Balochistan, Quetta passed in C.P. No.137 of 2002).

Per Saiyed Saeed Ashhad, J.; Sardar Muhammad Raza Khan, J. agreeing [Majority view]---

(a) Prospectus of Bolan Medical College, year 2000-2001---

----Paras. 3, 4, 7, 10 & 23---Constitution of Pakistan (1973), Arts.2-A, 22, 25, 37 (c) & 185 (3)---Leave to appeal was granted by Supreme Court to consider; whether incorporation of clauses 3, 4, 7, 10, 23 and introduction of classification between candidates of Quetta Urban and Quetta Rural in Prospectus of Bolan Medical College, Quetta were discriminatory, violative of provisions of Arts.2-A, 22, 25 and 37(c) of the Constitution and law laid down by Supreme Court; and whether it was necessary for candidate to implead in constitutional petition all other candidates who had secured lesser marks than him and were admitted to M.B.,B.S. First Professional Examination course, on quota basis.

Mst. Attiya Bibi Khan v. Federation of Pakistan through Secretary, Education (Ministry of Education), Civil Secretariat, Islamabad and others 2001 SCMR 1161; Shireen Raza and others v. Federation of Pakistan through Secretary, Ministry of Education, Islamabad and others 2002 SCMR 1218 and Abdul Baqi and others v. Muhammad Akram and others PLD 2003 SC 163 rel.

(b) Prospectus of Bolan Medical College (2000-2001)---

----Paras. 3, 4, 7, 10 & 23---Constitution of Pakistan (1973) Arts.2-A, 22, 25 & 37(c)---Educational institution---Admission to medical college---District-wise quota---Grievance of candidate was that district wise quota and reservation of seats for certain classes of students as mentioned in paras.3, 4, 7, 10 and 23 of Prospectus or Bolan Medical College (2000-2001) was violative of the provisions of the Constitution---Validity---Distribution of merit seats amongst districts/agencies and classification on the basis of disability, reciprocal basis, reservation for foreign nationals and for backward and underdeveloped regions would be deemed to have been done with a view to provide better and equal opportunities to the students of backward and underdeveloped areas of districts / agencies and regions---No deserving student was deprived under paras. 3 and 4 of Prospectus of Bolan Medical College (2000-2001), from being admitted to medical college, thus those paras were not repugnant/violative of Arts.2-A, 22, 25 & 37(c) of the Constitution---Minimum qualification for a candidate's admission to M.B.,B.S./B.D.S. classes, under para. 23 of Prospectus or Bolan Medical College (2000-2001) was Intermediate Science (pre-medical) examination from Board of Intermediate and Secondary Education, Balochistan, Quetta or any recognized Board or University and such para was also not repugnant to or violative of Arts.2-A, 22, 25 or the Constitution---High Court had rightly dismissed Constitutional petition of the candidate and no ground was made out for interference with the judgment---Appeal was dismissed.

Mst. Attiya Bibi Khan v. Federation of Pakistan through Secretary, Education (Ministry of Education), Civil Secretariat, Islamabad and others 2001 SCMR 1161; Shireen Raza and others v. Federation of Pakistan through Secretary, Ministry of Education, Islamabad and others 2002 SCMR 1218; Abdul Baqi and others v. Muhammad Akram and others PLD 2003 SC 163 and The Chairman, Selection Committee, Bolan Medical College, Quetta and others v. Miss Safia Hameed and others 1979 SCMR 529 rel.

Per Muhammad Nawaz Abbasi J.---

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

----Art. 25---Reasonable classification---Necessary ingredients Principle of equity is subject to reasonable classification, Which means that it should be based on intelligible differentia, which distinguishes persons or things that are grouped together from those which ha v been left out and that the differentia must have rational nexus to the object sought to be achieved by such classification.

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

---Art. 25---Equal protection of law---Principles---Concept of equal protection of law envisages that a person or class of persons should not be denied the rights, which are enjoyed by other persons in the same situation.

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

---Art. 25---Equality of citizens---Principle of reasonable classification---Applicability---Reasonable classification must be based on an intelligible differentia, which distinguishes individuals or one group of persons from other group in a particular set of circumstances---Reasonable classification must be found on reasonable basis and must have rational nexus to the object sought to be achieved by such classification---General presumption is of constitutionality of the principle regarding reasonable classification but no such presumption can be carried if there is nothing on the face of law and surrounding circumstances on the basis of which reasonableness of classification can be regarded.

Per Muhammad Nawaz Abbasi, J. Contra [Minority view] ---

(f) Prospectus of Bolan Medical College (2000-2001)---

---Paras. 3, 4, 7, 10 & 23---Constitution of Pakistan (1973), Arts. 2-A, 22, 25 & 37(c)---Educational institution---Admission to medical college---District-wise quota---Intelligible differentia, principle of---Applicability---Grievance of candidate was that District-wise quota and reservation of seats for certain classes of students as mentioned in paras.3, 4, 7, 10 and 23 of Prospectus of Bolan Medical College (2000-2001) was violative of the provisions of the Constitution---Validity---Classification on the basis of intelligible differentia must be reasonable and must have nexus with the object sought to be achieved---Reservation of seats in Medical Colleges for every district without any justification in law was in disregard to the merit policy, which was neither in consonance with the natural justice as ordained by the Holy Qur'an and Sunnah nor in the spirit of Art.25 of the Constitution---Prospectus of Bolan Medical College (2000-2001) provided a specific quota allocated for each district in preference to open competition of seats to the ratio of 70% and 30% without any distinction and District-wise distribution---District-wise allocation of seats would only be justified if every district of Province of Balochistan would have been declared and notified by Government as backward area---Division of District Quetta into rural and urban and separate allocation of seats for Quetta rural and Quetta urban was without any justification---Allocation of seats for each District of Balochistan might have some political or other reason but it was not based on the principle of reasonable classification---Fixation of District-wise quota in the Prospectus had neither any nexus with the actual state of affairs nor was in the spirit of Arts.22(4) and 25 of the Constitution---General policy of allocating seats for each district of the Province was against the law laid down by Supreme Court and also being not based on intelligible differentia, was in conflict with the principle of equality as well as the rule of open merit in consequence of which students who had secured the highest marks in the open merit list were deprived of their legitimate rights--Candidate was allowed to get admission in next session on open merit---Appeal was allowed.

Mst. Attiya Bibi Khan v. Federation of Pakistan through Secretary, Education (Ministry of Education), Civil Secretariat, Islamabad and others 2001 SCMR 1161; Shireen Raza and others v. Federation of Pakistan through Secretary, Ministry of Education, Islamabad and others 2002 SCMR 1218 and Abdul Baqi and others v. Muhammad Akram and others PLD 2003 SC 163 rel.

Appellant in person.

Amanullah Tareen, Additional Advocate-General, Balochistan, Quetta, Kamran Murtaza, Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record Manzoor Hussain, Additional Secretary, and Abdul Malik, Principal, Bolan Medical College for Respondents.

Date of hearing: 6th May, 2005.

2007 SCMR 433

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Muhammad Nawaz Abbasi and Saiyed Saeed Ashhad, JJ

G.R. SYED----Petitioner

Versus

MUHAMMAD AFZAL----Respondent

Civil Petition No.982 of 2006, decided on 10th November, 2006.

(On appeal from the judgment/order, dated 7-9-2006 passed by Lahore High Court, Lahore in R.F.A. No.269 of 2006).

Civil Procedure Code (V of 1908)---

---O. XII, R.6---Constitution of Pakistan (1973), Art.185(3)---Judgment on admissions Concurrent findings of fact by the Courts below---Plaintiff filed suit for specific performance of agreement to sell against defendant---Suit was decreed by Trial Court under O.XII, R.6, C.P.C. on the ground that defendant had admitted the facts mentioned in the plaint---Judgment and decree passed by Trial Court were maintained by High Court---Plea raised by defendant was that once Trial Court had framed issues, it could not have decreed the suit on the basis of admissions---Validity---Court was empowered under O.XII, R.6, C.P.C. to pass a judgment on the basis of admissions of facts made by the parties to their pleadings, at any stage of proceedings---High Court concluded that as admissions of defendant were specific, clear, unambiguous, categorical and definite, therefore, Trial Court had rightly granted decree under O.XII, R.6, C.P.C.---Supreme Court declined to interfere with the judgment passed by High Court---Leave to appeal refused.

Amir Bibi v. Muhammad Khurshid and others 2003 SCMR 1261 fol.

Gulzarin Kiani, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Nemo for Respondent.

2007 S C M R 437

[Shariat Appellate Jurisdiction]

Present: Justice Javed Iqbal, Chairman, Justices Sardar Muhammad Raza Khan Ch. Ijaz Ahmed, Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullundhari, Members

MUHAMMAD ZUBAIR----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.8(S) of 2005, decided on 14th November, 2006.

(On appeal from the judgment, dated 29-1-2005 passed by the Federal Shariat Court, Lahore, in Jail Criminal Appeal No.224/I of 2003 and Criminal Suo Motu No.4/I of 2004).

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

----Arts. 203-F(2-B) & 185(3)---Constitutional jurisdiction of Supreme Court---Concurrent findings of fact by the Courts below---Interference by Supreme Court---Principles---Normally, Supreme Court does not interfere with findings of fact arrived at by the Courts below, while exercising constitutional jurisdiction after its satisfaction that findings of the Courts below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning appreciation of evidence---If finding is on the face of it against evidence or so patently improbable, or perverse that to accept it could amount to perpetuating a grave miscarriage of justice, or if there has been any misapplication of principle relating to appreciation of evidence, or finally, if finding could be demonstrated to be physically impossible, then it is the duty and obligation of Supreme Court to interfere in concurrent conclusions arrived at by the Courts below.

(b) Criminal trial---

---Delay in registration of F.I.R.---Effect---Generally delay in lodging F.I.R. cannot in all cases lead to the inference that the cases set up in F.I.R. is necessarily true or false, however it is relevant circumstance to be considered.

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

---S. 10---Qanun-e-Shahadat (10 of 1984), Art.129 (g)---Withholding of evidence---Presumption---No report of Chemical Examiner regarding swabs of victim was available, in spite of the fact that according to prosecution, the parcel was sent to Chemical Examiner---Effect---Such piece of evidence having been withheld by prosecution, therefore, adverse inference could be taken against the prosecution.

Abdul Khaliq v. The State 1995 SCMR 1412 and Abdul Waheed v. The State 1995 SCMR 1498 rel.

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

----Ss. 10, 11 & 16---Penal Code (XLV of 1860), S.338-F---Reappraisal of evidence---Unexplained delay in F.I.R.---Benefit of doubt---Acquittal of co-accused---Accused along with two co-accused was charged with offence of abduction and committing Zina-bil-Jabr with the victim---Trial Court convicted the accused only under S.16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and sentenced him to seven years of imprisonment, whereas both the co-accused were acquitted---Conviction and sentence awarded by Trial Court was maintained by Federal Shariat Court---Validity---If contents of F.I.R., statements of complainant and that of prosecution witness and victim were put in a juxtaposition, then their statements were not consistent with one another on material points---Trial Court had disbelieved the statement of prosecution including victim while acquitting two co-accused, therefore, it was necessary for Federal Shariat Court to re-examine the evidence with due care and caution to maintain the conviction of accused but Federal Shariat Court failed to examine the evidence---Person making contradictory statement could not be held worthy of credence---Accused was convicted under the provision of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, wherein it was the duty and obligation of the Courts to give reasons for awarding conviction under S.338-F, P.P.C.---Reasons for conviction were fancy and a result of misreading and non-reading of record---Supreme Court converted petition for leave to appeal into appeal and set aside the conviction and sentence awarded to accused by the Courts below---Appeal was allowed.

Aminullah's case PLD 1982 SC 429 and Muhammad Shafique Ahmad's case PLD 1981 SC 472 rel.

F.K. Butt, Advocate Supreme Court for Petitioner.

Ch. Munir Sadiq Advocate Supreme Court for the State on Court call.

2007 SCMR 443

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Syed Jamshed Ali, JJ

MINISTRY OF INTERIOR AND NARCOTICS CONTROL, INTERIOR DIVISION, GOVERNMENT OF PAKISTAN, ISLAMABAD and another----Petitioners

Versus

OSMAN ALI SAAD ELDIN----Respondent

Civil Petition No.2430 of 2004, decided on 1st November, 2006.

(Against the judgment, dated 28-7-2004 passed by Lahore High Court, Rawalpindi Bench Rawalpindi in I.C.A. No.164 of 2004).

Foreigners Act (XXXI of 1946)---

----S. 3---Foreigners Order 1951, Art.3(3)---Constitution of Pakistan (1973), Art.185(3)---Stay of foreigner in Pakistan---Extension---Right or privilege of a foreigner---Scope---Respondent being a foreigner was denied extension in his visa, which was assailed before High Court in Constitutional jurisdiction---High Court dismissed the petition, but Division Bench of High Court allowed intra-court appeal---Plea raised by Authorities was that it was a privilege and not the right of a foreigner to be enforced through constitutional petition and it way, in the absolute domain and discretion of Federal Government to permit entry or refuse it within the parameters of' law---Leave to appeal was granted by Supreme Court to consider the plea raised by the Authorities.

Wang Lilly v. Ministry of Interior Islamabad and other PLJ 1997 Lah. 1782; Jean Charles Groosen v. State of Pakistan through the Secretary, Ministry of Interior, Government of Pakistan, Islamabad PLD 1980 Pesh. 275 and Muhammad Ali and another v. Government of Sindh through Chief Secretary and 2 others 1986 CLC 1123 ref.

Nasir Saeed Sheikh, D.A.-G. for Petitioner.

Dr. Babar Awan, Advocate Supreme Court for Respondent No.1.

2007 S C M R 445

[Shariat Appellate Jurisdiction]

Present: Justice Javed Iqbal, Chairman, Justices Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed, Dr. Allama Khalid Mehmood and Dr. Rashid Ahmed Jullundhari, Members

BASHIR AHMED and another----Appellants

Versus

FAYYAZ AHMED and others----Respondents

Criminal Appeal No.10(S) and along with Jail Petition No.94(S) of 2004, decided on 7th November, 2006.

(On appeal from the judgment, dated 19-1-2004 passed by the Federal Shariat Court, in Jail Criminal Appeal No.286/I of 2003).

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

----S. 10(2) & (3)---Constitution of Pakistan (1973), Art.203-F(3)---Leave to appeal was granted by Supreme Court to consider legality of sentence reduced by Federal Shariat Court.

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

----S. 10(2) & (3)---Reappraisal of evidence---Zina-bil-Raza---Reduction in sentence---Trial Court convicted the accused under S.10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and sentenced him to 25 years of imprisonment---Federal Shariat Court converted conviction of the accused under S.10 (2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and reduced the sentence to 5 years of imprisonment---Validity---Federal Shariat Court converted the offence from S.10 (3) to S.10 (2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, after judicial application of mind and after re-appraisal of evidence had come to the conclusion that victim attained puberty and did not raise hue and cry---Statement of doctor who had examined the victim, clearly showed that her hymen was found to be old ruptured---Federal Shariat Court was justified to convict the accused under S.10 (2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---No illegality or material irregularity having been found in the conclusion arrived at by Federal Shariat Court in its judgment, appeal was dismissed by the Supreme Court.

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

----S. 423-Appellate Court---Alteration of conviction---Principles---Powers of appellate Court are very wide under S.423, Cr.P.C. but are subject to the condition that altered conviction should not be such which could not have been recorded by Trial Court.

Malik Abdul Haq, Advocate Supreme Court for Appellant (in Criminal Appeal No.10(S) of 2004).

Arshad Ali Chaudhry, Advocate Supreme Court for Petitioner (in Jail Petition No.94(S) of 2004).

Arshad Ali Chaudhry, Advocate Supreme Court (In Criminal Appeal No.10(S) of 2004).

Ch. Munir Sadiq, Advocate Supreme Court for the State.

2007 S C M R 449

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

IFTIKHAR AHMAD----Petitioner

Versus

Mst. JEHAN ARA and 3 others----Respondents

Civil Petition No.359-P of 2006, decided on 14th November, 2006.

(On appeal from the judgment, dated 8-3-2006 of the Peshawar High Court, in Writ Petition No.227 of 2006).

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

----S. 5---Limitation Act (IX of 1908), S.5---Constitution of Pakistan (1973), Art. 185 (3)---Ex parte decree, setting aside of---Delay of one and a half years---Non-filing of application for condonation of delay---Suit for maintenance and recovery of dower was decreed ex parte in favour of wife---Husband sought setting aside of the decree after one and a half years of passing of such decree, which was allowed by Family Court but Lower Appellate Court maintained the ex park decree---Order passed by Lower Appellate Court was maintained by High Court---Plea raised by husband was that he was not properly served with the process issued by Court---Validity---Held, it was after one and a half year, that the husband filed application for setting aside ex parte decree before Family Court, without mentioning any valid and cogent ground for not filing the same well in time---Even application for condonation of delay was not filed---Address given by husband in his application, was the same as mentioned in the plaint on which initially Family Court sent summons through `Registered Acknowledgement Due'---Family Court adopted all legal modes for effecting service of husband but neither he nor anyone else on his behalf attended the Court---Family Court after publication in the newspaper, was justified to pass ex parte order against husband---Husband was supposed to file application for setting aside ex parte decree within stipulated period of limitation but he did not file the same within time but after a delay of one and a half years---Parties were first cousins, therefore, being the family member, husband had the full knowledge of the case---No reason to believe that husband did not know about the suit existed---No legal infirmity in the judgment of High Court, which was neither slipshod nor arbitrary having been found---Leave to appeal was refused by the Supreme Court.

Haji Muhammad Zahir Shah, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2007 S C M R 452

[Shariat Appellate jurisdiction]

Present: Justice Javed Iqbal, Chairman, Justices Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed, Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullundhari, Members

AMIR MUHAMMAD----Petitioner.

Versus

THE STATE----Respondent

Jail Petition No.62(S) of 2003, decided on 10th November, 2006.

(On appeal from the judgment, dated 25-11-2003 of the Federal Shariat Court, Islamabad passed in Criminal Appeal No.7/L of 2002).

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

----Ss. 10(2)(3), 11 & 16---Reappraisal of evidence---Sentence, reduction in---Zina-bil-Raza---Detention for the purpose of intercourse---Accused was alleged to have abducted the victim, took her to different places and committed Zina-bil-Jabr with her for more than 30 days---Journey to which the couple resorted had been a long way to go; they must have lived at different places and must have come across hundreds of people but the victim did not raise hue .and cry---Such was a strong indication of the fact that accused never abducted her and whole story was concocted in order to bring the offence within the mischief of S.11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Medico-legal report of the victim, showed that she was not at all innocent as the prosecution claimed---Age of victim on medico-legal report seemed to have been tampered with because while in witness box, the lady doctor failed to make an absolute conclusion, which showed attempt of prosecution to conceal real age of the girl, which seemed to have been sixteen or above---Victim, in circumstances, was a consenting party to the act of sexual intercourse---Offence committed thus, did not fall under S.10(3) but fell under S.10(2) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Accused had taken away a woman with intent to have illicit intercourse with her and had concealed and detained her for the purpose of intercourse, which was sufficiently proved---Offence, therefore, fell under S.16 and not under S.11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, as the victim was kept for more than thirty days during which accused exploited her flesh---Supreme Court converted petition for leave to appeal into appeal and offences under Ss.10(3) and 11 were modified to Ss.10(2) & 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and sentences were also reduced to ten years and seven years, respectively---Appeal was partially allowed.

Tariq Bilal, Advocate Supreme Court for Petitioner.

Inayatullah Niazi, Additional Prosecutor-General, Punjab for the State.

Date of hearing: 10th November, 2006.

2007 S C M R 455

[Supreme Court of Pakistan]

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

RANJHA----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.190 of 2005, decided on 4th May, 2006.

(On appeal from the judgment of High Court of Balochistan, Sibbi Bench, dated 15-6-2005 passed in A.T.A. Appeal No.(S)7 of 2004).

Penal Code (XLV of 1860)---

----S. 302(b)/34---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Constitution of Pakistan (1973), Art.185(3)---Re-appraisal of evidence---Multiple murder---Quantum of sentence---Concurrent findings of guilt by the courts below---Accused along with two co-accused was charged with committing murder of four persons---Trial Court after completion of trial, convicted and sentenced the accused for death, penalty, while his co-accused were acquitted---Conviction and sentence awarded by Trial Court was maintained by High Court---Plea raised by accused was that his case was at par with his co-accused and death penalty could not be awarded to him-Validity-Substitution was a rare phenomenon and except complainant, who allegedly committed murder of brother of accused, remaining prosecution witnesses had no previous history of any enmity, grudge or malice against him to suggest that they had a motive for false implication of accused---Identity of accused in daylight occurrence was free from any doubt---Ocular testimony of independent witnesses duly supported by medical evidence, recovery of empties from the spot, post mortem reports of two deceased and prompt lodging of F.I.R. without any deliberation and exaggeration as well as the attending circumstances was found truthful and confidence-inspiring---Minor discrepancies and contradictions pointed out in statements of witnesses being immaterial was of no significance---Charge against accused stood proved beyond any reasonable doubt through direct evidence furnished by natural and independent witnesses---No legal and factual infirmity in the findings of two Courts regarding guilt of accused having been found which called for interference---No mitigating or extenuating circumstances for lesser sentence being present, conviction and sentence of death penalty was maintained by Supreme Court---Leave to appeal was refused.

Amanullah Khan, Advocate Supreme Court for Petitioner.

Raja Abdul Ghafoor, Advocate Supreme Court for the State.

Date of hearing: 4th May, 2006.

2007 S C M R 459

[Supreme Court of Pakistan]

Present: Javed Iqbal and Nasir-ul-Mulk, JJ

PROVINCE OF THE PUNJAB through Secretary Settlement and Rehabilitation Department, Lahore----Appellants

Versus

AKHTAR ALI KHAN and others----Respondents

Civil Appeals Nos.1587 and 1588 of 2001, decided on 17th October, 2006.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 14-2-2000 passed in Writ Petition No.214-R of 1996 and Writ Petition No.200-R of 1997).

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

----S. 10---Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975), S.9---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), S.2---Allotment of evacuee trust property---Settlement Authorities, jurisdiction of---First application for allotment was filed by respondent in year, 1968 followed by another application in year, 1971---Finally land in question was allotted to respondent on his application filed in year, 1992---Land allotted to respondent was an evacuee trust property---Plea raised by Authorities was that no property was available with Settlement Authorities for allotment and property in question was an evacuee trust property, which could not have been allotted to respondent by Settlement Authorities---Validity---No land was available for allotment and hence question of any allotment did not arise---High Court failed to examine status of property in question, which being evacuee trust property, could not have been allotted in favour of respondent---Unfettered powers had not been conferred upon any functionary of Government to make such allotment in accordance with their own whims and wishes but it was always subject to law---No proceedings were pending with regard to land in question before target date i.e. 1-7-1974, as stipulated in Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 and in order to make out a case, two different applications were filed on 2-10-1968 and 22-12-1971 which were neither entertained by competent authority nor there was any endorsement or verification by Settlement Department that such applications were ever processed---Allotment had been made on the basis of unauthentic record with the connivance of Settlement Department---Original record of Permanent Transfer Deed was found missing but a file having two applications dated 2-10-1968 and 22-12-1971 was available, copies whereof were issued by Settlement Department to respondent .enabling him to avail target date i.e. 1-7-1974---Property in question being evacuee trust property could not have been allotted by Chief Settlement Commissioner, which could have only been sold under Reservation Scheme and no payment whatsoever was made against it--Property in question being evacuee trust property, could have neither been allotted nor transferred and therefore, question of alternate allotment in lieu thereof did not arise---Settlement Authorities and Notified Officer were not competent to make such allotment, which powers were vested with Chairman Evacuee Trust Board pursuant to relevant provisions as enumerated in Evacuee Trust Property (Management and Disposal) Act, 1975---Judgment passed by High Court was set aside-Appeal allowed.

Evacuee Trust Property v. Mst. Zakia Begum 1992 SCMR 1313; Faiz Ahmed v. Settlement Commissioner Lands 198.5 CLC 974; Muhammad Yaqoob Khan v. Member, Board of Revenue 1984 SCMR 940; Noor Muhammad v. Muhammad Iqbal Khan 1985 CLC 1280; Muhammad Sadiq v. Anver Majeed 1989 PCr.LJ 1223; Ata Muhammad v. Zubair Mahmood Khan 1980 CLC 446; Rashda Perveen v. Deputy Settlement Commissioner PLD 1982 Lah. 250; Nasima Begum v. Settlement and Rehabilitation Commissioner 1982 SCMR 913; Jan Muhammad Alvi v. Assistant Registrar 1983 CLC 1714; Nazir Ahmed Khan v. Muhammad Yasin 1983 CLC 2268; Wajdad v. Mir Muhammad Baloch PLD 1982 Quetta 41; Settlement Authority v. Akhtar Sultana PLD 1976 SC 410; Mohsin Khan v. Chief Settlement commissioner 1969 SCMR 306; Dawood Yahama Ltd. v. Government of Balochistan PLD 1986 Quetta 148; Zeenat Nisa v. Settlement Commission PLD 1976 Kar. 595 and Muhammad Ramzan v. Member (Revenue) C.S. 1997 SCMR 1635 ref.

(b) Void order---

----Implementation of void orders---Scope---Government not bound to implement void orders, which are erroneous, coram non judice and without jurisdiction and passed on the basis of forged, false, fictitious and fabricated documents.

(c) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)---

----S. 10---Allotment---Re-examination---Scope---Question of allotment can be re-examined subject to sufficient lawful justification especially in cases of fraud and cheating.

Ch. Mushtaq Masood, Senior Advocate Supreme Court for Appellants (in both cases).

Najamul Hassan Kazmi, Advocate Supreme Court for Respondent No. 1 (in both cases).

Respondent No.2: Ex parte (in both cases).

Mian Qamar-uz-Zaman, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.3 (in C.A. No.1588 of 2001).

Ihsanul Haq Chaudhry, Advocate Supreme Court for (Respondents Nos.4-6 (in C.A. No.1587 of 2001) and for Respondents Nos.5-7 (in C.A. No.1588 of 2001).

Date of hearing: 9th March, 2006.

2007 S C M R 473

[Shariat Appellate Jurisdiction]

Present: Justice Javed Iqbal, Chairman, Justices Sardar Muhammad Raza Khan Ch. Ijaz Ahmed, Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullundhari, Members

MUSHTAQ AHMED and another----Petitioners

Versus

THE STATE----Respondent

Jail Petition No.34(S) of 2004, decided on 6th November, 2006.

(On appeal from the judgment, dated 2-12-2003 passed by the Federal Shariat Court, Islamabad, in Jail Criminal Appeal No.157/I of 2002 and Criminal Appeal No.176/I of 2002).

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

----S. 10---Evidence---Rape---Statement of victim---Value---Mere statement of victim in a rape case was sufficient to connect accused with commission of offence, if the statement of victim inspires confidence.

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

----S. 10(3)---Penal Code (XLV of 1860), S.377---Constitution of Pakistan (1973), Art.203-F (3)---Re-appraisal of evidence---Medical and ocular account---Opinion of Trial Court---Scope---Both the accused and six others were charged with abduction of minor girl aged about 11/12 years and her minor brother aged about 12/13 years---Accused were also charged with the offence of committing Zina-bil-Jabr and sodomy with both the victims---Trial Court convicted both the accused and sentenced them to twelve years of imprisonment, while remaining six co-accused were acquitted---Conviction and sentence awarded by Trial Court was maintained by Federal Shariat Court---Plea raised by both the accused was that they were convicted on the solitary statements of victims---Validity--- Statement of victim was duly corroborated by the statement of doctor who had categorically stated that hymen was absent and she was pregnant---Such statement was also corroborated by ultra sound report according to which she was pregnant of about 18 weeks---Trial Court was justified to disbelieve defence version and same was upheld by Federal Shariat Court---Held, any sane person would not like to put at stake his or her family honour as well as career of young un-married daughter for petty disputes as alleged by accused---Both the Courts below, after proper appreciation of evidence, had concurrently convicted both the accused with cogent reasons, keeping in view all the principles of safe administration of justice---Supreme Court as a rule, gave due weight and consideration to the opinion of Courts below and particularly to the opinion of Trial Court, which had the advantage of hearing the parties, witnesses and watching their demeanour and declined to interfere with the conviction and sentence awarded to the accused by the Courts below---Leave to appeal was refused.

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

----Art. 203-F(3)---Jurisdiction of Supreme Court under Art.203-F(3), Constitution of Pakistan---Scope---Concurrent findings of guilt recorded by the Courts below---Normally, Supreme Court does not interfere with findings of fact arrived at by the primary Courts or Federal Shariat Court, when it is satisfied that findings of the Courts below were on the whole reasonable and were not arrived at by disregarding any provision of law or any accepted principle concerning appreciation of evidence---Such would be notwithstanding that a different view may also be possible.

Fazle Razaq v. Jan Sadiq and others 1985 SCMR 128; Abdul Khaliq v. The State 1986 SCMR 35; Mujahid Hussain v. The State 1984 SCMR 54 and Noora and another v. The State PLD 1973 SC 469 rel.

Sardar Abdul Majeed, Advocate Supreme Court for Petitioners.

Nemo for the State.

2007 S C M R 478

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

TEHSIL MUNICIPAL OFFICER, ABBOTTABAD----Petitioner

Versus

GOVERNMENT OF PAKISTAN, MINISTRY OF DEFENCE and others----Respondents

Civil Petition No.631-P of 2003, decided on 15th November, 2006.

(On appeal from the judgment, dated 5-3-2003 of the Peshawar High Court Abbottabad Bench in Writ Petition No.4 of 2003).

Cantonments Act (II of 1924)----

----S. 4---Constitution of Pakistan (1973), Art.185(3)---Inclusion of area in cantonment limits---Notification---Objections---Federal Government issued notification under S.4 (1) of Cantonments Act, 1924 and invited objections to the proposed inclusion of-the area in cantonment limits---Notification under S.4(3) of Cantonments Act, 1924, was issued after requisite period of six months---Such notification was assailed by petitioner before High Court but without any success---Validity---Notification under S.4 (3) of Cantonments Act, 1924, was well within law---Petitioner failed to point out any illegality, misreading or non-reading in the judgment passed by High Court warranting interference by Supreme Court---Leave to appeal was refused.

Javed A. Khan, Advocate Supreme Court and Mir Adam Khan, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2007 S C M R 480

[Supreme Court of Pakistan]

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

DURRANAI and 35 others---Petitioners

Versus

HAMIDULLAH KHAN and 15 others----Respondents

Civil Petition No.378-P of 2003, decided on 20th October, 2006.

(On appeal from the judgment; dated 6-5-2003 of the Peshawar High Court, Peshawar passed in Civil Revision No.306 of 1996).

Specific Relief Act (I of 1877)---

---S. 42---Limitation Act (IX of 1908), S.28 & Art.148---Constitution of Pakistan (1973), Art.185(3)---Declaration of title---Adverse possession--Mortgagees sought declaration of title over suit-land on the ground that mortgagors had failed to get the suit-land redeemed within a period of sixty years---Trial Court decreed the suit in favour of mortgagees but Lower Appellate Court dismissed the same---Judgment and decree passed by Lower Appellate Court was maintained by High Court on the ground that provision of S.28 of Limitation Act, 1908, had been declared repugnant to Injunctions of Islam---Validity---Suit for prescription of title could be fruitful only if mortgagees were fortunate to obtain a decree before 31-8-1991 because after such date, right or title of mortgagor would not be deemed extinguished---If a mortgagee made option to bring a suit for prescription of title, it must be so brought as to obtain a decree before 31-8-1991-Mortgagees had obtained decree only on 2-6-1994, when S.28 of Limitation Act, 1908 was no more a part of the statute---Lower Appellate Court and High Court had rightly non-suited the mortgagees---Leave to appeal was refused.

Maqbool Ahmad's case 1991 SCMR 2063 and Muhammad Hussain's case 2004 SCMR 1131-rel.

Abdul Samad Khan, Advocate-on-Record for Petitioners.

Jived A. Khan, Advocate Supreme Court with Mir Adam Khan, Advocate-on-Record for Respondents.

Date of hearing: 9th October, 2006.

2007 S C M R 482

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Abdul Hameed Dogar and Saiyed Saeed Ashhad, JJ

EHSAN AKBAR----Petitioner

Versus

THE STATE and 2 others----Respondents

Civil Petition No.185 of 2006, decided on 27th September, 2006

(On appeal from the order, dated 28-4-2006 of the Lahore High Court Rawalpindi Bench, passed in Criminal Miscellaneous No.320/B of 2006).

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

----S. 497(5)---Penal Code (XLV of 1860), S.302---Bail, cancellation of---Principles---Jurisdiction of Supreme Court---Scope---Supreme Court, ordinarily does not interfere with the order of High Court relating to bail, particularly in case of murder, when trial is to commence, so as to avoid discussion and remarks on merits of the case---For cancellation of bail, strong and exceptional grounds are required and it is to be seen as to whether order granting bail is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice.

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

----Ss. 497(2) & 497(5)---Penal Code (XLV of 1860), S.302---Bail, cancellation of---Case of further inquiry---Deeper appreciation of evidence---Failure to recover weapon of offence---Accused allegedly used Klashanikov rifle during the occurrence---High Court granted bail to accused on the ground that the rifle was not recovered from him during investigation---Validity---Ground which weighed with High Court for grant of bail was not at all a valid ground---Case of accused was not of further inquiry as contemplated under S.497 (2) Cr.P.C.---Grant of bail to accused had prejudiced the case of complainant as it amounted to deeper appreciation of evidence---While granting bail, only tentative assessment of evidence was to be made, whereas deeper appreciation of evidence was to be avoided---Supreme Court converted petition for leave to appeal into appeal and set aside the order passed by High Court, resultantly bail granted to accused was recalled---Appeal was allowed.

Nazir Ahmed v. Muhammad Ismail and another 2004 SCMR 1160 and Raja Muhammad Irshad v. Muhammad Bashir Goraya 2006 SCMR 1292 ref.

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

----Ss. 497(2) & 497(5)---Penal Code (XLV of 1860), S.302---Bail, cancellation of---Case of further inquiry---Conflict in ocular and medical account---Injury attributed to accused was found on the body of deceased, therefore, High Court found the case of' accused as one of further inquiry and granted him bail---Validity---Held, there was a conflict between prosecution version and medical evidence; as prosecution case was that accused gave Chhuri blow on the neck of deceased whereas according to Medico-legal Report, as well as the diagram all injuries were caused with fire-arm weapon---Complainant failed to make out a case for cancellation of bail granted to accused---Supreme Court declined to interfere with the order passed by High Court---Leave to appeal was refused.

Dr. Babar Awan, Advocate Supreme Court for Petitioner.

Khadim Hussain Qaiser, Additional Advocate-General, Punjab for Respondent No. 1.

Sardar Muhammad Ishaque, Senior Advocate Supreme.

Court with Respondents Nos.2 and 3.

Date of hearing; 27th September, 2006.

2007 S C M R 486

[Shariat Appellate Jurisdiction]

Present: Justice Javed Iqbal, Chairman, Justices Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed, Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullundhari, Members

AKBAR ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.24(S) of 2003, decided on 22nd November, 2006.

(On appeal from the judgment, dated 15-1-2002 passed by the Federal Shariat Court in Criminal Appeal No.20/P of 2001).

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

----S. 10(3)---Appreciation of evidence---Benefit of doubt---Last seen evidence of court witness being real paternal aunt of deceased---Statement of court-witness was recorded under S.161, Cr.P.C. after four months of lodging of F.I.R. and her name was not mentioned hi Challan as witness---Court witness after incident did not inform mother of deceased (complainant) or other relatives that she had seen deceased baby in lap pf accused---Statement or court-witness did not inspire confidence in view of contradictions therein by not mentioning date, time and place---Such last seen evidence as first link would not connect accused with commission of charged offence---Last seen evidence being a circumstantial evidence was a weak type of evidence---Duty of prosecution was to prove case against accused beyond any shadow of doubt, even if accused. had failed to furnish explanation for disappearance of deceased having been seen along with him before death, particularly when court-witness did not disclose such fact for four months after incident---No reliable evidence was available on record to connect accused with commission of offence---Accused was entitled to benefit of doubt---Conviction of accused was set aside and he was acquitted of charged offence in circumstances.

Ghulam Mustafa's case PLD 1991 SC 718; Nazo's case 1977 SCMR 20; Rehmat's case PLD 1977 SC 515; Naqibullah's case PLD 1978 SC 21; Mangal Singh's case AIR 1937 Lab. 127 and Siraj Din's case PLD 1964 SC 26 rel.

(b) Criminal trial---

----Last seen evidence---Evidentiary value---Evidence of a witness having last seen deceased and accused together would require corroboration---Principles.

The evidence of a witness, who had some connection with the deceased, about having last seen the deceased and the accused requires corroboration.

Last seen evidence is a circumstantial evidence and weak type of evidence.

Ghulam Mustafa's case PLD 1991 SC 718; Nazo's case 1977 SCMR 20; Rehmat's case PLD 1977 SC 515 and Naqibullah's case PLD 1978 SC 21 rel.

(c) Criminal trial---

----Motive/enmity, existence of---Neither substantive nor direct nor corroborative evidence, but a circumstance leading to commission of an offence---Principles.

Existence of motive/enmity is neither a substantive nor a direct evidence. It is not a corroborative piece of evidence either. The motive/enmity is only a circumstance, which may lead to the commission of an offence. It is a starting point for committing a crime, but under no circumstance it can be taken as an evidence. Further, motive/enmity is a double-edged weapon. Offence may be perpetrated because of the existence of the motive/enmity and it can also be a basis of a false charge.

Muhammad Noor's case 1991 SCMR 643 rel.

(d) Criminal trial---

----Circumstantial evidence may sometimes by conclusive, but same must always be narrowly examined as same may be fabricated only to cast suspicion on another---Where circumstantial evidence is so strong to connect accused with commission of offence, then capital punishment may be awarded to him.

Lajzor Teper's case PLD 1952 PC 119; Jaffar Ali's case 1998 SCMR 2669 and Muhammad Amjad's case PLD 2003 SC 704 rel.

(e) Criminal trial---

----Medical evidence by itself and without more, could not throw light on identity of assailants.

Machia's case PLD 1976 SC 695 rel.

(f) Criminal trial---

----Benefit of doubt would always be given to accused.

Lal Shah's case Criminal Appeal No.56 of 1969; Shear Muhammad's case AIR 1945 Lah. 27 and Fazal Elahi's case PLD 1953 FC 214 rel.

(g) Administration of justice---

----Every case would be decided on its peculiar circumstances and facts.

Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 rel.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

Sardar Shoukat Hayat Additional Advocate-General, N.-W.F.P. for the State.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Complainant.

2007 S C M R 494

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

RIFFAT IQBAL---Appellant

Versus

Mst. FATIMA BIBI and others---Respondents

Civil Appeal No.760 of 2006, decided on 10th October, 2006.

(On appeal from the judgment, dated 20-2-2006 passed by Lahore High Court, Lahore in Writ Petition No.6333 of 2004).

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

----S. 13---Civil Procedure Code (V of 1908), Ss.148, 149 & 151---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider; whether extension of time allowed by Trial Court to pre-emptor for making up the deficiency in payment of court-fee under Ss.148, 149 and 151 C.P.C. was unjustifiably recalled by Lower Appellate Court.

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

----S. 13---Civil Procedure Code (V of 1908), Ss.148, 149 & 151---Deficiency in court-fee--Extension of time---Pre-emptor was directed by Trial Court to make good deficiency in court-fee by a specific date---Pre­emptor sought extension of time for making good deficiency in court-fee, which time was extended---Lower Appellate Court set aside the order of Trial Court whereby time was extended---Order passed by Lower Appellate Court was upheld by High Court in exercise of Constitutional jurisdiction---Plea raised by pre-emptor was that she was ignorant of law---Validity---Once opportunity to make good the deficiency in court-fee was provided to pre-emptor and if she had failed to discharge her legal obligation then she was not entitled to any relief---Plea of ignorance of law by pre-emptor was without any justification---Supreme Court did not find any justification to interfere with well-reasoned concurrent findings of two Courts below---Appeal was dismissed.

Sultan Ahmad and others v. Khuda Bux and others 1986 SCMR 1005; Shah Nawaz and 6 others v. Muhammad Yousaf and 3 others 1972 SCMR 179 and Mubarak Ahmad and 2 others v. Hassan Muhammad through Legal Heirs 2001 SCMR 1868 distinguished.

Abdul Majid v. Muhammad Afzal Khokhar 1993 SCMR 1686 and Assistant Commissioner and Land Acquisition Collector, Badin v. Haji Abdul Shakoor and others 1997 SCMR 919 rel.

Hifz-ur-Rehma, Advocate Supreme Court and Mehr Khan Malik Advocate-on-Record for Appellant.

F.K. Butt Advocate Supreme Court and Ejaz Muhammad Khan Advocate-on-Record for Respondents.

Date of hearing: 10th October, 2006.

2007 S C M R 497

[Supreme Court of Pakistan]

Present: Javed Iqbal and Raja Fayyaz Ahmed, JJ

JANG BAHADAR and others---Appellants

Versus

TOTI KHAN and another---Respondents

Civil Appeals Nos.1942 and 1943 of 2002, decided on 19th December, 2006.

(On appeal from the judgment dated 11-5-2002 of the High Court of Balochistan, Bench. at Sibi passed in Regular First Appeals Nos.(S)4 of 2001, (Q)43 and 44 of 1999).

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

----Ss. 8, 42 & 54---Qanun-e-Shahadat (10 of 1984), Arts.75 & 100---Will, execution of--Onus to prove---More than thirty years old document---Presumption---Parties were sons and daughters from two different wives of deceased owner of the suit property---Plaintiffs filed suit on the basis of a Will allegedly executed by their father excluding the defendants---Trial Court decreed the suit in favour of plaintiffs but High Court in exercise of appellate jurisdiction allowed the appeal and dismissed the suit---Validity---Plaintiffs since had claimed to be the beneficiaries of the document of Will, therefore, it was essential for them to have proved its execution through marginal witnesses and scribe of the instrument and in case such witnesses were not alive/could not be found to depose, as the case might be---Plaintiffs failed to explain the default, nor even the original document was produced---No presumption of its execution could be attached within the meaning of Art.100 of the Qanun-e-Shahadat, 1984---Conclusions drawn by High Court with respect to the alleged Will were exceptionable---Was essential for plaintiffs to have produced the original document; in case of failure to do so, plausible explanation for non-production of the document or the same having been lost, destroyed or in the possession of any other person not capable to be produced should, have been provided by applying or satisfying the Court, at least for production of the secondary evidence in shape of copy thereof, which had not been done by plaintiffs---Attaching presumption of execution of document was a matter of great care and caution in cases involving rights of parties to the property---Presumption was weakened which tended to raise suspicion about the genuineness of the document---Supreme Court declined to interfere with the judgment and decree passed by High Court---Appeal was dismissed.

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

----Art. 100---Thirty years old document---Presumption---Applicability---Principles---Not essential for a court to attach presumption of execution of a document more than 30 years old in all the cases without attending to the other relevant facts and circumstances of the case merely because any such presumption was claimed to be attached to such document---Presumption of execution of such document is permissible and not imperative even if the document be a 30 years old and was produced from proper custody.

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

----S. 96---High Court (Lahore) Rules and Order, Vol.V, Chap.1-A---Appeal from original decree---Maintainability---Single Bench of High Court heard Regular First Appeal and it was decided against plaintiffs---Plea raised by plaintiffs was that the appeal was not competently decided by High Court, as it was to be decided by Division Bench of High Court---Validity---High Court Rules and Orders were the Rules of Business regulating practice and procedure of High Court providing manner in which such powers were exercisable---High Court Rules and Orders could not confer or take away any of the powers which were vested in the Judge and to have added or subtracted any of the powers vesting in the Judge under the Constitution and law---Powers of the Judge were not subject to any clog or restriction unless the same having been formally entrusted to him---Each Bench of High Court, be a Division Bench, Full Bench or a Single Bench represented High Court and judgments delivered by any of the Benches would be that of High Court---Such rule relating to the hearing of Regular First Appeals by a Division Bench would not divest the Single Judge of his jurisdiction conferred and exercisable by him under the Constitution and law---Lapse on the part of office for not listing such appeals in view of the value of the property in question before a Division Bench of High Court did not render the judgment as coram non judice and of no legal effect---Appeal was competently decided by Sindh Bench of High Court.

Chitranjan Cotton Mills Ltd. v. Staff Union PLD 1971 SC 197; Rashid Ahmed v. The State PLD 1972 SC 271; Moulvi Aziz-ur-Rehman v. Ahmad Khan and others 2004 SCMR 1622; Habibullah v. Land Acquisition Collector and others 2005 SCMR 1320 and PLD 1949 PC 45 rel.

Basharatullah, Senior Advocate Supreme Court for Appellants (In both Civil Appeals).

Muhammad Mohsin Javed Advocate Supreme Court and Mrs. Ashraf Abbas Advocate-on-Record for Respondent No.1 (in C.A. No.1942 of 2002).

Respondents Nos.2 to 8 ex parte (in C.A. No.1942 of 2002).

Mir Aurangzeb Advocate-on-Record for Respondent No.4 (in C.A. No.1943 of 2002).

Muhammad Mohsin Javed Advocate Supreme Court and Mrs. Ashraf Abbas Advocate-on-Record for Respondent No.5 (in C. A. No.1943 of 2002).

Date of hearing: 9th October, 2006.

2007 SCMR 507

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and Muhammad Nawaz Abbasi, J

ATIQUE REHMAN---Appellant

Versus

Haji KHAN AFZAL and others---Respondents

Civil Appeal No.970 of 2003, decided on 2nd October, 2006.

(On appeal against the judgment dated 2-6-2003 passed by the Peshawar High Court, Peshawar in Election Petition No.29 of 2002).

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

----Ss. 67(3) & 99---Age of candidate---Determination---Decree of civil court---Election petition was allowed by Election Tribunal on the ground that returned candidate was not of' the age of 25 years at the time of filing of his nomination papers---Plea raised by the candidate was that much before filing of nomination papers, his age had been determined by civil court---Validity---So long decree of civil court determining age of candidate above 25 years on the date of filing of nomination papers was intact, the objection that he was less than 25 years of age on the date of nomination papers, could not be raised to contend that he was suffering from disqualification to contest election---Candidate was enrolled as voter in the constituency from which he was contesting election and he having not been found to be suffering from any other disqualification to contest election, was declared a validly nominated candidate---Neither any appeal was filed against acceptance of nomination papers of the candidate nor order passed on application under S.12 (2) C.P.C., challenging the decree was further assailed---Election Tribunal not being competent court to sit over judgment of civil court would have no jurisdiction to go beyond the decree and pass a contrary order in respect of the age of candidate---Judgment passed by Election Tribunal was set aside---Appeal was allowed.

Wasim Sajjad Senior Advocate Supreme Court and Mehr Khan Malik Advocate-on-Record for Appellant.

Abdul Aziz Kundi Advocate-on-Record for Respondents.

2007 S C M R 510

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

GOVERNMENT OF BALOCHISTAN through Secretary Revenue, Board of Revenue, Balochistan, Quetta and another---Appellants

Versus

ABDUL RASHID LANGOVE---Respondent

Civil Appeal No.811 of 2000, decided on 4th October, 2006.

(On appeal from the judgment, dated 5-7-1999 of the High Court of Balochistan, Quetta, in C.R. No.352 of 1998).

(a) Land Reforms Regulation, 1972 (MLR 115)---

----Regln. 26---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider; whether High Court had overlooked to attend an important question namely jurisdiction of civil court was barred under S.26 of Land Reforms Regulation, 1972; whether courts below failed to attend the question that suit was barred by time and whether there was no sufficient evidence available on record to grant relief to respondents as was prayed for in the plaint.

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

----S.42---Limitation Act (IX of 1908), S.5---Civil Procedure Code (V of 1908), S.115---Declaration of title---Revision before High Court---Limitation---Concurrent findings of fact by the courts below---Plaintiff filed suit claiming right of tenancy from his forefathers, which ought be recognized and his name be entered in the column of tenancy to the extent of 5/6th share, as he had been in possession as tenant since his forefathers---Suit filed by plaintiff was dismissed by Trial Court and such judgment and decree was maintained by Lower Appellate Court---Revision filed before High Court was dismissed as it was barred by limitation---Validity---Plaintiff did not challenge vires of Land Reforms Regulations, 1972---Revision before High Court was barred by time as provision of S.5 of Limitation Act, 1908, was not available while filing revision petition under Land Reforms Regulations, 1972---Supreme Court did not find any legal infirmity in the judgment passed by High Court---Appeal was dismissed.

Mehmood Raza Additional Advocate-General for Appellants.

Syed Shafqat Hussain Shah Advocate Supreme Court for Respondent.

Date of hearing: 4th October, 2006.

2007 S C M R 513

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, CJ, Muhammad Nawaz Abbasi and Saiyed Saeed Ashhad, JJ

MUHAMMAD ASLAM---Petitioner

Versus

WAPDA and others---Respondents

Civil Petition No.378-L of 2004, decided on 23rd November, 2006.

(On appeal from the judgment, dated 12-12-2003 passed by Federal Service Tribunal, Lahore in Appeal No.514(L)(C.S.) of 2003).

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Appeal before Service Tribunal--- Limitation--- Time-barred departmental representation---Contention of civil servant was that departmental representation was not dismissed on merits and Service Tribunal should not have non-suited civil servant on the ground of limitation--Validity---Appeal of civil servant having been rejected by department, presumption would be that it had been rejected both on limitation as well as on merits---If departmental appeal was not filed within the statutory period, appeal before Service Tribunal would not be competent---Civil servant was non-suited for non-filing of appeal within time, therefore, Supreme Court declined to interfere with the judgment passed by Service Tribunal---Leave to appeal was refused.

Anwarul Haq v. Federation of Pakistan through Secretary, Establishment Division Islamabad and 13 others 1995 SCMR 1505; Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others PLD 2002 SC 101; State Bank of Pakistan v. Khyber Zaman and others 2004 SCMR 1426 and N.E.D. University of Engineering and Technology v. Syed Ashfaq Hussain Shah 2006 SCMR 453 rel.

Mehboob Azhar Sheikh Advocate Supreme Court for Petitioner.

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

2007 S C M R 515

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J. and Muhammad Nawaz Abbasi, J

Mst. KHARIA BIBI---Appellant

Versus

Mst. ZAKIA BEGUM and 2 others---Respondents

Civil Appeal No.1618 of 2003, decided on 11th October, 2006.

(On appeal from the judgment dated 8-10-2003 passed by Lahore High Court, Rawalpindi Bench in Civil Revision No.145/D of 1998).

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

----S. 13---Right of pre-emption, exercise of---Talb-i-Muwathibat---Proof---Non-mentioning of date, time and place of making Talb-i-Muwathibat in plaint---Effect---Plaint filed by pre-emptors did not contain such details but Trial Court decreed the suit in favour of pre­emptors---Lower Appellate Court allowed the appeal of vendee and dismissed the suit but High Court' in exercise of revisional jurisdiction restored the judgment and decree passed by Trial Court--:-Plea raised by vendee was that Talb-i-Muwathibat was not proved, as in plaint there was no mention of date, time and place of making such Talb by pre­emptors---Validity---Particulars regarding place, time and date of performance of Talb-i-Muwathibat were required to be mentioned in pleadings because in order to determine question of limitation, it was necessary to know exact date and time when Talb-i-Muwathibat was performed---Performance of Talb-i-Muwathibat was also necessary because according to law, after performing Talb-i-Muwathibat, within 14 days notice of Talb-i-Ishhad had to be issued---No such details having been mentioned in pleadings, Lower Appellate Court had rightly directed for dismissal of the suit filed by pre-emptors---High Court while interfering in judgment of Lower Appellate Court, had not discussed the judgments passed by Supreme Court on such issue judgment passed by High Court on account of such reason admitted interference by Supreme Court and being not sustainable was set aside and that of Lower Appellate Court was restored---Appeal was allowed.

Haji Muhammad Saleem v. Khuda Bukhsh PLD 2003 SC 315; Muhammad Siddique v. Muhammad Sharif 2005 SCMR 1231; Akbar Ali Khan v. Mukammal Shah and others 2005 SCMR 431; Atiqur Reham and others through their real father v. Muhammad Amin PLD 2006 SC 309 and C.P. No.822 of 2006 dated 20th September, 2006 fol.

Gul Zarin Kiani Advocate Supreme Court and M.S. Khattak Advocate-on-Record for Appellant.

Muhammad Younis Bhatti Advocate Supreme Court for Respondents.

2007 S C M R 518

[Shariat Appellate Jurisdiction]

Present: Justice Javed Iqbal, Chairman, Justices Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed, Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullundhari, Members

SHERAZ TUFAIL---Petitioner

Versus

THE STATE---Respondent

Jail Petition No.70(S) of 2004, decided on 8th November, 2006.

(On appeal from the judgment dated 1-4-2004 passed by Federal Shariat Court, in Jail Criminal Appeal No.296/I of 2003).

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

----Ss. 302(b)/34/201/377---Reappraisal of evidence---Circumstantial evidence---Scope--Awarding of capital punishment---Circumstantial evidence is one of the modes to find out guilt or innocence of accused---If circumstantial evidence is sufficient to connect accused with the offence beyond any reasonable doubt, accused can be awarded capital punishment on the basis of such evidence.

Jaffar Ali's case 1998 SCMR 2669; Muhammad Akbar's case 1995 SCMR 693; State v. Minhun alias Gul Hassan PLD 1964 SC 813 and Manjeet Singh's case PLD 2006 SC 30 ref.

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

----Arts. 113 & 133---Admitted fact---Fact not cross-examined---Effect---If defence has failed to cross-examine witness about a specific portion of his statement of examination-in-chief, such unchallenged statement would be deemed to have been admitted by defence.

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

----Ss. 302(b)/34/301/377---Reappraisal of evidence---Interested witness---Evidentiary value---Scope---Relationship is not sufficient to discard statement of interested witness.

Roshin's case PLD 1977 SC 557 rel.

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

----Ss. 302(b)/34/201/377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979); S.12---Constitution of Pakistan (1973), Art.203-F(2-B)---Reappraisal of evidence---Extra-judicial confession---Accused was convicted after trial and sentenced to imprisonment for life, which was maintained by Federal Shariat Court---Plea raised by accused was that both the courts had wrongly convicted him on the basis of circumstantial evidence produced by prosecution in shape of extra-judicial confession---Validity---Both the courts below had given finding that accused had made confessional statement voluntarily before his own nearest relative who appeared as prosecution witness---Confession of accused was also corroborated with other pieces of evidence recovered during. investigation---Conviction could be awarded on the basis of circumstantial evidence alone---Both the courts below had convicted and sentenced the accused after proper appreciation of evidence on record---Concurrent conclusions arrived at by courts below could not be interfered by Supreme Court in exercise of jurisdiction under Art.203-F(2-B) of the Constitution---Supreme Court declined to interfere with the conviction and sentence awarded by both the courts below---Leave to appeal was refused.

Muhammad Akbar's case 1995 SCMR 693; State v. Minhun alias Gul Hassan PLD 1962 SC 813; Talib Hussain's case 1981 SCMR 174; Muhammad Arshad's case 1992 SCMR 1187; Muhammad Fayyaz's case PLD 1984 SC 445; Khuda Bakhsh's case 2004 SCMR 331; Daulat Ali's case 1999 SCMR 845; Syed Sharifuddin Pirzada's case PLD 1972 SC 363; Ch. Muhammad Yaqoob's case 1992 SCMR 1983; Abdus Samad's case PLD 1964 SC 167 and Nazir Ahmad's case 1994 SCMR 58 rel.

Rafaqat Hussain Shah Advocate Supreme Court for Petitioner.

Nemo for Respondent.

2007 S C M R 525

[Shariat Appellate Jurisdiction]

Present: Justice Javed Iqbal, Chairman, Justices Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed, Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullundhari, Members

ISRAR ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.15(S) of 2003, decided on 23rd November, 2006.

(On appeal from the judgment, dated 17-10-2002 passed by the Federal Shariat Court, Lahore Bench, in Criminal Appeal No.63/L of 2000 and Murder Reference No.1/L of 2001).

(a) 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.203-F (2-B)---Leave to appeal was granted by Supreme Court to consider; whether offence in the case had been appreciated in consonance with the principles laid down for appraisal of evidence in criminal cases.

(b) Criminal trial---

----Circumstantial evidence---Scope---Punishment can be awarded on circumstantial evidence.

Jaffar Ali's case 1998 SCMR 2669 rel.

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

----Arts. 203-F & 185---Appellate jurisdiction of Supreme Court---Scope---Supreme Court is not a clearing house or a corrective forum to revise sentences passed by competent courts in criminal cases---Supreme Court was not to interfere and tinker with legal sentences so awarded---If sentence is found to have been measured fancifully in breach of recognized principles of natural justice, Supreme Court, in the interest of justice and fairplay, must intervene.

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

----Ss. 302(b) & 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Reappraisal of evidence---Mitigating circumstances---Quantum of sentence---Benefit of doubt---Delay in sending crime empty to Forensic Science Laboratory---Uncorroborated case property---Prosecution witness admitted in cross-examination that he did not state before Investigating Officer that parcel containing crime empty was handed over to the witness who placed it in Malkhana---Crime empty was taken into possession on 3-11-1999 but was sent to Forensic Science Laboratory on 1-12-1999---Accused was arrested on 5-12-1999, and pistol was recovered from him on his pointation---Effect---Such type of' recovery of crime empty did not provide strong corroboration to prosecution version and mitigating/extenuating circumstances in favour of accused for lesser penalty---Prosecution failed to connect accused, in the circumstances of case, with property recovered from the spot and the property recovered from the bag of accused---Benefit' of doubt could be pressed into the matter of sentence---Sentence of death awarded under S.302(b), P.P.C. and S.12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, awarded by Trial Court and maintained by Federal Shariat Court was converted into imprisonment for life---Appeal was allowed accordingly.

Mst. Bevi's case 1980 SCMR 859 rel.

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

----Ss. 302(b) & 377---Reappraisal of evidence---Medical evidence---Scope---Medical evidence alone cannot be corroborative evidence, as injuries cannot speak of their inflector.

Machia and others' case PLD 1976 SC 695 rel.

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

----Ss. 302(b) & 377---Reappraisal of evidence---Last seen evidence---Scope---Such evidence is a weak type of evidence.

Naqibullah's case PLD 1978 SC 21; Rehmat alias Rehman alias Waryam alias Badshaw's case PLD 1977 SC 515 and Fazal Elahi's case PLD 1953 FC 214 rel.

(g) Criminal trial---

----Sentence, quantum of---Principle---Question of sentence demands utmost care on the part of court dealing with life and liberties of people---Accused persons are also entitled to extenuating benefit of doubt on the question of sentence.

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

----Ss. 302(b) [as amended by Criminal Law (Second Amendment) Ordinance (VII of 1990)] & 338-F---Punishment---Recording of reasons---Punishment of death or imprisonment for life as Tazir can be awarded under S.302(b), P.P.C.---Circumstances have not been spelt out in S.302 P.P.C., in which either of the two punishments can be awarded; it has been left for superior courts to lay down guidelines for awarding either of the punishments---Unamended S.302, P.P.C. shows that a Judge was not required to give reasons for imposing death sentence for murder as that was considered to be proper sentence for murder but if court imposed a lesser punishment he was required to give reasons for it---After amendment in S.302 P.P.C. it has become difficult, as court while awarding either of the two sentences, has to give reasons for awarding death penalty or life imprisonment, after judicial application of mind---Purpose and object of amendment is based on the principles of Islamic Criminal Law introduced and enforced through Criminal Law (Second Amendment) Ordinance, 1990, promulgated from time to time since 1990, in view of S.338-F, P.P.C. as in Islam except for just cause and reason, a life cannot be taken away or put to an end.

Federation of Pakistan v. N.-W.F.P. Government and another PLD 1990 SC 1172 and Piran Ditta's case PLD 1976 SC 300 rel.

Dr. Muhammad Akmal Saleemi Advocate Supreme Court for Appellant.

Mian Shah Abbas Advocate Supreme Court for Complainant.

Ch. Munir Sadiq Advocate Supreme Court for the State.

2007 SCMR 533

[Supreme Court of Pakistan]

Present: Abdul Hamed Dogar and Mian Shakirullah Jan, JJ

MUMBAR and another---Appellants

Versus

IJAZ HUSSAIN and others---Respondents

Civil Appeal No.389 in Civil Petition No.13-P of 2001, decided on 29th November, 2006.

(On appeal from the judgment, dated 17-11-2000 passed by the Peshawar High Court, Peshawar in Civil Revision No.184 of 1999)

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

----S. 13---Provincially Administered Tribal Areas Regulation (II of 1975)---Right of pre-emption, exercise of---Procedure---Suit for pre-emption was filed on 30-12-1987, before the authorities under Provincially Administered Tribal Areas Regulation No.11 of 1975---Suit was dismissed by the authorities for not having performed requisite Talbs---Validity---Suit had been filed on 30-12-1987 and at that time North-West Frontier Province Pre-emption Act, 1987, which was promulgated on 25-4-1987, had not been extended to Provincially Administered Tribal Areas---In view of vacuum/absence of any law of pre-emption, it would be the Islamic Pre-emption Law which had to govern the field---In the light of judgment passed by Supreme Court in case titled Sardar Ali and others v. Muhammad Ali and others, reported as PLD 1988 SC 287, pre-emption suit had to abate---Held, if the case was again sent back in view of the order of Lower Appellate forum, the ultimate result would be abatement of the case as no Talbs had been made nor the same had been alleged in the plaint---Appeal was dismissed.

Sardar Ali and others v. Additional Secretary Home and T.A. Department and others 1996 SCMR 1480 fol.

Qazi Muhammad Anwar Senior Advocate Supreme Court for Appellants.

Zia-ur-Rehman Advocate Supreme Court for Respondents.

Date of hearing: 29th November, 2006.

2007 SCMR 537

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, CJ, Muhammad Nawaz Abbasi and Saiyed Saeed Ashhad, JJ

SUPERINTENDING ENGINEER GEPCO, SIALKOT---Petitioner

Versus

MUHAMMAD YOUSAF---Respondent

Civil Petition No.1097-L of 2004, decided on 23rd November, 2006.

(On appeal from the judgment dated 8-1-2004 passed by Federal Service Tribunal, Lahore in Appeal No.89(L)(C.S.) of 2000).

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Acquittal on benefit of doubt from criminal charge---Honourable acquittal---Back­-benefits---Entitlement---Civil servant was taken on duty, after his acquittal from criminal charge and his period of suspension was treated as leave on due basis---Grievance of civil servant was that the authorities did not pay him salary for the period---Service Tribunal allowed the appeal of civil servant and directed the authorities to pay him back benefits---Validity---Civil servant who was acquitted by extending benefit of doubt would be deemed to have been acquitted honourably---Service Tribunal had rightly directed the authorities to treat him on duty and give him all financial benefits during the period of his confinement in custody on account of his involvement in criminal case---Leave to appeal was refused.

Dr. Muhammad Islam v. Government of N.-W.F.P. through Secretary Food, Agriculture, Livestock and Cooperative Department, Peshawar and 2 others 1998 SCMR 1993; Rashid Mahmood v. Additional Inspector General of Police and 2 others 2002 SCMR 57 and Muhammad Iqbal Zaman, Vernacular Clerk, Marwat Canal Division, Bannu v. Superintending Engineer, Southern Irrigation Circle, Bannu and 4 others 1999 SCMR 2870 fol.

Aurangzeb Mirza Advocate Supreme Court for Petitioner.

Mian Mehmood Hussain Advocate Supreme Court for Respondent.

2007 S C M R 540

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, CJ and Saiyed Saeed Ashhad, J

MUHAMMAD RAFIQUE and others---Appellants

Versus

MUHAMMAD RAMZAN and others---Respondents

Criminal Appeals Nos.215 and 216 of 2005, decided on 17th November, 2006.

(On appeal from the judgment dated 29-11-2004 passed by Lahore High Court, Lahore in Criminal Appeal No.1546 of 2000).

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

----Art. 185(3)---Criminal case---Judgments of two courts below at variance---Supreme Court granted leave to appeal to reappraise evidence.

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

----S. 356---Recording and signing of statements of witnesses by Presiding Officer---Essentials---Evidence of witness recorded in court on dictation of Presiding Officer by his Reader would be valid---Recording of evidence of witness in court by Reader in absence of Presiding Officer, and evidence so recorded not bearing signatures of Presiding Officer, would be an illegality vitiating trial---Sheets containing statements of witnesses not bearing signatures of Presiding Officer of trial Court in token of their authenticity and cuttings/interpolations not initialled or signed by Presiding Officer would amount to rendering such statements unreliable and trial on their basis for being contrary to law would stand vitiated---Principles.

Abdur Rehman v. Allah Diwaya PLD 1950 Baghdad-ul-Jadid 96 and Muhammad Sarwar v. Khuda Bux PLD 1950 Lah. 274 rel.

Mansoor-ur-Rehman Advocate Supreme Court (in Criminal Appeal No.215 of 2005) for Appellants.

Sardar Shakoor Ahmed Advocate Supreme Court (In Criminal Appeal No.216 of 2005) for Appellants.

Muhammad Ilyas Siddiqui Advocate Supreme Court and M. A. Zaidi Advocate-on-Record for Complainant.

Dil Muhammad Tarar Advocate Supreme Court for the State.

Date of hearing: 17th November, 2006.

2007 S C M R 548

[Supreme Court of Pakistan]

Present Faqir Muhammad Khokhar and Ghulam Rabbani, JJ

Mst. ZUBAIDA----Petitioner

Versus

FALAK SHER and others----Respondents

Civil Petition No.56-L of 2002, decided on 23rd November, 2006.

(On appeal from judgment/order, dated 4-12-2001 passed by the Lahore High Court, Lahore, in Writ Petition No.11085 of 1998).

Penal Code (XLV of 1860)---

----S. 57---Criminal Procedure Code (V of 1898), Ss.35 & 397---Constitution of Pakistan (1973), Art.185(3)---Sentences in one trial--Concurrent or consecutive---Grievance of complainant was that sentences of life imprisonment awarded to convicts on four counts should run consecutively----Validity---Aggregate of punishments of imprisonment for several offences at one trial was deemed to be a single sentence, under S.35, Cr.P.C. and there could not be more than one life sentence at one trial---Position of a person was different under S.397, Cr.P.C., who, while already undergoing a sentence of imprisonment for life, was subsequently convicted and sentenced on another trial---Such subsequent sentence would commence at expiration of imprisonment for life for which he had been previously sentenced---Provision of S.397, Cr.P.C. even in such cases, expressly enabled the Court to direct that subsequent sentence would run concurrently with previous sentence---Nothing was wrong in treating sentences of imprisonment for life of convicts on four counts to run concurrently--Convicts had already been released after serving out their legal sentences, judgment passed by High Court declining to direct sentences run consecutively, did not suffer from any legal infirmity so as to warrant interference by Supreme Court---Leave to appeal was refused.

Juma Khan and another v. The State 1986 SCMR 1573; Javaid Shaikh v. The State 1985 SCMR 153; Khan Zaman and others v. The State 1987 SCMR 1382; Muhammad Ittefaq v. The State I986 SCMR 1627 and Abdul Malik and others v. The State and others PLD 2006 SC 365 rel.

Malik Amjad Parvaiz, Advocate Supreme Court and Walayat Umar, Advocate-on-Record for Petitioner.

Muhammad Hanif Khatana, Additional Advocate-General, Punjab for the State.

Date of hearing: 23rd November, 2006.

2007 S C M R 551

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

KHANDAN----Petitioner

Versus

Mst. QAMAR-UN-NISA and others----Respondents

Civil Petition No.174-P of 2006, decided on 15th November, 2006.

(On appeal from the judgment, dated 2-2-2006 of the Peshawar High Court, D.I. Khan Bench in R.F.A. No.20 of 2004).

(a) Court-fee---

----Question of court-fee---Determination---Duty of Court-Scope--Mere fact of defendant not having pressed question of deficiency in court-fee at trial, does not relieve court of obligation of looking into matter, determining correct amount of court-fee and seeing deficiency made up.

Allah Yar v. Muhammad Riaz and others PLD 1981.SC 489 rel.

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

----S. 12---Court Fees Act (VII of 1870). S.7(x)(a)---Word 'consideration'---Connotation---Value of suit for specific performance has to be determined according to market value of the property prevailing in locality---Specific provision in S.7(x)(a) of Court Fees Act, 1870 existed to the effect that a suit for specific performance is to be valued for the purposes of court-fee and jurisdiction according to the sale consideration---Word `consideration' prima facie means the amount agreed upon between the parties in respect of contract and not a portion of consideration remain payable at the time of suit.

S.P. Gupta v. Abdul Rehman AIR 1958 All. 851 rel.

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

----S. 12---Court Fees Act (VII of 1870), S.7(x)(a)---Civil Procedure Code (V of 1908), S.96---Constitution of Pakistan (1973), Art.185(3)----Specific performance of agreement to sell-Valuation of suit---Regular first appeal---Jurisdiction of High Court---Value of suit property, as per the agreement, was Rs.11,50,000 out of which petitioner had paid Rs.10,00,000 to respondent and Rs.1,50,000 were to be paid at the time of attestation of mutations---Appeal against judgment and decree passed by Trial Court was filed before High Court---Petitioner raised objection to maintainability of the appeal on ground of jurisdiction, which objection was dismissed by High Court---Validity---For the purposes of court-fee, suit was valued at Rs.11,50,000/- and in such circumstances pecuniary jurisdiction was with the High Court---Supreme Court did not find any justification to interfere with the findings of High Court that it had got the pecuniary jurisdiction and regular first appeal was competently filed before it, as such preliminary objection was rightly rejected---Leave to appeal was refused.

Abdul Aziz Kundi, Advocate Supreme Court for Petitioner.

?Nemo for Respondents.

2007 S C M R 554

[Supreme Court of Pakistan]

Present: Ch. Ijaz Ahmed and Hamid Ali Mirza, JJ

PROVINCE OF THE PUNJAB through Collector District Khushab, Jauharabad and others----Appellants

Versus

Haji YAQOOB KHAN and others----Respondents

Civil Appeals Nos.166 to 178 of 2003, decided on 12th December, 2006.

(On appeal from the judgment, dated 30-10-2001 in Civil Revisions Nos.1905 to 1917 of 2003 passed by the Lahore High Court, Lahore).

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

----Ss. 30 & 36---Constitution of Pakistan ((1973), Art.185(3)---Acquisition of proprietary right without allotment order---Entry in "Roznamcha Waqiati" of such acquisition---Validity---Supreme Court granted leave to appeal to consider whether in absence of any allotment order by competent authority, mere report of "Roznamcha Waqiati" could confer right to claim proprietary rights. in addition to effect of Jurisdictional bar perceived by Colonization of Government Lands (Punjab) Act, 1912.

(b) Administration of justice---

----Judicial Officers are duty bound to decide cases after judicial application of mind.

Pir Bakhsh v. The Chairman, Allotment Committee and others PLD 1987 SC 145 rel.

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

----Arts. 189 & 190---Judgment of Supreme Court binding on each and every organ of the State.

Gouranga Mohan Sikdar's case PLD 1970 SC 158 rel.

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

---O. XLI, R.33---First Appellate Court, duty of---Scope---While reversing findings of Trial Court, First Appellate Court must meet the reasoning of Trial Court.

Mandan Copal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617 rel.

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

---S. 36---Civil Procedure Code (V of 1908), S.9---Matter arising under Colonization of Government Lands (Punjab) Act, 1912---Bar on jurisdiction of civil Court---Object and scope---Intention of Legislature qua such bar seemed to be that officers working under the Act, should exercise their powers freely and should not be interrupted unnecessarily while administering colony land according to terms and conditions issued by competent authority---Ambit of jurisdiction of officers working under the Act was defined and they could not act beyond their scope of jurisdiction---Section 36 of Colonization of Government Lands (Punjab) Act, 1912 did not give unfettered powers to officers working under the Act---Bar under S.36 would be available only where authorities acted within four corners of their jurisdiction, but not otherwise---Civil Court would have jurisdiction to interfere, where order passed under the Act was void or without jurisdiction or mala fide or in excess-of jurisdiction or otherwise not in accordance with law or based on fraud---Principles.

PLD 1960 SC 113; Abdul Rab and others v. Wali Muhammad and others 1980 SCMR 139; Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698; Privy Council in Secretary of State v. Mask and Company AIR 1940 PC 105; Agha Shorash Kashmiri's case PLD 1969 SC 14; Khadim Hussain's case PLD 1967 Lah. 915; Muhammad Amin's case NLD 1998 Rev.47; Jewana's case PLD 1954 Lah. 253; Karam Dad's case PLD 1978 Lah. 679; Muhammad Saleh's case 1980 CLC 662; Muhammad Ibrahim's case PLD 1960 Lah. 1106; Masood Ali's case PLD 1950 Lah. 340; Anjuman-­e-Taleem-ul-Islam's case PLD 1983 Lah. 294; Ilamayun's case 1997 MLD 2669; Muhammad Akram's case PLD 1993 Lah. 114; Nawab Din's case 1986 MLD 921; Fateh Muhammad's case 2002 CLC 639; Muhammad Zafar's case 2003 CLC 1922; Muhammad Saleh's case 1980 CLC 662; Khadim Hussain's case 1970 SCMR 127 and Muhammad Shah's case 1982 CLC 55 rel.

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

----S. 9---Order of authority under Special Law in violation of Rules and Regulations or passed mala fide---Jurisdiction of Civil Court---Scope---Manner of exercising power, if violative of law, would be termed as mala fide---Civil Court had jurisdiction to take cognizance of such matter---Principles

Agha Shorash Kashmiri's PLD 1969 SC 14; Khadim Hussain's case PLD 1967 Lah. 915; Muhammad Amin's case NLD 1998 Rev. 47; Jewana's case PLD 1954 Lah.253; Karam Dad's case PLD 1978 Lah. 679; Muhammad Saleh's case 1980 CLC 62; Muhammad Ibrahim's case PLD 1960 Lah. 1106; Masood Ali's case PLD 1950 Lah. 340; Anjuman-e-Taleem-ul-Islam's case PLD 1983 Lah. 294; Hamayun's case 1997 MLD 2669; Muhammad Akram's case PLD 1993 Lah. 114; Nawab Din's case 1986 MLD 921; Fateh Muuhammad's case 2002 CLC 639; Muhammad Zafar's case 2003 CLC 1922; Muhammad Saleh's case 1980 CLC 662; Khadim Hussain's case 1970 SCMR 127 and Muhammad haft's case 1982 CLC 55 rel.

(g) Constitution of Pakistan (1973)---

----Art. 4---Duty of public functionaries to pass orders in accordance with law.

Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 rel.

(h) Administration of justice---

----Nobody should be penalized for act of the public functionaries.

Umar Din through L.Rs. and others v. Abdul Rahim and others 2005 SCMR 496 rel.

(i) Constitution of Pakistan (1973)---

----Art. 185(3)---Concurrent findings of Courts below---Supreme Court would not normally, interfere in such findings.

Muhammad Ishaque's case PLD 1977 SC 109 rel.

Ms. Afshan Ghazanfar, A.A.-G., Punjab for Appellants (in all Appeals).

Muhammad Munir Peracha, Advocate Supreme Court and Ch. Muhammad Akram Advocate-on-Record for Respondent (in all Appeals).

Date of hearing: 12th December, 2006.

2007 SCMR 562

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

SUPERINTENDENT OF POLICE, D.I. KHAN and others----Petitioners

Versus

IHSANULLAH----Respondent

Civil Petition No.384-P of 2005, decided on 14th November, 2006.

(On appeal from the judgment, dated 10-5-2005 of the N.-W.F.P. Service Tribunal Peshawar in Appeal No.180 of 2004).

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

----S. 4---Dismissal from service on account of his arrest in a criminal case---Acquittal from criminal charges---Time-barred appeal---Civil servant was dismissed from service, after he was arrested in criminal case---Civil servant during his arrest, filed departmental representation but did not avail, remedy of appeal before Service Tribunal---Civil servant, after he was acquitted from criminal charge, filed appeal before Service Tribunal, which was accepted and he was reinstated in service---Validity---Appeal before Service Tribunal was filed belatedly from date of his dismissal and after five months from the date of his acquittal from criminal charges---Civil servant had lost his right and could not agitate for reinstatement---Acquittal of civil servant from criminal charges would have absolutely no bearing on merits of case as disciplinary proceedings were to be initiated according to service rules independently---Judgment passed by Service Tribunal, reinstating civil servant in service, after acquittal from the criminal charge was not sustainable in law---Supreme Court set aside the judgment passed by Service Tribunal and order of dismissal of civil servant from service was maintained---Appeal was allowed.

Executive Engineer and others v. Zahid Sharif 2005 SCMR 824 and Sami Ullah v. Inspector-General of Police and others 2006 SCMR 554 ref.

Khushdil Khan, Additional Advocate-General N.-W.F.P. and Altai, S.-I. (Legal) for Petitioners.

Abdul Aziz Kundi, Advocate Supreme Court for Respondent.

2007 SCMR 564

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Nasir-ul-Mulk, JJ

FAZAL-UR-REHMAN and others----Appellants

Versus

Begum SUGHRA HAQ----Respondent

Civil Appeal No.925 of 2002, decided on 6th December, 2006.

(On appeal from the judgment, of the Lahore High Court, Lahore, dated 20-12-2001, passed in Civil Revision No.3420 of 1994).

(a) Contract Act (IX of 1872)---

----S. 62---Specific Relief Act (I of 1877), S.12---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider; whether there was novation of contract, by virtue of letters exchanged between the parties subsequent to execution of original contract, whether original contract stood altered and was no more capable of specific performance, and what was the impact of subsequent sale by vendors in favour of another person, after novation of contract in favour of plaintiff's son.

(b) Contract Act (IX of 1872)---

----S. 62---Specific Relief Act (I of 1877), S.12---Civil Procedure Code (V of 1908), O.XIII, R.2---Specific performance of agreement to sell---Novation of contract---Applicability---Change of name of vendee---Plea not raised in written statement---Effect---Subsequent to execution of agreement to sell, plaintiff wrote a letter to vendor for execution of sale-deed in favour of her son---Initially, vendor agreed to execute the sale-deed in favour of son of plaintiff but instead he sold the property to another person---Suit filed by. plaintiff was decreed by Trial Court in her favour, which judgment and decree was maintained by lower Appellate Court as well as by High Court---Plea raised by vendor and subsequent vendee was that original contract was no longer capable of being specifically performed on account of its novation---Validity---Nothing was on record to show that son of plaintiff had become privy to the arrangement of his being substituted as vendee---Substitution in original agreement of son of plaintiff as vendee could not have been brought about without his being party to new arrangement---Terms of agreement between plaintiff and vendor, even as regards the vendee, remained unaltered---No novation of contract had taken place---Since defendants had not, explicitly or by necessary implication, pleaded novation of contract in written statement, such defence was deemed to have been abandoned in view of O.XIII, R.2, C.P.C.---Appeal was dismissed.

Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690; Almas Ahmad Faiz v. Secretary, Government of the Punjab Housing and Physical Planning Development, Lahore and another 2006 SCMR 783; Gulzar Khan v. Mst. Shahzad Bibi and another PLD 1974 SC 204; Amir Abdullah Khan and others v. Col. Muhammad Attaullah Khan PLD 1990 SC 972; Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189; Tarinikamal v. Perfulla Kumar AIR 1979 SC 1165; Zulqarnain and 2 others v. Surbuland Khan and another 2004 SCMR 1084; Nooruddin and others v. Mst. Amiran Bibi and others PLD 1996 SC 825; Banque Indosuez v. Banking Tribunal for Sindh and Balochistan and others 1994 CLC 2272 and National Bank of' Pakistan v. Shogan Int. (Pvt.) Ltd. and others 2005 CLC 1207 ref.

Hamid Khan, Advocate Supreme Court for Appellants.

Najmul Hassan Kazmi, Advocate Supreme Court for Respondent.

Gul Zarin Kiyani, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Respondent No. 1 (iii).

Date of hearing: 6th December, 2006.

2007 S C M R 569

[Supreme Court of Pakistan]

Present: Javed Iqbal and Ch. Ijaz Ahmed, JJ

OVERSEAS PAKISTANIS FOUNDATION and others----Appellants

Versus

Sqn. Ldr. (Retd.) Syed MUKHTAR ALI SHAH and another----Respondents

Civil Appeal No.2027 of 2004, decided on 4th December, 2006.

(On appeal from the judgment, dated 28-6-2004 passed by the Peshawar High Court, Peshawar, in R.F.A. No.7 of 1996).

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

----Arts. 4 & 5 (2)---Protection of law---Act of public functionaries---Principle---Nobody can be penalized by act of public functionaries in view of Art.4 read with Art.5(2) of the Constitution---Nobody is allowed to take benefit of his own misdeeds.

Raja Muhammad Fazal Khan's case PLD 1975 SC 331; Wali Muhammad's case PLD 1974 SC 106; Tufail Muhammad's Case PLD 1965 SC 269 and Abdul Rashid's case 1969 SCMR 141 rel.

(b) Approbate and reprobate---

----Nobody is allowed to approbate and reprobate.

Ghulam Rasool's case PLD 1971 SC 376 rel.

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

----O. I, R. 10 & O. XLI, R. 33---Damages---Misjoinder of necessary parties---Appellate jurisdiction of High Court---Scope---Plaintiff filed suit for damages on the ground that while on official duty, he met an accident in which he became handicapped due to which he lost his service---Suit was dismissed by Trial Court for not impleading necessary parties but High Court in exercise of appellate jurisdiction, decreed the suit in favour of plaintiff---Validity---Defendants themselves had not provided facility of driver and sent him on official duty where he met with an accident---Later on defendants terminated services of plaintiff on account of his health, therefore, High Court was justified to reverse the judgment of Trial Court---High Court in its capacity as appellate Court possessed jurisdiction to come to its own conclusion on the basis of evidence adduced before Trial Court by parties and resultantly could competently reverse the finding of Trial Court on the questions of fact involved in issues---High Court, after proper appreciation of evidence reversed finding of Trial Court with cogent reasons and was justified that suit filed by plaintiff was not time-barred---High Court was also justified that suit was not liable to be dismissed on the ground that plaintiff had not impleaded all necessary parties as defendants in his suit---Defendants were liable to pay damages to plaintiff, as competent authority had sent him on official duty without providing facility of driver---Appeal was dismissed.

Mian Ghulam Bari's case 1995 MLD 480; Muhammad Yousaf's case 1993 SCMR 1185; Mukhtar Ahmad's case PLD 1956 Sindh 124 and Niaz Ahmad's case PLD 2006 SC 432 rel.

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

---O. VI, R. 1--- Pleadings--- Written statement--- Scope--- Statement made in written statement cannot be treated as evidence in the case.

Mst. Khair-un-Nisa's case PLD 1972 SC 25 rel.

(e) Evidence---

---Statement made in written statement cannot be treated as evidence in the case.

Mst. Khair-un-Nisa's case PLD 1972 SC 25 rel.

Farrukh Jawad Panni, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants.

Mushtaq Ali Tahirkheli, Advocate Supreme Court for Respondent No.1.

Date of hearing: 4th December, 2006.

2007 S C M R 575

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, Hamid Ali Mirza and Karamat Nazir Bhandari, JJ

MUHAMMAD ALI and others----Petitioners

Versus

THE STATE----Respondent

Criminal Petitions Nos.2-K and 3-K of 2005, heard on 4th April, 2006.

Criminal Procedure Code (V of 1898)---

----S. 514---Penal Code (XLV of 1860), Ss.302, 324, 395, 148 & 149---Forfeiture of bail bond---Reduction in amount of surety---Accused persons for whom petitioners stood surety having absented themselves were declared proclaimed offenders and petitioners/sureties were penalized for entire surety amount---Petitioners/sureties who had produced accused before the Trial Court after hectic efforts, deserved leniency in forfeiture of surety amount---Accused for whom petitioners stood sureties having been acquitted, amount of two lacs was reduced to one lac, on humanitarian ground.

Ghulam Qadir Jatoi, Advocate Supreme Court for Petitioners.

2007 SCMR 576

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

MUHAMMAD HASSAN----Appellant

Versus

Khawaja KHALIL-UR-REHMAN----Respondent

Civil Appeal No.1106 of 2001, decided on 4th October, 2006.

(On appeal from the judgment, dated 30-6-1999 passed by Lahore High Court, Lahore in Civil Revision No.138 of 1985).

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

----Ss. 3(3) & 15---Constitution of Pakistan (1973), Art. 185 (3)---Leave to appeal was granted by Supreme Court to consider; whether notification under municipal law would not govern exemption from pre-emption about property lying in municipal area as a separate notification in term of S.3 (3) of Punjab Pre-emption Act, 1913, was to be issued; and whether disputed property had obtained status of urban immovable property as allegedly brick kiln existed therein or it had continued its status of agricultural land in spite of brick kiln.

Chiragh Muhammad Khan v. Mst. Naseeban Bibi 1993 SCMR 1308 rel.

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

---S. 115---Revision---Judgment at variance---Findings of Lower Appellate Court, reliance upon---Principle---In case of divergent findings of two courts below, High Court has to give due attention to findings of Lower Appellate Court unless it suffers from grave irregularity or the same are perverse or reasons given by Lower Appellate Court are not sustainable.

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

----S. 3---Immovable property---'Agricultural land'---Scope---Essence of definition of agricultural land is its agricultural or pastoral character, which are the main criteria to distinguish it from other immovable property.

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

----Ss. 3(3)(a)(b), 15 & 21---Punjab Municipal Act (III of 1911), S.56---Urban immovable property---Determination---Despite establishment of brick kiln over suit-land, Trial Court held the land as pre-emptible and suit was decreed in favour of pre-emptor---Lower Appellate Court did not agree with findings of Trial Court and dismissed the suit on the ground that suit property had lost its agricultural character because of converting into a brick kiln and its inclusion in Municipal Committee---High Court in exercise of revisional jurisdiction upheld judgment and decree passed by Lower Appellate Court---Plea raised by pre-emptor was that no notification under S.3 (3) of Punjab Pre-emption Act, 1913, had been issued by Provincial Government, thus the land was still agricultural in nature---Validity---Board of Revenue could declare by a notification in official gazette that certain area would be deemed to be a town and in addition to such declaration by Board of Revenue, the courts had also been empowered to consider a specified area to be within the limits of a town keeping in view the facts and circumstances in each case---Two conditions were prescribed by S.3(3) clauses (a) and (b) of Punjab Pre-emption Act, 1913, for deeming an area within the limits of town i.e. (i) the authority competent to issue such notification, was Board of Revenue and (ii) to be through a notification in official gazette, after which property would be deemed to be an urban immovable property for the purpose of Punjab Pre-emption Act, 1913---Any notification after year, 1937 by Local Government would not be considered a notification for the purpose of Punjab Pre-emption Act, 1913, as it was only the Board of Revenue, which was competent and could issue a notification under S.3(3) of Punjab Pre-emption Act, 1913---Notification of suit-land, in the present case had been issued in year, 1944, by Provincial Government, which was surely after year, 1937 and it was Provincial Government which was empowered to issue notification under S.3(3) of Punjab Pre-emption Act, 1913---Supreme Court declined to interfere with concurrent judgments and decrees passed by High Court and Lower Appellate Court-Appeal was dismissed.

Chiragh Muhammad Khan v. Mst. Naseeban Bibi 1993 SCMR 1308; Hafiz Hasan Muhammad and 2 others v. Abdul Hameed and 2 others PLD 1982 SC 159; Muhammad Din and others v. Mst. Naimat Bibi and others 2006 SCMR 586; Abdul Qadir and 3 others v. Haji Ghulam Qadir and 4 others 1996 CLC 1216; Asadullah Khan v. Abdul Karim NLR 2000 Sc (J) 441; Muhammad Abdullah and others v. Noor Muhammad and others 1990 CLC 726; Alloo v. Sher Khan and others PLD 1985 SC 382; Mst. Parveen Akhtar and 2 others v. Muhammad Abdullah Mahmood PLD 1998 Lah. 435; Mst. Amecr Begum v. Muhammad Naeem Khan PLD 2000 SC 839 and Safia Begun and 5 others v. Noor Muhammad PLD 2001 SC 438 distinguished.

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

---S. 3(3)---Punjab Municipal Act (III of 1911), S.56---"Town"---Implication---Word "town" sometimes has been interchangeably used for the word urban or municipality as in S.56 of Punjab Municipal Act, 1911---For the purpose of Punjab Pre-emption Act, 1913, if an area has been included in municipality, such area is considered as a part of town.

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

Raja Abdul Ghafoor, Advocate Supreme Court/Advocate-on-Record for Respondent.

Date of hearing: 4th October, 2006.

2007 SCMR 586

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Ghulam Rabbani, JJ

Mirza MUHAMMAD IQBAL----Petitioner

Versus

THE STATE through Advocate-General, Punjab, Lahore and others----Respondents

Civil Petition No.338-L of 2002, decided on 12th December, 2006.

(On appeal from the judgment/order dated 10-12-2001 passed by Lahore High Court, Lahore, in Writ Petition No.17313 of 1999).

Constitution of Pakistan (1973)---

----Art. 185(3)---Civil Procedure Code (V of 1908), S.151---Expunction of remarks by the High Court---Jurisdiction of High Court-Scope--Principle of audi alteram partem---Applicability---Criminal case was registered against petitioner, at the instance of respondent---High Court, in exercise of Constitutional jurisdiction, quashed the F.I.R. and certain adverse remarks were also recorded against respondent---On application filed by respondent, High Court expunged the remarks from judgment---Validity---No notice was served upon respondent before recording adverse remarks nor the same were justified in the facts and circumstances of the case---Nothing was available on record to show that respondent was served with a notice of hearing of constitutional petition---Respondent seemed to have acted in good faith in getting a criminal case registered against petitioner---High Court possessed plenary jurisdiction to expunge the remarks---Order passed by High Court was plainly correct to which no exception could be taken---Leave to appeal was refused.

Mrs. Mehar Sultan Jung v. Qurban Hussain 1972 SCMR 73 and Roazi Khan and others v. Nasir and others 1997 SCMR 1849 ref.

Muhammad Ashiq v. Allah Bakhsh and another PLD 1957 SC 293; Malik Firoz Khan Noon, Prime Minister's House, Karachi v. The State PLD 1958 SC 333 and Aman Ullah Khan and others v. Federal Government of Pakistan through Secretary Ministry of Finance, Islamabad and others PLD 1990 SC 1092 rel.

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

Ch. Aamir Rehman, Addl. A.-G., Punjab for Respondent No.1.

Syed Afzal Haider, Senior Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Respondent No.2.

Date of hearing: 12th December, 2006.

2007 SCMR 589

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Ch. Ijaz Ahmed, JJ

MUHAMMAD ZAFARULLAH through L.Rs. and others----Petitioners

Versus

MUHAMMAD ARIF through L. Rs. and others----Respondents

C.P.L.A. No.2023-L of 2006, decided on 21st December, 2006.

(On appeal from the judgment/order dated 12-09-2006 passed by Lahore High Court, Multan Bench, in C.R. No.345-D of 1997).

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

----S. 42---Punjab Town Improvement Act (IV of 1922), Ss.28 & 36---Registration Act (XVI of 1908), S.77---Constitution of Pakistan (1973), Art.185(3)---Declaration of title---Fraudulent exchange of land---Registration of exchange deed---Concurrent findings of fact by the courts below---Plaintiffs claimed in civil suit that predecessor-in-interest of defendants had illegally got exchange deed registered on the basis of an ex parte decree procured from civil court---Plaintiffs further claimed that predecessor-in-interest of defendants did not have any land to get the same exchange with that of plaintiffs, as his land had already been acquired by authorities under Ss.28 & 36 of Punjab Town Improvement Act, 1922---Suit was decreed by trial court in favour of plaintiffs---Judgment and decree passed by Trial Court was maintained by Lower Appellate Court and High Court---Validity---Predecessor-in-interest of defendants was not owner of land in question as notifications were issued by competent authority under Ss.28 & 36 of Punjab Town Improvement Act, 1922, and possession of land in question had already been taken in terms of acquisition proceedings---All courts below were justified to come to the conclusion that defendants were not owner of property in question to execute exchange deed with plaintiffs---All the courts below had reappraised the evidence and concurrently came to the conclusion that predecessor-in-interest of defendants had played a foil and committed fraud with innocent ladies for the purpose to grab land without giving them his own land in exchange---Supreme Court, after re-examination of evidence, did not find any infirmity or illegality committed by the courts below, while rendering findings against defendants---Leave to appeal was refused.

(b) Fraud---

----Fraud vitiates solemn actions and deeds.

The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 rel.

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

----S.115---Revisional jurisdiction---Scope---High Court has very limited jurisdiction to interfere in the findings recorded by the courts below, while exercising power under S.115, C.P.C.

N.S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras PLD 1949 Privy Council 26 rel.

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

----Art. 185(3)---Jurisdiction of Supreme Court under Art.185(3) of the Constitution, discretionary in character---Scope---Concurrent findings of fact by the Courts below---Miscarriage of justice---Onus to prove---Supreme Court does not normally go behind concurrent findings of fact by the Courts below unless it can be shown that such findings are against the evidence or so patently improvable or perverse that to accept them it would amount to perpetuating grave miscarriage of justice or if there had been any misapplication of principle relating to appreciation of evidence or finally if findings could be demonstrated to be physically impossible---Such being the practice and rule of Supreme Court in civil matters, the burden lies rather heavily on petitioners to show that concurrent findings recorded by High Court are not sustainable on the record and should be interfered with by Supreme Court---Constitutional jurisdiction is discretionary in character.

Haji Saifullah's case PLD 1989 SC 166; Nawab Syed Raunak Ali's case PLD 1973 SC 236 and Rana Arshad's case 1998 SCMR 1462 rel.

Saeed-ur-Rehman Farrukh, Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for Petitioners.

Allah Wasaya Malik, Advocate Supreme Court with M.A. Qureshi, Advocate-on-Record for Respondents.

2007 S C M R 597

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Tassaduq Hussain Jillani, JJ

MUNAWAR SHAH----Petitioner

Versus

BAHADUR SHAH and 7 others----Respondents

Civil Petition No.980 of 2004, decided on 31st October, 2006.

(On appeal from the judgment, dated 4-3-2004 Peshawar High Court, Abbottabad Bench in C.R. No.2 of 2000).

Specific Relief Act (I of 1877)---

----S. 42---Limitation Act (IX of 1908), S.28---Constitution of Pakistan (1973), Art.185(3)---Declaration of title---Adverse possession---Status of mortgagee---Concurrent findings of fact by the Courts below---Effect---Plaintiff claimed his title over suit property as he had been mortgagee of suit property for more than sixty years and also claimed to be the owner on the basis of adverse possession for more than 12 years---Suit was dismissed by Trial Court as well as by Lower Appellate Court and High Court---Validity---Plea of adverse possession and status of mortgagee over suit property was not available to plaintiff, as S.28 of Limitation Act, 1908, had been declared repugnant to the Injunctions of Islam, insofar as it provided for extinguishment of the right in the property at determination of the period prescribed for instituting a suit for possession of such property---Judgment passed by High Court was based on valid and sound reasons and was entirely in consonance with the law laid down by Supreme Court---Neither there was any misreading nor non-reading of material brought on record or misconstruction of facts or law---Leave to appeal was refused.

Maqbool Ahmad v. Hakoomat-e-Pakistan 1991 SCMR 2963 fol.

Raja Muhammad Ibrahim Satti, Advocate Supreme Court for Petitioner.

Roy Muhammad Nawaz Kharal, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Respondents.

Date of hearing: 31st October, 2006.

2007 SCMR 599

[Supreme Court of Pakistan]

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

ROSHAN KHAN, SET GOVERNMENT HIGH SCHOOL KUZ PAO, DISTRICT SHANGLA----Petitioner

Versus

DIRECTOR SCHOOLS AND LITERACY, N.-W.F.P., PESHAWAR and 4 others----Respondents

Civil Petition No.747-P of 2004, decided on 3rd October, 2006.

(On appeal from the judgment, dated 10-8-2004 passed by N.-W.F.P. Service Tribunal, Peshawar in Appeal No.205 of 2004).

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

----S. 10---Rules of Business, (N.-W.F.P), 1974, R.21(2)---Transfer of civil servant---Political influence---Recommendation of Member of Provincial Assembly---Civil servant was a senior school teacher who assailed his transfer order before Service Tribunal but without any success---Plea raised by civil servant was that his transfer was politically motivated and on the recommendations of Member of Provincial Assembly---Validity---Transfer of civil servant under the orders of even a Minister was void and unlawful, being violative of R.21(2) read with Schedule V of Rules of Business, (N.-W.F.P.), 1974---Supreme Court, while condemning the role of Minister, that of tamed and subservient bureaucracy was also condemned and need for an upright, honest and strong bureaucracy was emphasized---Member of Provincial Assembly in view of background of political influence had been guilty of misconduct, unfair exploitation and malpractice that maligned the legislature and disrupted administration--Supreme Court converted petition for leave to appeal into appeal and set aside the transfer order of civil servant---Appeal was allowed.

Munawar Khan v. Niaz Muhammad 1993 SCMR 1287; Parwez Yunas Uppal's case PLJ 2000 (Tr.C) Service 473; Zahid Akhter's case PLD 1995 SC 530 and Sayyad Sikandar Ali Shah's case 2002 SCMR 1 124 fol.

Malik Shahzad Ahmed, Advocate Supreme Court, for Petitioner.

Khushdil Khan, Additional Advocate-General, N.-W.F.P. along with Respondents Nos.2 and 5.

Mir Adam Khan, Advocate-on-Record along with Pir Muhammad Khan, MPA and Hamid Iqbal, MPA on Court's call.

Date of hearing: 3rd October, 2006.

2007 S C M R 605

[Shariat Appellate Jurisdiction]

Present: Justice Javed Iqbal, Chairman, Justices Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed, Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullundhari, Members

IBRAR HUSSAIN and others----Appellants

Versus

THE STATE and another----Respondents

Criminal Appeals Nos.14(S) and 15(S) of 2005, decided on 15th November, 2006.

(On appeal from the judgment, dated 2-5-2005 passed by the Federal Shariat Court, Islamabad, in Criminal Appeals Nos.196-I and 199-I of 2003, Murder Reference No.17-I of 2003).

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

---Ss. 10(4) & 11---Reappraisal of evidence---Contradictory statements---Deliberate and dishonest improvements---Accused were convicted for gang rape and abduction and were sentenced to death penalty and imprisonment for life respectively, by Trial Court---Federal Shariat Court partly allowed the appeal and set aside the sentence for gang rape but maintained that of abduction---plea raised by accused was that in view of contradictory statements of victim, conviction and sentence could not be awarded . to them-Validity-Statements of victim in F.I.R., private compliant filed by her and statement before Trial Court were not in consonance with one another---Contradictions, discrepancies, improvements and omissions existed on material points---Person making contradictory statements could not be held worthy of credence---Witness making improvements and changing version as and when suited according to situation, such type of improvements were found deliberate and dishonest, therefore, could cause serious doubt on the veracity of such witness---Finding of courts below regarding conviction of accused was on the face of it against the evidence or so patently improbable or perverse that to accept it could amount to perpetuating a grave miscarriage of justice---Conclusions reached at by Federal Shariat Court and Trial Court suffered from miscarriage of justice and liberty of accused were involved coupled with the fact that Federal Shariat Court had set aside their conviction under S.10 (4) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Federal Shariat Court had maintained conviction under S.11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, without application of mind, therefore, the same was set aside and accused were acquitted of the charge---Appeal was allowed.

Muhammad Shafique Ahmad's case PLD 1981 SC 472; Tariq Pervez's case 1995 SCMR 1345; Ghulam Ali's case PLD 1986 SC 741 and Khudadad's case 2004 SCMR 425 rel.

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

----S. 10---Evidence---Solitary statement of victim---Principle---Conviction can be awarded in rape/Hudood cases, on the sole testimony of victim subject to the condition that statement of victim must inspire confidence.?

(c) Criminal trial---

----Two explanations of a fact---Effect---Benefit of doubt---When two explanations are equally possible in a given situation, the one in favour of accused should normally be accepted---Benefit of doubt is always be given to accused.?

Tariq Pervez's case 1995 SCMR 1345 and Ghulam Ali's case PLD 1986 SC 741 rel.

Syed Zulfiqar Abbas, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Appellants (in Cr. A. No.14(S) of 2005).

Sardar Manzoor Ahmed, Advocate Supreme Court and Mian Bashir Ahmed Bhatti, Advocate Supreme Court for Appellant (in Cr. A No.15(S) of 2005).

?

Muhammad Masood Chishti, Advocate Supreme Court for Respondent No.2.

Ch. Mushtaq Ahmed Khan, Prosecutor General, Punjab and Ch. Munir Sadiq, Deputy Prosecutor General, Punjab for the State.

2007 SCMR 610

[Shariat Appellate Jurisdiction]

Present: Justice Javed Iqbal, Chairman, Justices Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed, Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullundhari, Members

Criminal Appeal No.8(S) of 2001

HIKMATULLAH and 2 others----Appellants

Versus

THE STATE----Respondent

(On appeal from the judgment, dated 9-10-198 passed by the Federal Shariat Court, Islamabad in Criminal Appeal No.48/Q of 1996 with Criminal Murder Reference No.2/Q of 1996).

Criminal Petition No.11(S) of 2001

SHAHID JABBAR----Petitioner

Versus

THE STATE----Respondent

(On Appeal from the judgment, dated 14-2-2001 passed by the Federal Shariat Court, Islamabad in Criminal Appeal No.93/L of 1999 with Criminal Murder Reference No.1/L of 1999).

Criminal Appeals Nos.8(S) and 11(S) of 2001, decided on 27th November, 2006.

Penal Code (XLV of 1860)---

----Ss.302 (b), 309, 311, 338-E, 392 & 394--Criminal Procedure Code (V of 1898), S.345---Murder during robbery--Compounding of offence---Principle of Fasad-fil-Arz---Applicability---Accused were convicted and sentenced to death for causing death during robbery---Legal heirs of deceased had effected compromise with accused persons---Effect---Offence under S.302 P.P.C. was compoundable in Islam and so had been made in the prevailing law of the land---Murder could be compromised with reference to Ss.309, 310 and 338-E, P.P.C. read with S.345, Cr.P.C. but offences under Ss.392 and 394, P.P.C. were not compoundable---Keeping in view the circumstances of the case, nature of the offence committed and number of persons killed, Court could not he oblivious of the fact that it attracted the principle of Fasad-fil-Arz and offenders were most likely to be potential danger to the community---Supreme Court found the case as a fit, where order under S.311, P.P.C. should be passed---Convictions of accused under Ss.392 and 394, P.P.C. were maintained---Supreme Court converted petition for leave to appeal into appeal and on acceptance of compromise death sentence of accused under S.302(b), P.P.C. was set aside but within the contemplation of S.311, P.P.C. they were sentenced to imprisonment for life---Appeal was disposed of.?

Ghulam Farid's case PLD 2006 SC 53 rel.

Raja Muhammad Ibrahim Satti, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Appellants (in Criminal Appeal No.8(S) of 2001).

Muhammad Raza, Additional Advocate-General, Balochistan for the State (in Criminal Appeal No.8(S) of 2001).

Rai Muhammad Nawaz Kheral, Advocate Supreme Court for Petitioner (in Criminal Petition No.11(S) of 2001).

Dil Muhammad Tarar, Advocate Supreme Court for the State (in Criminal Petition No.11(S) of 2001).

Date of hearing: 6th November, 2006.

2007 SCMR 614

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Syed Jamshed Ali, JJ

MUHAMMAD AMIR and others----Appellants

Versus

Mst. BEEVI and others----Respondents

Civil Appeal No.1654 of 2003, decided on 30th October, 2006.

(On appeal from the order, dated 28-11-2002 passed by Lahore High Court, Lahore in C.R. No.1528 of 1998).

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

----S.42---Constitution of Pakistan (1973), Art. 185 (3)---Leave to appeal was granted by Supreme Court to consider; whether Lower Appellate Court and High Court had committed gross error of law by reversing well-considered findings of Trial Court and in doing so, they had misread and ignored material piece of evidence.

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

----S. 42---Gift---Onus to prove---Donor enjoying usufruct of gifted land---Donor gifted suit-land to his nephew, almost 24 years before his death---Plaintiffs assailed the gift being a result of fraud and forgery and asserted that donor had been enjoying the usufruct of suit-land during his life-time---Trial Court dismissed the suit but Lower Appellate Court setting aside the judgment and decree passed by Trial Court, decreed the suit---Judgment and decree passed by Lower Appellate Court was maintained by High Court in exercise of revisional jurisdiction---Validity---If during his lifetime, donor was enjoying usufruct of land in dispute, it was not unusual nor it detracted from completeness of the gift in any manner---Plaintiffs in their plaint had never raised the plea that gift was bad for non-delivery of possession---Gift made in favour of defendant could not be condemned on the basis of plea of enjoying usufruct of suit-land by donor---Tenant on the suit-land stated that he had been paying produce to donee, therefore, findings of two Courts that gift was not complete, was arrived at by ignoring or misreading of material evidence---Once transaction of gift and mutation in question were shown to have been duly proved it was for plaintiffs to lead satisfactory evidence to establish the contention that it was an outcome of fraud---No evidence was available in support of such plea, therefore, judgments and decrees passed by two Courts were set aside and suit was dismissed---Appeal was allowed.

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Art.129(e)---Mutation---Presumption---Mutation entries when incorporated in record of rights carry presumption of truth.

Hakim Khan v. Aurangzeb and another 1979 SCMR 625 rel.

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

----Art.46---Previous statement of deceased---Effect---Such statement in writing, under Art.46 of Qanun-e-Shahadat, 1984, is admissible in evidence.

(e) Islamic Law---

----Gift---Doctrine of Musha---Applicability---Making gift of share in un­-partitioned Khata---Validity---Such share can be lawfully alienated by way of gift and doctrine of Musha is not attracted.

Abdul Ahad and others v. Roshan Din and 36 others PLD 1979 SC 890 rel.

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

----S. 42---West Pakistan Land Revenue Act (XVII of 1967), S.42---Gift---Mutation of gift, assailing of---Plea of fraud and forgery---Ignorance of owner about mutation of gift---Owner gifted suit-land to his nephew, almost 24 years before his death and mutation of gift was attested---Plaintiff assailed the mutation being a result of fraud and forgery and also asserted that the owner did not have knowledge about the mutation---Trial Court dismissed the suit but Lower Appellate Court decreed the same---Judgment and decree passed by Lower Appellate Court was maintained by High Court in exercise of revisional jurisdiction---Validity---Plea that the owner did not know about disputed mutation was not believable for the reason that land owner was required to pay a number of government dues on each crop and it was not possible that till his death which occurred almost 24 years after the gift, the owner remained unaware of attestation of mutation---Tenant over suit-land stated that one year after the gift, the donee took back the suit-land from him but after two years, it was again given to him for cultivation and at that time consolidation had already taken place---Consolidation had taken place during the lifetime of the owner; since in consolidation, Wands (division of land) were made afresh, it was not possible for a land owner not to come to know of a transaction in which his property stood alienated in favour of somebody else-Judgments and decrees of Lower Appellate Court as well of High Court were set aside and the suit was dismissed---Appeal was allowed.

Ch. Khurshid Ahmed, Advocate Supreme Court for Appellants.

M. Munir Paracha, Advocate Supreme Court for Respondents.

Date of hearing: 30th October, 2006.

2007 S C M R 621

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

MUHAMMAD SAMI----Appellant

Versus

ADDITIONAL DISTRICT JUDGE, SARGODHA and 2 others----Respondents

Civil Appeal No.577 of 2002, decided on 3rd October, 2006.

(On appeal from the order, dated 22-6-2001 of the Lahore High Court, Multan Bench, passed in Writ Petition No.11398 of 2001).

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

----S.3---Limitation, question of---Duty of Court---Scope---Court is bound to notice question of limitation, irrespective of the fact, whether it was agitated or not.

Muhammad Buta v. Habib Ahmad PLD 1985 SC 153 rel.

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

----S. 12(2)---Limitation Act (IX of 1908), S.3---Judgment and decree, setting aside of---Plea of fraud and misrepresentation---Limitation, question of---Concurrent findings of fact by the Courts below---Decree passed in year, 1960, was assailed in year, 1986, by filing application under S.12(2) C.P.C.---Application was allowed by Trial Court and the order was maintained by Lower Appellate Court as well as by High Court exercising constitutional jurisdiction---Plea raised by appellant was that High Court had decided constitutional petition without deciding question of limitation---Validity---Any order or judgment passed by Trial, Appellate or Revisional Courts should be indicative of the fact that the courts concerned were not only aware but conscious regarding the question of limitation, dealt with the same with diligent application of mind prior to dilating upon and deciding the controversy on merit---Disposal on merit alone would not be sufficient to presume that the delay was condoned---Supreme Court by setting aside the order, remanded the case to High Court for deciding question of limitation, including any other question as might be deemed fit and proper for the just decision of the case---Appeal was allowed.

Ahsan Ali v. District Judge PLD 1969 SC 167 rel.

(c) Constitution of Pakistan (1973)--

----Art. 199---Civil Procedure Code (V of 1908), S.115---Constitutional and revisional jurisdiction of High Court---Scope---Reappraisal of evidence--- Principles--- While exercising constitutional/revisional jurisdiction, High Court can reappraise and revaluate the entire evidence only when finding is based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of facts and patent errors of law.

Ch. Muhammad Ashraf, Advocate Supreme Court for Appellant.

Nemo for Respondents Nos.1 and 2.

Muhammad Munir Paracha, Advocate Supreme Court for Respondent No.3.

Ch. Muhammad Akram, Advocate-on-Record for Respondent No.4.

Date of hearing: 3rd October, 2006.

2007 S C M R 626

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Raja Fayyaz Ahmad, JJ

MEHRA and others----Petitioners

Versus

Mst. RASOOLAN----Respondent

Civil Petition No.2580-L of 2001, decided on 14th November, 2006.

(On appeal from the judgment, dated 8-5-2001 of the Lahore High Court, Lahore, passed in Regular Second Appeal No.214 of 1969).

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

----S. 30---Limitation Act (IX of 1908), Art.10---Pre-emption suit---Limitation---Sale through deed registered on 5-1-1954---Delivery of possession of land to vendee by vendor on 14-12-1960 after compromise reached between them in another suit regarding subject sale---Attestation of mutation on 25-54963 on basis of such compromise decree---Suit by pre-emptor within one year of attestation of mutation---Validity---Factum of delivery of possession to vendee on 14-12-1960 was neither disputed nor challenged in cross-examination of vendee---Period of limitation in such case would be governed by Art.10 of Limitation Act, 1908 providing a period of one year from delivery of physical possession of property sold or where property did not admit of physical possession, then from date of registration of sale-deed---No distinction had been made in Art. 10 of Limitation Act, 1908 with respect to delivery of possession to vendee through decree of Court or under sale---Mutation attested by Revenue Officer would not enlarge time for instituting pre-emption suit from date of its attestation and not from date of delivery of possession under sale---Suit filed after one year of delivery of possession of land to vendee was hit by limitation---Suit was dismissed in circumstances.

S.M. Tayyab, Senior Advocate Supreme Court and Ch. Muhammad Anwar Khan, Advocate Supreme Court for Petitioners.

M. Naseem Sabir Ch., Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Respondent.

Date of hearing:14th November, 2006.

2007 S C M R 632

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

MEHAR KHAN MEO----Petitioner

Versus

HIGH COURT OF SINDH----Respondent

C.P.L.A. No.302-K of 2006, heard on 5th July, 2006.

Civil service---

----Recording of Annual Confidential Report---Successor competent authority was not debarred from recording adverse remarks if the former official had not recorded the Annual Confidential Report---Petitioner, Additional District Judge had sought leave to appeal against judgment passed by Service Tribunal dismissing his appeal against adverse remarks recorded by Chief Justice of High Court---Contention of petitioner was that Chief Justice who had recorded adverse remarks, was not acting as Chief Justice during the period he recorded adverse remarks against him---Contention was repelled as the fact remained that if the Annual Confidential Reports were not recorded by the former Chief Justice, successor Chief Justice was not debarred from recording the remarks for the period those were due in order to update record of an officer in due course of business----Petitioner was duly informed that Chief Justice had based his observations and formed an opinion on the basis of thorough enquiry from different District and Sessions Judges, under whom petitioner had worked; and also from his colleagues---Opinions formed by Chief Justice were found on different basis, as reputation of a judicial officer, whether good or had was never a secret. and it travelled very swiftly---Essentially, that being in exercise of administrative jurisdiction of the Chief Justice, Service Tribunal did not find any fault with such opinion and upheld the same---No substantial question of law of public importance was involved in the petition and no ground was made out for interference in the exercise of jurisdiction by the Service Tribunal, which on the face of it, was neither unreasonable or unfair nor contrary to the settled norms of justice and equity---Petition for leave to appeal was dismissed, in circumstances---Constitution of Pakistan (1973), Art.212(3).

Ghulam Qadir Jatoi, Advocate-on-Record/Advocate Supreme Court for Petitioner.

Date of hearing: 5th July, 2006.

2007 S C M R 635

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehntan Ramday and Raja Fayyaz Ahmed, JJ

Mst. SUBAN----Appellant

Versus

ALLAH DITTA and others----Respondents

Civil Appeal No.2046 of 2001, decided on 8th January, 2007.

(On appeal from the judgment, dated 15-8-2001 of the Lahore High Court, Bahawalpur Bench, Bahawalpur, passed in Civil Revision No.362-D of 1989/BWP).

(a) Islamic Law---

----Inheritance---Principles---Under Islamic law, as soon as someone who owns some property, dies, the succession to his property opens and property gets automatically and immediately vested in the heirs and such vesting was not dependent upon any intervention or any act on the part of Revenue Authorities or any other State agency---Efflux of time does not extinguish any right in inheritance because on the death of an owner of property, all inheritors, immediately and automatically become co-sharers in the property---Limitation starts running not from the time of death of predecessor-in-interest, nor even from the date of mutation, if there be any, but from the date when right of any such co-sharers / co-inheritors in such property was denied.

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

----S. 39---Record of rights---Mutation a proof of title---Scope---Mutation does not confer on anyone any right in any property as revenue record is maintained only for realization of land revenue and does not by itself confer any title on anyone.

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

----O. XLI, R. 4---Specific Relief Act (I of 1877), S.42---Suit for declaration of title---Relinquishment of right---Onus to prove---Minor co-sharers---Granting of relief to non-appealing parties---After his death, owner of suit property left behind a widow and two daughters and his landed property was situated in two different villages---In a family settlement, land in one village was mutated in the name of widow, while that in the other village was mutated in the name of two daughters, who were minors at that time---Some forty years later, nephews of deceased owner and his two daughters assailed mutation of inheritance attested in favour of widow---Trial Court dismissed the suit but Lower Appellate Court allowed the appeal and decreed the suit in favour of plaintiffs---High Court in exercise of revisional jurisdiction, set aside the judgment and decree passed by Lower Appellate Court and dismissed the suit---Validity---Lower Appellate Court was right in holding that plaintiffs could not have been non-suited on account of limitation---Onus was very heavily on the widow to establish relinquishment by other heirs of their rights in the property which burden she had not been able to discharge, because daughters of deceased owner were minor at the time of alleged family settlement and also because mutation in question proceeded on dishonest and incorrect premises---Supreme Court, in view of the provisions of O.XLI, R.4, C.P.C., which envisaged grant of relief even to non-appealing parties and also in discharge of obligations to do complete justice, declared that all those persons who qualified as heirs of deceased owner as per Sunni faith, at the time of his death, were entitled to their respective 'Sharai' shares in each and `every inch of land left behind by him---Judgment and decree passed by High Court was set aside---Appeal was allowed.

(d) Administration of justice---

----Relief, grant of---Principles---After a Court had determined all legal and factual issues struck in a civil case and when it reached final issue of grant of relief, then the court seized of lis had to consider not only its answers to such legal and factual issues but also and equally importantly, to keep in mind the dictates of morality, ethics, fairplay, justice and equity.

Mian Allah Nawaz, Advocate Supreme Court for Appellant.

M. Munir Peracha, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Respondent No.1.

Respondents Nos.2 to 9: Ex parte.

Date of hearing: 8th January, 2007.

2007 SCMR 641

[Supreme Court of Pakistan]

Present: Javed Iqbal and Nasir-ul-Mulk, JJ

ASHFAQ AHMED----Petitioner

Versus

THE STATE----Respondent

Criminal Petition 'No.85 of 2006, decided on 4th May, 2006.

(On appeal from the judgment, dated 27-2-2006 of the Lahore High Court, Lahore, passed in Criminal Appeal No.459 of 2000).

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

---S. 302(b)---Related witness---Effect---Merely on the basis of inter se relationship, statement of prosecution witness cannot be disbelieved---Intrinsic value of such evidence is required to be examined and not inter se relationship---Such relationship itself is no ground to disbelieve statement of prosecution witness, who otherwise is a truthful and trustworthy person.

Muhammad Amin v. The State 2000 SCMR 1784; Iqbal alias Bhala v. The State 1904 SCMR 1; Nazir v. The State PLD 1962 SC 269; Khalil Ahmad v. The State 1976 SCMR 161; Allah Ditta v. The State 1970 SCMR 734; Muhammad Akbar v. Muhammad Khan PLD 1988 SC 274 and Farmanullah v. Qadeem Khan 2001 SCMR 1474 rel.

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

----S. 302(b)---Interested witness---Scope---Interested witness is one who has a motive to falsely implicate accused---Such witness is a partisan and having some rancor or enmity against accused.

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence--Motive---Failure to prove---Lapses on the part of investigation agency---Effect---Accused was concurrently convicted and sentenced to death by Trial Court as well as by High Court---Plea raised by accused was that prosecution failed to prove motive against accused for 'committing murder---Validity---No lenient view should be taken merely on the ground that motive had not been proved by prosecution---Was not necessary for prosecution to prove motive irrespective of the fact whether it had been alleged or not---Certain lapses on the part of investigation could not be equated to that of dishonest investigation---Such procedural lapse could be ignored in view of eye account furnished by two prosecution witnesses---Evidence of such eye-witnesses had been rightly considered and relied upon by Trial Court and upheld by High Court after having gone through the entire evidence with diligent application of mind, which was not only in accordance with the settled norms of justice but also with precedent law---Prosecution had established the accusation by producing cogent and concrete evidence--Judgment passed by High Court being unexceptionable did not warrant interference---Leave to appeal was refused.

Zaheer Din v. State 1993 SCMR 1628; Jehanzaib v. State 2003 SCMR 98; Ashiq Hussain v. State 1993 SCMR 417; Safdar Ali v. Crown PLD 1953 .FC 93; Waris v. State PLD 1981 SC 127; Feroze Khan v. State 2002 SCMR 99'; Abdul Wahab v. State 1999 SCMR 1668; Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883; Muhammad Anwar v. State 2001 SCMR 51; Abbas Ali v. State 1987 SCMR 1855; Chandoo v. State 1986 SCMR 720; Nasim Ahmed Siddiqui v. Collector of Customs 1986 SCMR 1669; Tahir Abbas v. State 2003 SCMR 426; Yaqoob Shah v. State PLD 1976 SC 53; Muhammad Sharif v. State 1991 SCMR 1622; Nazir Ahmad v. State 1998 .SCMR 1768 and Muhammad Nasim v. State 1993 SCMR 189 ref.

Muhammad Sharif v. State 1991 SCMR 1622; Muhammad Yaqoob v. State 1992 SCMR 1983; Combind Enterprises v. Water and Power Development Authority PLD 1988 SC 39; Sajjad Hussain v. State 1997 SCMR 174 and Waris Khan v, The State 2001 SCMR 387 rel.

Naubahar v. State 1999 SCMR 637; Mir Khan v. Satbbirai 1968 SCMR 1225; Ghulam Utah v. State 1996 SCMR 1887; Muhammad Yaqoob v. State 1999 SCMR 1138 distinguished.

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

Nemo for Respondent.

Date of hearing: 4th May, 2006.

2007 SCMR 655

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Ch. Ijaz Ahmed, JJ

INAYAT KHAN and others----Petitioners

Versus

ALLAH DITTA and others----Respondents

C.P.L.A. No.2151-L of 2001, decided on 4th January, 2007.

(On appeal from the judgment/order, dated 13-4-2001 passed by the Lahore High Court, Lahore in R.S.A. No.303 of 1983).

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

----S. 8---West Pakistan Land Revenue Act (XVII of 1967), S.42---Civil Procedure Code (V of 1908), O.I, R.9---Constitution of Pakistan (1973), Art. 185 (3)---Recovery of possession---Non-joinder of necessary party---Entries in Record of Rights---Suit-land was mortgaged by predecessors-in-interest of plaintiffs in year 1924-25, in favour of two Hindu brothers---Dispute between mortgagors and mortgagees, for redemption of the suit-land, was resolved through arbitration and mutation was sanctioned in favour of mortgagees on the basis of award---After migration of mortgagees to India, the suit-land was declared as evacuee land and was allotted, in year, 1956 in favour of refugees from India, who further sold the land to defendants---Plaintiffs sought recovery of suit-land on the ground that sanction of mutation in favour of mortgagees was not in accordance with terms and conditions of the award announced by arbitrators---Suit was decreed in favour of plaintiffs by Trial Court as well as by Lower Appellate Court but High Court set aside concurrent judgments and decrees passed by two Courts below---Validity---Defendants purchased land in question from allottees before filing of suit by plaintiffs---Such fact was alone sufficient to come to the conclusion that defendants had not committed any fraud or misrepresentation at the time of purchasing land in question from allottees---Allottees had also not committed any fraud or misrepresentation at the time of allotment of land in question in their names---Land in question was treated as evacuee property which was allotted in year, 1956 and plaintiffs filed their suit without impleading Custodian of Evacuee Property as defendant in their suit, therefore, suit was liable to be dismissed---Longstanding entries in Jamabandis had presumption of truth, as disputed mutation was sanctioned in year, 1929, therefore, after partition, land in question was properly treated by authorities as evacuee---Plaintiffs filed suit with regard to determination of status of land in question before Civil Court, which court had no jurisdiction to take cognizance of the matter---Plaintiffs did not challenge the original order dated 30-9-1929, and also did not challenge the same well within time when land in question was treated as evacuee property---Supreme Court declined to exercise discretion in favour of plaintiffs---Leave to appeal was refused.

Muhammad Jamil Asghar's case PLD 1965 SC 698; S. Sharif Ahmad Hashmi's case 1980 SCMR 711; Zafar Iqbal's case NLR 1996 UC 452; Muhammad Ramzan's case NLR. 1995 UC 43; Haji Saifullah Khan's case PLD 1989 SC 166; Wali Muhammad's case PLD 1974 SC 106; Khawaja Sharif's case PLD 1988 Lah. 725; G.M. Malik's case 1990 CLC 1783; Nawab Syed Raunak Ali's case PLD 1973 SC 236 and Rana Muhammad Arshad's case 1998 SCMR 1462 rel.

(b) Administration of justice---

----He who seeks equity must come with clean hands and must be vigilant qua his rights.

Saeed-ur-Rehman Farrukh, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioners.

Mubbashir Latif Ahmad, Advocate Supreme Court and Mahmood-ul-Islam, Advocate-on-Record for Respondents.

2007 SCMR 661

[Shariat Appellate Jurisdiction]

Present: Justice Sardar Muhammad Raza Khan Chairman Justices Ch. Ijaz Ahmed, Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullundhari, Members

WAQAR NAZIR and others----Petitioners

Versus

THE STATE----Respondent

Criminal Shariat Petition No.35(S) of 2003 and Jail Shariat Petition No.1(S) of 2004, decided on 27th November, 2006.

(On appeal from the judgment, dated 24-10-2003 passed by the Federal Shariat Court, Lahore Bench, in Criminal Appeals Nos.137-L of 1999, 136-L of 2001 and 149-L of 1999 and Murder Reference No.5-L of 2000).

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

----Ss. 302(b), 324, 337-A(i) & 460---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17---Constitution of Pakistan (1973), Art.203-F(2B)---Reappraisal of evidence---Concurrent findings of fact by the courts below---Accused was convicted and was sentenced to death as Tazir, for committing murder---Federal Shariat Court, after appreciating evidence recorded by Trial Court, maintained the conviction and sentence awarded to accused---Validity---Supreme Court was not required to act as a court of appeal for reappraisal of evidence recorded by Federal Shariat Court, while exercising Constitutional powers unless and until Federal Shariat Court had re-appraised the evidence in violation of any provision of law or any principle laid down by Supreme Court---Supreme Court, in finding of fact recorded by Courts below or their arriving at concurrent conclusions, would not, normally, interfere to disturb the conclusions while exercising Constitutional powers unless and until the courts below had come to the conclusion in violation of any principle laid down by Supreme Court---No illegality or infirmity in the judgment passed by Federal Shariat Court having been found by Supreme Court, leave to appeal was refused.

Fazle Razaq's case 1985 SCMR 128 and Muhahid Hussain's case 1984 SCMR 54 rel.

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

----Art. 203-F(2B)---Petition for leave to appeal---Concurrent findings of fact by the courts below---Interference--- Principles---Supreme Court, as ultimate Court in the country, as a rule to give due weight and consideration to the opinion of courts below and in particular to the opinion of Court of first instance, which had the advantage of hearing the . parties, witnesses and watching their demeanour---Normally, Supreme Court does not interfere with findings of fact reached at by primary courts or Federal Shariat Court, when it is satisfied that findings of courts below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning appreciation of evidence.

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

----S. 342---Defence version---Benefit of doubt, extension of---Scope---Defence has only to make out a possibility of its version being true and is not required to prove its plea beyond reasonable doubt---Statement of accused in defence, if found reasonably possible from material on record then accused can be given benefit of doubt and acquitted---If reasonable possibility exists that defence plea might be true, same entitles the accused to benefit of doubt as of right---In case defence version received support from prosecution evidence, then benefit of doubt be given to accused.

Waris's case PLD 1981 SC 127; Safdar Ali's case PLD 1953 FC 93; Muhammad's case 1972 SCMR 264; Ghulam Muhammad's case PLD 1976 SC 241; Nadeem-ul-Haq Khan's case 1985 SCMR 510 and Shamala's case PLD 1958 SC (Pak.) 242 rel.

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

----Ss. 302(b) & 460---Criminal Procedure Code (V of 1898), S.342---Constitution of Pakistan (1973), Art.203-F(2B)---Reaappraisal of evidence---Defence version---Benefit of doubt---Plea raised by accused during trial was that he had been falsely involved in case due to enmity with prosecution witnesses one of whom happened to be an uncle of complainant---Although version of accused was established by the evidence of other prosecution witnesses, yet Trial Court convicted the accused and sentenced him to life imprisonment---Conviction and sentence awarded by Trial Court was maintained by Federal Shariat Court---Validity---Both the courts had convicted the accused in violation of principles laid down by Supreme Court and benefit of doubt should have been given to him---Benefit of doubt must have been given to accused instead of prosecution but both the courts below had failed to consider such aspect of the case at all---Supreme Court converted petition for leave to appeal into appeal and set aside the conviction and sentence awarded by the courts below resultantly accused was acquitted---Appeal was allowed.

M. Bilal, Senior Advocate Supreme Court for Petitioner (in Criminal Petition No.35(S) of 2003).

Sardar M. Siddique, Advocate Supreme Court for Petitioner (in Jail Petition No. 1(S) of 2004).

Dil Muhammad Tarar, Advocate Supreme Court for the State (in both cases).

Date of hearing: 27th November, 2006.

2007 S C M R 670

[Shariat Appellate Jurisdiction]

Present: Justice Sardar Muhammad Raza Khan, Chairman Justices Ch. Ijaz Ahmed, Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullundhari, Members

MUHAMMAD PERVEZ and others----Appellants

Versus

THE STATE and others----Respondents

Criminal Appeal No.16(S), 17(S) of 2005 and Jail Petition No.63(S) of 2004, decided on 28th November, 2006.

(On appeal from the judgment, dated 14-11-2003 passed by the Federal Shariat Court, Islamabad, in Criminal Appeals Nos.272-I and 283-I of 2002).

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

----Ss. 395, 396, 397, 412 & 148---Criminal Procedure Code (V of 1898), S.164---Reappraisal of evidence---Judicial confession---Unexplained delay---Exculpatory statement---Return of accused to police custody after recording their confession---Accused, after their arrest, were subjected to torture and thereafter confessional statement was recorded before Magistrate---Trial Court as well as Federal Shariat Court mainly relied upon the confessional statement of accused and convicted and sentenced them to life imprisonment---Plea raised by accused was that confessional statement was recorded with unexplained delay and was a result of torture---Validity---Delay of over 24 hours would normally be fatal to acceptance of judicial confession and prosecution failed to explain the delay in recording of confessional statement---Such delay created doubt regarding confessional piece of evidence---Mere delay of 24 hours in recording confessional statements was not fatal but surrounding circumstances were also to be considered regarding believing or not believing confessional statement---Accused were tortured by police, therefore, courts below were not justified to come to the conclusion that confessional statement was voluntarily made by accused---Accused, after recording of confessional statement were handed back to police, such type of confession was irrelevant---Accused remained in police custody before and after recording confession for 24 hours and Magistrate had taken only one hour to record confession of the accused, such type of confession would not fall in the category of voluntary confession---Both the courts below erred in law to accept confessional statement, which was exculpatory in nature---Statements of eye-witnesses-was not in consonance with each other and there were material contradictions and improvements in their statements which were not noted by Federal Shariat Court in their true perspective---Person making improvements could not be held worthy of credence---Supreme Court converted petition for leave to appeal into appeal and set aside the conviction and sentence awarded to accused by the courts below---Appeal was allowed.

Haq Nawaz and another v. State 2000 SCMR 785; Mehmood Ahmed and 2 others v. State 1995 SCMR 127; Walayat and another v. State 1984 SCMR 530; Bashir Ahmed's case 1999 SCMR 114; Syed Azmat Ali Shah and another v. State PLD 1999 Pesh. 39; Muhammad Fazal's case 2006 SCMR 143; Muhammad Mansha's case 2001 SCMR 199; Tariq Hussain Shah's case 2003 SCMR 98 and Manjeet Singh v. State PLD 2006 SC 30 ref.

Naqeebullah's case PLD 1978 SC 21; Khan Muhammad's case 1981 SCMR 597; Khuda Bakhsh's case 1969 SCMR 390; Suleman Shah's case PLD 1971 SC 751; Muhammad Shafique Ahmad's case PLD 1981 SC 472; Roshin's case PLD 1977 SC 557 and Shahbaz Khan Jakhrani's case 1984 SCMR 42 rel.

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

----Art. 22---Identification parade---Validity---If role of accused was not described by witnesses at identification parade, such type of identification loses its value and cannot be relied upon---If prosecution witnesses had seen the accused before identification parade, such piece of evidence of identification parade can also not be relied upon.

Ghulam Rasool's case 1988 SCMR 557 and Mehmood Ahmad's case 1995 SCMR 127 rel.

(c) Criminal trial---

----Unrelated witness---Effect---Witness not related to deceased does not necessarily prove that he is a witness of truth---Intrinsic worth of statement of any witness is the test of his veracity.

(d) Criminal trial---

----Injured prosecution witness---Effect---Injuries on a prosecution witness are only indication of his presence at the spot but are not affirmative proof of his credibility and truth.

Said Ahmad's case 1981 SCMR 795 rel.

(e) Criminal trial---

----Each and every case is to be decided on its own peculiar circumstances and facts.

Trustees of Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 rel.

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

----Art. 203 F(2B)---Appeal to Supreme Court---Concurrent findings of fact by the courts below---Interference by Supreme Court'---Principles---Supreme Court normally does not interfere in concurrent conclusions arrived at by the courts below awarding conviction and sentence---If the courts below awarded conviction and sentence while reappraising evidence in violation of the law laid down by Supreme Court, then in such situation it is difficult to avoid the impression that conclusion reached by the courts below suffered from serious errors of law and fact, which unless set right is likely to result in miscarriage of justice.

(g) Criminal trial---

----Conviction---Solitary statement of eye-witness---Scope---Conviction can. be awarded on the sole statement of one eye-witness subject to the condition that his statement inspires confidence.

Saeed Akhtar Khan, Advocate Supreme Court and Ch.Akhtar Ali Advocate-on-Record for Appellants (in Criminal Appeal No.16(S) of 2005).

Dr. M. Aslam Khaki, Advocate Supreme Court for Appellant (in Criminal Appeal No.17(S) of 2005).

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Petitioner (in Jail Petition No.63(S) of 2004).

Sardar M. Ghazi, Advocate Supreme Court for the Complainant (in all cases).

Sardar Shaukat Hayat, Additional Advocate-General and Pir Liaquat Ali Shah, Advocate-General for the State (in all cases).

Date of hearing: 28th November, 2006.

2007 S C M R 682

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

C.P.L.A. No.2287 of 2005

MUHAMMAD IQBAL and others----Petitioners

Versus

EXECUTIVE DISTRICT OFFICER (REVENUE), LODHRAN and another----Respondents

(On appeal from judgment of Lahore High Court, Multan Bench, Multan dated 28-7-2005 passed in I.C.A. No.14 of 2005).

C.P.L.A. No.2288 of 2005

MUHAMMAD IQBAL and others----Petitioners

Versus

EXECUTIVE DISTRICT OFFICER (REVENUE), LODHRAN and another----Respondents

(On appeal from judgment of Lahore High Court, Multan Bench, Multan dated 28-7-2005 passed in I.C.A. No.15 of 2005).

C.P.L.A. No.2289 of 2005

MUHAMMAD IQBAL and others----Petitioners

Versus

EXECUTIVE DISTRICT OFFICER (REVENUE), LODHRAN and another----Respondents

(On appeal from judgment of Lahore High Court, Multan Bench, Multan dated 28-7-2005 passed in I.C.A. No.16 of 2005).

C.P.L.A. No.2290 of 2005

MUHAMMAD IQBAL and others----Petitioners

Versus

EXECUTIVE DISTRICT OFFICER (REVENUE), LODHRAN and another----Respondents

(On appeal from judgment of Lahore High Court, Multan Bench, Multan dated 28-7-2005 passed in I.C.A. No.17 of 2005).

C.P.L.As. Nos.2287, 2288, 2289 and 2290 of 2005, decided on 11th January, 2007.

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

----S. 9---Punjab Service Tribunals Act (IX of 1974), S.4---Promotion--Eligibility---Determination---Jurisdiction of Service Tribunal---Scope---What is barred from jurisdiction of Service Tribunal is question of fitness of civil servant for promotion---Determination of eligibility of civil servant is the question on which jurisdiction of Service Tribunal has not been barred---Fitness essentially introduces an element of objective evaluation on the basis of objective criteria where substitution for an opinion of competent authority is not possible by that of a Tribunal or a Court.?

Abdul Malik v. Sabir Zameer Siddiqui 1991 SCMR 1129; Abdul Ghafoor v. National Highway Authority 2002 SCMR 574; Zafarullah Baloch v. Government of Balochistan 2002 SCMR 1056 and Tasleem Jan v. Muhammad Zaman 2005 PLC (C.S.) 610 rel.

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

----S. 9---Punjab Service Tribunals Act (IX of 1974), S.4(1), proviso (b)---Promotion---Competent authority and Service Tribunal---Jurisdiction---Comparison---Right has been conferred in S.9 of Civil Servants Act, 1973, on a civil servant to be considered for promotion, if he is eligible on account of the fact that he possesses prescribed minimum qualification but he has no vested right to be promoted; in contrast, law-makers in proviso (b) to S.4(1) of Punjab Service Tribunals Act, 1974, have not used the word "eligible" but have employed the words "fitness or otherwise to be appointed or to hold a particular post or to be promoted to a higher post or grade"---Question of eligibility, which is a term of service by virtue of S.9(1) of Civil Servants Act, 1973, has not been excluded from the purview of jurisdiction of Service Tribunal but the questions whether a person having requisite eligibility has been rightly selected or not, selected on account of fitness or otherwise for appointment to hold a particular post or to be promoted to a higher post or grade, has been excluded.?

(c) Punjab Civil Servants Act (XIII of 1974)---

----S. 9---Punjab Revenue Department (Revenue Administration Posts) Rules, 1990---Constitution of Pakistan (1973), Arts.185(3), 199 & 212---Promotion---Constitutional jurisdiction of High Court, exercise of---Civil servants being aggrieved of the decision of authorities filed constitutional petitions, which were allowed by High Court and case was remanded to authorities with certain directions---Judgment passed by single Judge of High Court was maintained by Division Bench of High Court---Plea raised by petitioner was that in view of bar contained in Art.212 of the Constitution, High Court did not have any jurisdiction over the matter---Validity---Though question of promotion rested within the jurisdiction of competent authority, which could not be ordinarily interfered with by a Court of law but where the authority competent to award promotion or to appoint to a particular post acted in violation of law, in excess of jurisdiction, without jurisdiction or in colourable exercise of powers conferred on it extraordinary jurisdiction of High Court in terms of Art.199 of the Constitution, could always be invoked for redressing the wrong---Supreme Court declined to agree with the petitioner that it was not a fit case for interference by High Court in exercise of constitutional jurisdiction---High Court had not substituted its own decision for the act of authorities, therefore, such plea was preposterous and not relevant---Leave to appeal was refused.?

Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539 ref.

Syed Aaqa Asif Jafari, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 11th January, 2007.

2007 S C M R 687

[Supreme Court of Pakistan]

Present: M. Javed Buttar and Ch. Ijaz Ahmed, JJ

MUHAMMAD SHARIF----Petitioner

Versus

MUHAMMAD ANWAR and others----Respondents

C.P.L.A. No.4003-L of 2002, decided on 10th January, 2007.

(On appeal from the judgment/order, dated 3-10-2002 passed by the Lahore High Court, Lahore in Civil Revision No.354-D of 1996).

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

----S. 12---Specific performance of agreement to sell---Jurisdiction of Court---Scope---Jurisdiction under S.12 of Specific Relief Act, 1877, is discretionary and equitable in nature.

Ghulam Nabi's case PLD 1983 SC 344; Syed Arif Shah's case PLD 1991 SC 905; Mrs. Mussarat Shaukat Ali's case 1994 SCMR 2189; Abdul Karim's case 1973 SCMR 225 and Irshad Hussain's case PLD 1994 SC 326 rel.

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

----Ss. 12 & 27(b)---Transfer of Property Act (IV of 1882), S.41---Constitution of Pakistan (1973), Art. 185 (3)---Specific performance of agreement to sell---Bona fide purchaser for valuable consideration without notice, principle of---Ostensible owner, purchase from---Plaintiff claimed to have entered into agreement to sell by the person authorized by owners and had made part payment---Grievance of plaintiff was that the suit property was instead sold to defendants---Trial Court decreed the suit in favour of plaintiff but Lower Appellate Court allowed the appeal to the extent of recovery of payment made by plaintiff and declined to grant decree for specific performance of agreement to sell, as the suit property had already been sold to defendants vide a registered sale­-deed---Judgment and decree passed by Lower Appellate Court was maintained by High Court---Validity---Both the courts below refused to exercise discretion in favour of plaintiff. concurrently with cogent reasons as owners had sold the suit property to defendants and registered sale-deed was also executed---Registered document had sanctity attached to it and stronger evidence was required to cast aspersion on its genuineness---Plaintiff failed to bring the case within the parameters prescribed by the Legislators in their wisdom in, S.27 (b) of Specific Relief Act, 1877, and S.41 of Transfer of Property Act, 1882---Supreme Court declined to exercise discretion in favour of plaintiff as registered sale-deed had been executed by owners in favour of defendants with regard to suit property before purchasing the same by plaintiff, coupled with the fact that plaintiff did not make any inquiry before purchasing suit property and as such he did not deserve any discretionary relief---Leave to appeal was refused.

Abdul Aziz's case 1994 SCMR 111; Mirza Muhammad Sharif's case 1993 SCMR 462; Muhammad Afzal's case PLD 2006 SC 84; Khuda Bukhsh v. Muhammad Sharif and another 1974 SCMR 279 and Haji Saifullah Khan's case PLD 1989 SC 166 rel.

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

----Art. 185(3)---Petition for leave to appeal---Findings of fact---Misreading and non-reading of evidence---Onus to prove---Supreme Court does not normally meddle in finding of fact recorded by High Court, unless it can be shown that the finding is apparently against evidence or so patently improbable or perverse that to accept it, would amount to perpetuating a grave miscarriage of justice or if there has been any misapplication of any principle relating to appreciation of evidence or finally, if finding could be demonstrated to be physically impossible---Such being the practice and rule of Supreme Court in civil petition, the burden lies heavily on petitioner to show that the findings recorded by High Court are not sustainable on record and should be interfered with by Supreme Court---Such would be notwithstanding that a different view might also be possible---Constitutional jurisdiction is discretionary in character.

Iqbal Ahmed Qureshi, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2007 S C M R 693

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Falak Sher, JJ

SALMAN FARUQUI----Appellant

Versus

JAVED BURKI, AUTHORIZED OFFICER, SECRETARY, MINISTRY OF WATER AND POWER, GOVERNMENT OF PAKISTAN, ISLAMABAD and another----Respondents

Civil Appeal No.50I of 2002, decided on 15 January, 2007.

(On appeal from the judgment, dated 30-6-1999 passed by the Federal Service Tribunal, Islamabad in Appeal No.504(R) of 1998).

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

----R. 5(1)(ii)---Departmental inquiry---Holding or non-holding of---Principles---It is prior in sequence and calls upon authorized officer to hold an inquiry, if facts of the case so demand or if it is considered necessary in the interest of justice---Whether an inquiry needs to be held or not, in the given conditions, is a judicial discretion, which must be exercised if conditions given in R.5(1)(ii) of Government Servants (Efficiency and Discipline) Rules, 1973, are satisfied.

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

----R. 5(1)(ii) & (iii)---Dismissal from service---Departmental inquiry non-holding of---Effect---Disputed questions of fact---Grievance of civil servant was that without holding any departmental inquiry, authorized officer imposed major penalty and dismissed him from service---Validity---Charge-sheet against civil servant pertained to serious, intricate, disputed and denied questions of fact---No. prudent man, in such circumstances, could reach to conclusion that all such allegations of fact were true, without being proved and if not proved through holding a regular inquiry it was violative of interest of justice---Where charges were serious, pertaining to intricate question of fact and where penalty of dismissal from service was likely to be imposed, a regular inquiry had to be conducted to prove such disputed questions of fact---By resorting to provisions of R.5(1)(iii) of Government Servants (Efficiency and Discipline) Rules, 1973, authorized officer condemned the civil servant unheard---Only remedy was to have a recourse to the principles of natural justice and to hold inquiry under R.5(1)(ii) of Government Servants (Efficiency and Discipline) Rules, 1973, which was wrongly dispensed with under R.5(1)(iii)---Judgment passed by Service Tribunal was set aside and the case was remanded to competent authority to hold regular inquiry within the contemplation of R.(1)(ii) of Government Servants (Efficiency and Discipline) Rules, 1973, and thereafter to proceed and pass order in accordance with law---Appeal, was allowed.

Fakhruddin G. Ebrahim, Senior Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Appellant.

Nasir Saeed Sheikh, Deputy Attorney-General with Ch. Muhammad Akram, Advocate-on-Record for Respondents.

Date of hearing: 15th January, 2007.

2007 S C M R 698

[Shariat Appellate Jurisdiction]

Present: Justice Javed Iqbal, Chairman Justices Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed, Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullundhari, Members

SAIN----Petitioner

Versus

THE STATE----Respondent

Jail Shariat Petition No.44 of 2005, decided on 30th November, 2006.

(On appeal from the judgment, dated 22-7-2004 passed by the Federal Shariat Court in Criminal Appeal No.141/I of 2003).

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

----S. 377---Constitution of Pakistan (1973), Art.203-F(2B)---Federal Shariat Court after reappraising the evidence had upheld the conviction and sentence awarded to the accused by Trial Court---Impugned judgment did not suffer from any illegality or infirmity---Prosecution witnesses had made statements in line with each other---Discrepancies pointed out in evidence were extremely insignificant which pertained to extraneous details of the case and did not reflect in any manner on the truthfulness of the prosecution version---Defence version neither appealed to reason nor appeared to be truthful---Courts below had neither omitted from consideration any evidence nor misread any material evidence on record while convicting the accused---Doctor had given opinion against the accused with regard to the offence of sodomy in view of the principles of medical jurisprudence---Report of the Chemical Examiner was positive---Supreme Court normally did not interfere in the concurrent findings of the Courts below while exercising constitutional power---Leave to appeal was refused to accused in circumstances.

Medico-legal Dictionary by DR. M.H. Cheema and Pir S.A. Rashid; Medical Jurisprudence and Toxicology by Dr. S. Saddiq Hussain; Principles and Practice of Medical Jurisprudence by A. Keith Mant and Noora's case PLD 1973 SC 469 ref.

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

----S. 377---Unnatural offence---Scope---Unnatural offence consists of penetration of the penis into the anus and mere penetration suffices to establish the offence---Proof of ejaculation is not necessary for conviction.

Principles and Practice of Medical Jurisprudence by A. Keith Mann ref.

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

----Arts. 185 & 203-F---Appellate jurisdiction of Supreme Court---Concurrent findings of lower Courts---Supreme Court does not, normally, interfere in the concurrent conclusions arrived at by the Courts below while exercising constitutional jurisdiction.

Noora's case PLD 1973 SC 469 ref.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Petitioner.

Complainant in person.

Ch. Munir Sadiq, Deputy Prosecutor-General, Punjab for the State.

Date of hearing: 30th November, 2006.

2007 S C M R 703

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

CHAIRMAN, SYNDICATE UNIVERSITY OF PESHAWAR and another----Petitioners

Versus

DIL NAWAZ KHAN----Respondent

Civil Petition No.285-P of 2005, decided on 13th November, 2006.

(On appeal from the judgment, dated 13-5-2005 of the Peshawar High Court Peshawar passed in Civil Revision No.1007 of 2004).

University of Peshawar Act (II of 1974)---

----S. 27(1)---University of Peshawar Employees Efficiency and Discipline Statutes, 1977, Ss.4, 5, 6 & 29---Constitution of Pakistan (1973), Art.185(3)---Removal from service---Registrar of the University, jurisdiction of---Concurrent findings of fact by the courts below---Respondent was employee of University in Basic Pay Scale-14 and was removed from ser ice by Registrar, which order was also maintained in departmental appeal---Aggrieved from' order of removal from service, respondent filed civil suit which was dismissed by Trial Court but was allowed in appeal reinstating the respondent in service with back benefits---Judgment and decree passed by Lower Appellate Court was maintained by High Court in exercise of revisional jurisdiction---Validity---Respondent was working in Basic Pay Scale-14, Head of Department being authorized officer was competent to appoint Inquiry Officer and to issue show-cause notice and Vice-Chancellor was competent to pass order for his removal from service---Registrar of the University was not vested with such power and being incompetent, his entire actions were found without lawful authority---Show-cause notice and order of removal from service issued by the Registrar were rightly set aside by Lower Appellate Court and maintained by High Court---No regular inquiry was conducted against respondent in the matter---Authorities failed to refer from University of Peshawar Act, 1974 and University of Peshawar Employees Efficiency and: Discipline Statutes, 1977, any provision showing that the Registrar had any power to issue show-cause notice or order removal from service---Interference in concurrent findings recorded by the courts below, was declined by Supreme Court---Leave to appeal was refused.

Mian Saadullah Janduli, Advocate Supreme Court for Petitioners.

Abdul Qadar Khattak, Advocate Supreme Court for Respondent.

2007 SCMR 707

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Ch. Ijaz Ahmed, JJ

MUHAMMAD SHARIF----Petitioner

Versus

SETTLEMENT COMMISSIONER and others----Respondents

C.P.L.A. No.549-L of 2001, decided on 5th January, 2007.

(On appeal from the judgment/order, dated 19-10-2000 passed by the Lahore High Court, Lahore in Writ Petition No.677/R of 1980).

(a) Displaced Persons (Land Settlement) Act (XLVII of 1958)---

----Ss. 10, 11 & 14(1-A)---Allotment to informant---Status of land---Agricultural land converted into building site---Petitioner being informant sought allotment of land in question against his pending urban units---Settlement Authorities rejected the application of petitioner on the ground that status of land in question was changed from agricultural land to building site---Decision of Settlement Authorities was upheld by High Court in exercise of Constitutional jurisdiction---Validity---Deputy Settlement Commissioner in exercise of power as Notified Officer had no jurisdiction to make allotment of land which had acquired status of building site for the satisfaction of claim of informant---Allotment made by Notified Officer in terms of 5.14 (1-A) of Displaced Persons (Land Settlement) Act, 1958, without giving effect to notification dated 16-5-1973 would be without jurisdiction, which could not be validated in constitutional petition---High Court had ,decided the case in terms of dictum laid down by Supreme Court---Constitutional jurisdiction being discretionary in nature, Supreme Court declined to exercise its discretion in favour of petitioner---Leave to appeal was refused.

Muhammad Ramzan's case 1997 SCMR 1635; Bashir Ahmad's case 1991 SCMR 377 and Mirza Zafar Ali's case 2005 SCMR 985 ref.

Nawab Sayed Raunak Ali's case PLD 1973 SC 236 rel.

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

----Arts. 189 & 190---Judgment of Supreme Court is binding on each and every organ of the State, by virtue of Arts.189 & 190 of the Constitution.

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

----Art. 185(3)---Petition for leave to appeal in a civil matter---Misreading and non-reading of record---Onus to prove---Supreme Court does not normally go behind the findings of fact recorded by High Court, unless it can be shown that such findings are against the evidence or so patently improbable, or perverse thereto accept them, would amount to perpetuating a grave miscarriage of justice or if there has been any misapplication of any principle relating to appreciation of evidence or finally, if the finding could be demonstrated to be physically impossible---Such being the practice and rule of Supreme Court in civil petition, the burden lies rather heavily on the petitioner to show that the findings recorded by High Court are not sustainable on record and should be interfered with by Supreme Court---Such would be notwithstanding that a different view might also be possible.

Ihsan-ul-Haq Chaudhry, Advocate Supreme Court and Ch. Talib Hussain, Advocate-on-Record for Petitioner.

A.R. Shaukat, Senior Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for Respondent No.3.

2007 S C M R 712

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Nasir-ul-Mulk and Syed Jamshed Ali, JJ

THE STATE through Advocate-General, N.-W.F.P.----Petitioner

Versus

ZAIDI----Respondent

Criminal Petition No.95/P of 2003, decided on 15th December, 2006.

(Against the judgment, dated 8-5-2003 passed by Peshawar High Court, Peshawar in Criminal Appeal No.393 of 2000).

Penal Code (XLV of 1860)---

----Ss. 302(b) & 324---Constitution of Pakistan (1973), Art.185(3),---Petition for leave to appeal against acquittal---Findings of fact arrived at by High Court acquitting the accused were not against the weight of evidence brought on record---Accused was not attributed any specific injury on the person of the deceased, rather he was attributed general firing---Co-accused who was attributed similar role had absconded and had been killed before conclusion of trial in the case---Reasons given by High Court for acquitting the accused were neither perverse nor arbitrary nor against the evidence led by the prosecution---Findings of acquittal were unexceptionable---Petition was dismissed accordingly.

M. Zaman Bhatti, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 15th December, 2006.

2007 S C M R 714

[Shariat Appellate Jurisdiction]

Present: Justice Javed Iqbal, Chairman, Justices Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullundhari, Members

GUL SADBAR----Appellant

Versus

MALIK-UD-DIN and another----Respondents

Criminal Appeal No.7(S) of 2004, decided on 17th November, 2006.

(On appeal from the judgment, dated 2-4-2002 of the Federal Shariat Court, Islamabad passed in Criminal Appeal No.193/I of 2000).

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

----S. 302(b)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)---Constitution of Pakistan (1973), Art.203-F(2B)---Leave to appeal was granted by Supreme .Court to the complainant against acquittal of accused by the Federal Shariat Court to reappraise the evidence in its true perspective.

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

----S. 302(b)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)---Constitution of Pakistan (1973), Art.203-F(2B)---Appeal against acquittal---Appraisal of evidence---Case was exclusively based on circumstantial evidence---All the circumstances taken together pointed only towards the accused who was complainant in the F.I.R. and it did not appeal to reason that the assailants mentioned in the F.I.R. who had come from another village and succeeded in even entering the house of their runaway enemies would kill only the deceased lady and would runaway despite the fact that their enemies were available unarmed in the house as an easy target---What was depicted by the complainant in the F.I.R. was not only unnatural and unbelievable, but was utterly beyond the cultural norms of enmity in the area---Lodging of an absolutely false F.I.R. by the accused had pointed out towards his guilt---Another circumstance indicative of the guilty mind of the accused was that he did not contact the police in connection with the progress of his own F.I.R. and made himself scarce to the police---Contact of the accused with the witnesses of the extra-judicial confession was most natural being the only way to his survival---Extra-judicial confession made by accused sounded quite natural which was further supported by the fact that he was produced before the police by the same witnesses---Families had cordial relationship and no husband would bring about a capital charge against the real brother of his wife unless it was absolutely true and this circumstance had further supported the prosecution story---Accused had led to the recovery of the pistol, weapon of offence---Once the offender had made up his mind to commit a murder, it was immaterial for him whether the weapon belonged to him or not or whether it was a licensed one or not---All the circumstances taken together had formed a chain of events which pointed towards the guilt of the accused alone and did not admit of any other hypothesis indicative of his innocence---Impugned judgment of acquittal was consequently set aside and the accused was convicted under S.302(b), P.P.C.---Since the case was based purely on circumstantial evidence, normal penalty of death would not be in the interest of justice and the accused was sentenced to imprisonment for life---Vaginal swabs of the deceased no doubt, were found stained with semen, but as semen could be retained for a reasonable duration, accused only could not be held responsible for Zina-bil-Jabr and he was acquitted of the charge under S.10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

S. Zafar Ali Shah, Advocate Supreme Court for Petitioner.

Arshad Ali Chaudhry, Advocate Supreme Court/Advocate-on-Record for Respondent No.1.

Ch. Munir Sadiq, Deputy Prosecutor-General, Punjab for the State.

Date of hearing: 17th November, 2006.

2007 S C M R 719

[Supreme Court of Pakistan]

Present: Javed Iqbal, Abdul Hameed Dogar and Ch. Ijaz Ahmed, JJ

SUBA KHAN and another----Petitioners

Versus

Hafiz MIAN MUHAMMAD----Respondent

Civil Petition No.1429 of 2004, decided on 5th December, 2006.

(On appeal from the judgment, dated 5-4-2004 passed by the Lahore High Court, Rawalpindi Bench, in Civil Revision No.218-D of . 2001).

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

----S. 13---Talb-i-Muwathibat and Talb-e-Ishhad---Whether or not plaint must mention time, date and place of performance of such Talbs---Divergent views on such question by different Benches of Supreme Court consisting of three and five Judges---Constitution of larger Bench emphasized to resolve such controversy.

1991 SCMR 2001; 2001 SCMR 1651; Haji Noor Muhammad's case 2000 SCMR 329; Azmatullah's case 2005 SCMR 1201; Abdul Qayyum's case 2001 SCMR 798; Ameer Jan's case PLD 1997 SC 883; Allah Bakhsh's case 2004 SCMR 1580; Muhammad Ilyas's case 1999 SCMR 958; Altaf Hussain's case 2000 SCMR 314; Sar Anjam's case 1999 SCMR 2167; Hayat Muhammad's' case 2006 SCMR 1410; Haji Lal Shah's case 2004 SCMR 409; Atiq-ur-Rehman's case PLD 2006 SC 309; Muhammad Saleem's case PLD 2003 SC 315; Muhammad Siddique's case 2005 SCMR 1231; Gul Hussain Shah's case 1996 SCMR 294; Shafi Muhammad's case 1996 SCMR 346; Akbar Ali Khan's case 2005 SCMR 431 and Khani Zaman's case PLD 1998 SC 121 ref.

(b) Precedent---

----Each and every case is to be decided on its own peculiar facts and circumstances---Case is only an authority for what it actually decides.

Muhammad Saleem's case 1994 SCMR 2213 fol.

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

----Art. 185---Justice done to parties by High Court---Effect---Jurisdiction of Supreme Court under Art.185 of the Constitution is discretionary in character---Supreme Court would decline to exercise jurisdiction in favour of petitioner where justice had been done to parties by High Court.

Nawabzada Raunak Ali's case PLD 1973 SC 236 rel.

Malik Muhammad Kabir, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record, for petitioners.

Nemo for Respondent.

Date of hearing: 5th December, 2006.

2007 S C M R 724

[Supreme Court of Pakistan]

Present: Javed Iqbal, Abdul Hameed Dogar and Ch. Ijaz Ahmed, JJ

ASSAR ALI SHAH through L.Rs. and 2 others----Appellants

Versus

Syed MUZAFFAR DIN Shah and 4 others----Respondents

Civil Appeal No.2161 of 2004, decided on 6th December, 2006.

(On appeal from the judgment, dated 24-2-2004 of the Peshawar High Court Bench Abbottabad in Civil Revision No.2 of 1997).

Civil Procedure Code (V of 1908)--

----S. 148 & O.XX, R.14(1)-Decree in pre-emption suit---Non-deposit of pre-emption money within specified time--Trial Court in decree specified that for such non-deposit, decree would be null and void---Application for allowing deposit of such money made before Appellate Court after two months of such specified time---Decree-holder neither filed application for condonation of delay nor made any request for extension of time---Decree-holder did not advance any reason for delay in depositing such money-Application for deposit of such money was dismissed in circumstances.

Sh. Wazir Muhammad, Advocate Supreme Court for Appellants.

Muhammad Munir Peracha, Advocate Supreme Court for Respondents.

Date of hearing: 6th December, 2006.

2007 S C M R 726

[Supreme Court of Pakistan]

Present: Javed Iqbal and Raja Fayyaz Ahmed, JJ

FARIDA ZAFAR ZEHRI and others----Petitioners

Versus

FEROZA KHANUM and others----Respondents

Civil Petition No.168/Q of 2006, decided on 27th December, 2006.

(On appeal from the judgment, dated 6-10-2006 of the High Court of Balochistan, Quetta passed in Civil Revision No.96 of 2006).

Civil Procedure Code (V of 1908)---

----S. 12(2), O.XIV, R.1, O.XVI, R.1 & O.XXIII, R.1---Dismissal of suit as withdrawn at request of plaintiff's attorney---Application for setting aside of such order on ground of fraud and breach of trust by attorney---Denial of such allegations by respondent---Non-framing of issues by Trial Court---Dismissal of application for non-filing of list of witnesses and non-production of evidence on date fixed for applicant's evidence---Validity---No evidence could be produced in absence of issues, which in such case essentially to have been framed in view of the pleadings of the parties giving rise to substantial questions of facts---Even in absence of list of witnesses and failure to produce evidence on such date, Trial Court was expected to have framed issues on such date instead of non-suiting applicant and then to have directed him to produce evidence---Impugned order was set aside in circumstances.

Mumtaz Yousaf, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

2007 S C M R 729

[Supreme Court of Pakistan]

Present: Ch. Ijaz Ahmed and Hamid Ali Mirza, JJ

REHMATULLAH and others----Petitioners

Versus

SALEH KHAN and others----Respondents

Civil Petition No.1081 of 2006, decided on 11th December, 2006.

(On appeal from the judgment, dated 13-9-2006 passed by the Peshawar High Court D.I. Khan Bench, in Civil Revision No.118 of 2003).

(a) Constitution of Pakistan, 1973---

----Art. 185---Appeal to Supreme Court---Fresh plea---Not allowable to be raised before Supreme Court---Principles.

Ashfaqur Rehman's case PLD 1971 SC 766 and John E. Brownlee's case AIR 1940 PC 219 ref.

(b) Pleadings---

----Parties would be bound by their pleadings.

Mst. Murad Begum's case PLD 1974 SC 322 rel.

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

---Ss. 8 & 42---Transfer of Property Act (IV of 1882), S.54---West Pakistan Land Revenue Act (XVII of 1967), S.42---Suit for declaration and possession of land---Mutation of sale---Vendor, an illiterate woman---Statement of Lambardar before Revenue Officer that vendor had admitted receipt of Rs.240 as sale price---Statement of vendor before Revenue Officer that she could not tell as to how much amount she had received---Vendee alleged that vendor had received Rs.1,000 as sale price---Vendor having died in the meanwhile, Revenue Officer in view of such contradictory statements of parties and Lambardar ordered presentation of mutation in presence of legal heirs of vendor---Revenue Officer attested mutation in absence of vendor's legal heirs mentioning receipt of Rs.240 as sale price---Validity---Vendor being an illiterate woman knew nothing about contents of impugned mutation and was incapable of understanding the nature of transaction---Vendor had never admitted receipt of sale price---Nothing was available on record to establish payment of alleged sale price---Held, attestation of mutation was result of fraud and collusion, thus, was ineffective on the rights of plaintiffs being successors-in-interest of vendor.

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

----S. 42---Mutation Registers, entries in---Evidentiary value---Such entries not conclusive evidence of facts that they purport to record.

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

----S. 42---Mutation---Burden of proving transaction embodied in mutation would lie on person acquiring title thereby.

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

----S. 42---Mutation---Validity---Mutation by itself would not create title---Mutation had to be proved through evidence of title---Person deriving title under mutation had to prove that transferor did part with ownership of property in favour of transferee and that mutation was duly entered and attested.

Hakim Khan's case 1992 SCMR 1832; Muhammad Ali's case PLD 1993 Lah. 33; Ghulam Muhammad's case 1992 MLD 1335; Muhammad Din's case 1992 ALD 459 rel.

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

----S. 42---Mutation---Presumption---Attested mutation may carry a. rebuttable presumption.

Karam Shah's case 1988 CLC 1812 rel.

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

----S. 42---Mutation, recording of---Essentials---Mutation must be recorded in presence of parties with their consent or upon due notice to them.

Muhammad Shah's case 1992 MLD 833 rel.

(i) Transfer of Property Act (IV of 1882)---

----S. 54---Sale---Proof of payment of price, absence of---Effect---Such was not a sale in eyes of law.

Muhammad Shafi's case PLD 1986 SC 519 rel

(j) Practice and procedure---

----When basic order is without lawful authority, then all superstructure built on it would fall on the ground automatically.

Yousaf Ali's case PLD 1958 SC 104 and Crescent Sugar Mills' case PLD 1982 Lah. 1 rel.

(k) Limitation---

---Void order---Limitation would not run against such order.

Pakistan Post Office's case 1987 SCMR 1119; Raja Muhammad Fazil Khan's case PLD 1975 SC 331 and Muhammad Masihuzzaman's case PLD 1992 SC 825 rel.

(l) Limitation---

----Inheritance---Question of limitation would not arise in such cases.

Mst. Fazal Jan's case PLD 1992 SC 811 and Ghulam Ali's case PLD 1990 SC 1 rel.

(m) Fraud---

----Fraud vitiates even solemn order.

Raja Muhammad Fazil Khan's case PLD 1975 SC 331 rel.

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

----O. I, R.9---Non-impleading of party---Effect---Suit could not be dismissed for such reason.

Central Government of Pakistan's case PLD 1992 SC 590 rel.

(o) Constitution of Pakistan (1973)---

----Art. 185---Appeal to Supreme Court---Concurrent findings of fact of Courts below---Interference with such findings by Supreme Court---Scope---When such findings were reasonable and not arrived at in disregard of any provision of law or any accepted principle concerning appreciation of evidence, then Supreme Court would, normally, not interfere with same even though different view might also be possible---Supreme Court in such case would give due weight and consideration to opinion of Courts below.

Malik Muhammad Ishque's case PLD 1977 SC 109 rel.

(p) Constitution of Pakistan (1973)---

----Art. 185---Appeal to Supreme Court---Jurisdiction of Supreme Court---Discretionary in nature-He who seeks equity must come with clean hands.

Muhammad Sharif's case PLD 1988 Lah. 725; Haji Saifullah's case PLD 1989 SC 166; Nawabzada Raunak Ali's case PLD 1973 SC 236 and Qutubuddin's case 1976 SCMR 524 rel.

(q) Equity---

----He who seeks equity must come with clean hands.

Abdul Karim Khan Kundi, Advocate Supreme Court with Ch. Muhammad Akram, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 11th December, 2006.

2007 S C M R 737

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Falak Sher, JJ

TANVEER HUSSAIN----Appellant

Versus

RAVI RYAN LIMITED through Managing Director and others----Respondents

Civil Appeal No.1699 of 2005, decided on 17th January, 2007.

(On appeal from the judgment, dated 22-10-2002 of the Lahore High Court Lahore passed in Writ Petition No.8974 of 2002).

(a) Interpretation of statutes---

----Words used in statute---Scope---Legislature never uses words either superfluously or meaninglessly---Each and every word of enactment is to be construed strictly in' accordance with ordinary use and meaning thereof.

(b) Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 25-A & 65-B---Limitation Act (IX of 1908), S.5---Grievance notice---Condonation of delay---Events occurring before filing of grievance petition---Aggrieved with the termination of employment, appellant served grievance notice to employer with some delay---Appellant also filed application for condonation of delay caused in issuing grievance notice to employer along with grievance petition---Labour Court dismissed the petition on the ground that the notice issued to employer was time-barred---Labour Appellate Tribunal as well as High Court maintained the order passed by Labour Court---Plea raised by appellant was that Labour Court had the jurisdiction to condone the delay caused in issuing the grievance notice---Validity---Provisions of S.65-B of Industrial Relations Ordinance, 1969, were applicable to any application or any thing done under the Ordinance---Courts of Labour hierarchy had the jurisdiction to condone the delay in filing the grievance notice, provided always, if sufficient cause within the contemplation of S.5 of Limitation Act, 1908, was available---Such jurisdiction was wrongly denied to appellant---Supreme Court set aside the orders passed by all the forums below and remanded the case to Labour Court for redeciding the question of limitation on merits---Appeal was allowed.

United Bank Limited v. Jamshed Sadiq 1983 PLC 554; Khuda Bux Lassi v. National Motors Limited Karachi 1985 PLC 1011 and Sh. Abdul Razzaq v. Chairman, Town Committee, Kabirwala 1990 PLC 616 ref.

Abid Hussain Minto, Senior Advocate Supreme Court for Appellant.

Ch. Abdul Rab, Advocate Supreme Court with Sh. Salahuddin, Advocate-on-Record for Respondents.

Date of hearing: 17th January, 2007.

2007 S C M R 741

[Supreme Court of Pakistan]

Present: Javed Iqbal and Ch. Ijaz Ahmed, JJ

Raja ALI SHAN----Petitioner

Versus

Messrs ESSEM HOTEL LIMITED and others----Respondents

Civil Petition No.2193 of 2004, decided on 7th December, 2006.

(On appeal from the judgment, dated 24-6-2004 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Civil Revision No.76 of 2003).

(a) Shamilat Deh---

----Land situated in---Such land reserved by inhabitants of village as graveyard---Effect---Graveyard would .mean a place for interment of dead bodies---Such land, once reserved for graveyard, would not remain property of any individual.

Stockton v. Weber ILR 98 Cal. 433 ref.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.I, R.8 & O.VII, R.11---Land Acquisition Act (I of 1894), S.4---Suit for declaration and permanent injunction---Acquisition of land in Shamilat Deh reserved for graveyard---Suit by plaintiff not in his personal capacity, but in representative capacity for declaring such land to be exempt from acquisition---Rejection of plaint for non-maintainability of suit---Validity---Suit-land was not owned by plaintiff or his ancestors---Suit­land once reserved for graveyard by inhabitants of village would not remain property of any individual---Suit was not maintainable in view of parameters prescribed under O.I, R.8, C.P.C.

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

----O. I, R.8---Representative suit, filing of---Essential conditions stated.

Order I, rule 8, C.P.C., formulates an exception to the general principle that all persons interested in a suit shall be parties thereof.

In order to file a representative suit, these conditions must be fulfilled: Persons interested in the suit must be numerous; they all must have the same interest in the suit; permission of Court under O.I, rule 8, C.P.C. shall be obtained; and notice must be given to all the persons whom it is sought to represent.

Islam-ud-Din's case PLD 2004 SCMR 633; Haji Saleh Muhammad's case 1983 SCMR 587; Gulla Mir's case PLD 1982 SC 120; Kumaravelu Chettiar's case AIR 1933 PC 183 and The State of Andhra Pradesh v. Gundugola Venkata Suryanarayana Garu AIR 1965 SC 11 rel.

(d) Words and phrases---

----"Graveyard"---Meaning---Graveyard means a place for interment of dead bodies.

Islam-ud-Din's case PLD 2004 SCMR 633 and Gulla Mirs' case PLD 1982 SC 120 rel.

(e) Interpretation of documents---

----Document must be read as a whole.

PLD 1957 SC (Pak.) 219 and Safiuddin Kazi's case PLD 1960 Dacca 555 rel.

(f) Precedent---

----Each case must depend upon its own facts.

Kailash Pat's case (50) AA 405 rel.

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

----O. VII, R.11---Rejection of plaint---Incompetent suit---Court not only empowered, but under obligation to reject plaint in such suit even without any application from a party---Principles.

In view of Order VII, rule 11, C.P.C., it is the duty of the Court to reject the plaint, if on a perusal thereto; it appears that the suit is incompetent. The parties to the suit are at liberty to draw courts' attention to the same by way of an application. The court can, and in most cases hears counsel on the point involved in the application, meaning thereby that the court is not only empowered, but under obligation to reject the plaint, even without any application from a party, if the same is hit by any of the clauses mentioned under Rule 11 of Order VII, C.P.C.

(h) Constitution of Pakistan, 1973---

----Art. 185---Jurisdiction of Supreme Court under Art.185 of the Constitutional---Discretionary in character---He who seeks equity must come with clean hands.

(i) Equity---

----He who seeks equity must come with clean hands.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), O.VII, R.11--Constitution of Pakistan (1973), Arts.185 & 199---Suit for declaration and permanent injunction---Filing of constitutional petition during pendency of suit on same subject-matter and cause of action---Withdrawal of suit during pendency of constitutional petition---Filing of second suit after dismissal of constitutional petition---Rejection of plaint in second suit for being incompetent by courts below and High Court--Validity-Jurisdiction of Supreme Court under Art.185 of the Constitution is discretionary in character---He who seeks equity must come with clean hands---Supreme Court, in view of such conduct of plaintiff, declined to exercise discretion in his favour and dismissed his petition.

Khawaja Muhammad Sharif's case PLD 1988 Lah. 725 and Haji Muhammad Saifullah Khan's case PLD 1989 SC 166 ref.

Muhammad Ilyas Sheikh, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Respondents Nos.1 and 2.

Arif Chaudhry, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Respondent No.3.

Date of hearing: 7th December, 2006.

2007 S C M R 750

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Falak Sher, JJ

Syed TALIB HUSSAIN----Appellant

Versus

GOVERNMENT OF THE PUNJAB through Secretary, Agriculture Department, Lahore and others ----Respondents

Civil Appeal No.2112 of 2004, decided on 16th January, 2007.

(On appeal from the judgment, dated 30-10-2002 of the Punjab Service Tribunal, Lahore passed in Appeal No.2700 of 1999).

University of Arid Agriculture, Rawalpindi Act (V of 1995)---

---S. 6---University of Agriculture, Faisalabad (Efficiency and Discipline) Statutes, 1975, S.2(1)(b) [as adopted by University of Arid Agriculture, Rawalpindi]---Dismissal from service---Non-joining of proceedings---Civil servant being originally employee of Agriculture Department was posted in University of Arid Agriculture---After integration of Research Institute with the University, civil servant applied to Provincial Government for repatriation to his original department, which request was rejected by Government---On the allegation of frequently travelling abroad without "No objection certificate" from the authorities or even without Ex-Pakistan leave, the civil servant was issued with a show-cause notice---Civil servant did not file any reply to the notice and ultimately authorities dismissed him from service---Order passed by authorities was maintained by Service Tribunal---Plea raised by civil servant was that he was not an employee of the University so he could not be proceeded against---Validity---Civil servant stood transferred to the University through notification of integration issued under S.6 of University of Arid Agricultural, Rawalpindi, 1995---Civil servant never challenged the notification of integration nor vires of S.6 of University of Arid Agriculture, Rawalpindi Act, 1995, hence he was precluded from disputing the effects and consequences thereof--Application of civil servant for repatriation was rejected and he did not challenge such refusal; it was too late in the day for the civil servant to wriggle out from implications of S.6 of University of Arid Agriculture, Rawalpindi Act, 1995---Whole affair was supposed to be within the knowledge of civil servant---Seen from any angle, civil servant was an employee of the University and was lawfully proceeded against by the University Authorities, which proceedings he failed to contest on merit---Supreme Court declined to interfere with the judgment passed by Service Tribunal---Appeal was dismissed.

Sh. Riaz-ul-Haq, Advocate Supreme Court for Appellant.

Sh. Iftikhar Ahmad, Advocate Supreme Court for Respondent No.2.

Ch. Muhammad Hussain, Additional Advocate-General for Respondents Nos.1 and 4.

Date of hearing: 16th January, 2007.

2007 S C M R 755

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Muhammad Nawaz Abbasi and Ch. Ijaz Ahmed, JJ

Sh. MEHDI HASSAN----Petitioner

Versus

PROVINCE OF PUNJAB through Member, Board of Revenue and 5 others----Respondents

Civil Review Petition No.115 of 2003, decided oil 9th August, 2006.

(On appeal from the judgment, dated 29-5-2003 passed by this Court in C.A. No.169 of 1998).

Civil Procedure Code (V of 1908)---

----S. 114 & O. XLVII, R.1---Review jurisdiction, exercise of---Scope--Review jurisdiction is confined to the extent of patent error or a mistake floating on surface of record, which, if not corrected, might perpetuate illegality and injustice---Points already raised and considered by Court could not be re-agitated in review jurisdiction---Mere fact that another view of matter was possible or conclusion drawn in impugned judgment was wrong, would not be a valid ground to review judgment, unless shown that court had failed to consider an important question of law.

Muhammad Munir Peracha, Advocate Supreme Court for Petitioner.

Gulzarin Kiani, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondent No.3.

Date of hearing: 9th August, 2006.

2007 S C M R 758

[Supreme Court of Pakistan]

Present: Javed Iqbal, Muhammad Nawaz Ahbasi and Hamid Ali Mirza, JJ

SARFRAZ alias SHAFFA----Petitioner

Versus

THE STATE and 3 others----Respondents

Civil Petition No.3499-L of 2002; decided on 28th June, 2006.

(On appeal from the judgment, dated 10-9-2002 of the Lahore High Court Bahawalpur Bench, passed in Writ Petition No.3083 of 2002/BWP)

Juvenile Justice System Ordinance (XXII of 2000)---

----S. 2-B---Constitution of Pakistan (1973), Arts.45, 199 & 185(3)--Death sentence awarded to accused was upheld by Supreme Court--Plea of age of accused not raised before Trial Court and Appellate Courts---Constitutional petition filed to seek benefit of special remission vide notification dated 13-12-2001 issued by the President---Trial Court convicted accused/petitioner on murder charge and sentenced him to death---Appeal filed thereagainst was dismissed by High Court---Petition for leave to appeal against finding of High Court was rejected by Supreme Court on 9-5-2002---Petitioner thereafter tiled constitutional petition before High Court, claiming benefit of special remissions pursuant to notification dated 13-12-2001 issued by the President of Pakistan in exercise of powers as conferred upon him under Art.45 of the Constitution---Petitioner had also claimed that being minor as defined by S.2-B of Juvenile Justice System Ordinance, 2000, death sentence could not have been awarded to him---Constitutional petition tiled by petitioner was, however, dismissed by High Court--Validity---Notification by the President dated 13-12-2001 revealed that Provincial Governments were to ensure prior to commutation of death sentence to imprisonment for life that age as recorded by Trial Court entitled condemned prisoner to such commutation--Plea of age, was never taken either before Trial or Appellate Courts including the Supreme Court--Petition for leave to appeal preferred on behalf of petitioner was decided by Supreme Court whereby judgment of High Court had been kept intact---No interference, at this belated stage could be made as petitioner failed to make out a case for special remission-Fact-urn of age was never pressed into service nor it was ever recorded by Trial Court---Petitioner was not to be entitled to any commutation by virtue of Presidential notification dated 13-12-2001---Petition for leave to appeal was dismissed.

Rehmat Ullah v. Home Secretary, Punjab 2004 SCMR 1861 rel.

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

Nemo for Respondents.

Date of hearing: 28th June, 2006.

2007 S C M R 761

[Supreme Court of Pakistan]

Present: Javed Iqbal, Abdul Hameed Dogar and Ch. Ijaz Ahmed, JJ

Mst. MUHAMMADI and others----Appellants

Versus

GHULAM NABI and others----Respondents

Civil Appeal No.2570 of 2001 along with Criminal Original Petition No.22 of 2002, decided on 6th December, 2006.

(On appeal from the judgment, dated 14-9-2001 passed by the Lahore High Court, Lahore in R.S.A. No.49 of 1995).

(a) Precedent---

----Each and every case is to be decided on its own peculiar facts and circumstances---Case is only an authority for what it actually decides.

Muhammad Saleem's case PLD 1994 SC 2213 fol.

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

----O. XXXII, R.12---Attaining of majority by minor---Non-compliance of provisions of O.XXXII, R.12, C.P.C.---Effect---Such non-compliance would be fatal only where interest of minor was not fully protected and prejudice was caused to his interest as a result of such non-compliance.

Mst. Afzal Begum's case PLD 1979 SC 30 rel.

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

---S. 12---Contract Act (IX of 1872), S.11---Agreement to sell in favour

of minor, specific performance of---Validity---Minor was beneficiary of such agreement---Section 11 of Contract Act, 1872 would not be attracted to such case.

Haji Abdullah Khan's case PLD 1965 SC 690 ref.

Noor Muhammad's case 2000 MLD 251; Sri Kakulan Subrahmanyam's case PLD 1948 PC 52; Narain Das's case ILR 38 All. 154; Bhagat Ram's case AIR 1927 Lah. 240; Mst. Amanat's case PLD 1959 Kar. 362; Muhammad Hussain's case PLD 1995 Pesh. 98; Noor Muhammad and others v. Muhammad Ishaq and another C.P. No.1308 of 1999; Madonlall's case AIR 1935 Bom. 353; Mrs. Danghar's case AIR 1936 Mad. 564; M.A. Faruqi's case PLD 1957 Kar. 631; Dr. Khalid Malik's 1994 MLD 2348 and Haji Noor Muhammad Jamote's case PLD 1993 Kar. 26 rel.

(d) Administration of justice---

---Courts can look into subsequent events at the time of deciding cases.

Mst. Amina Begum's case PLD 1978 SC 220 rel.

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

----Art. 185---Appeal to Supreme Court---Concurrent findings of fact of Courts below-Interference with such findings by Supreme Court---Scope---When such findings were reasonable and not arrived at in disregard of any prove on of law or any accepted principle concerning appreciation of evidence, then Supreme Court would, normally, not interfere with same even though different view might also be possible.

Muhammad Ishaque's case PLD 1977 SC 109 rel.

Khaleeq Ahmad Ansari, Advocate Supreme Court for Appellants.

Amir Alam Khan, Advocate Supreme Court for Respondents Nos.1, 2 and 3(b).

Respondent No.3(a): Ex parte.

Date of hearing: 6th December, 2006.

2007 S C M R 768

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Ghulam Rabbani, JJ

Malik MUHAMMAD AFZAL and others----Petitioners

Versus

PROVINCE OF PUNJAB through Chief Secretary to Government of the Punjab Lahore and others----Respondents

Civil Petitions Nos.1962 and 1988-L of 2006, decided on 6th December, 2006.

(On appeal from judgments/orders, dated 7-7-2006 passed by the Punjab Subordinate Judiciary Service Tribunal, Lahore High Court, Lahore, in S.As. Nos.6 and 7 of 2001).

(a) National Accountability Ordinance (XVIII of 1999)---

----S. 5(h)---Post of Judge of Accountability Court---Status---Post of Judge Accountability Court is an ex-cadre post in connection with affairs of the Federation.

(b) Punjab Subordinate Judiciary Service Tribunals Act (XII of 1991)---

----S. 5---Memo. No. FD.SR-III-4-58/86-C, dated 10-8-1986, Government of Punjab Finance Department---National Accountability Ordinance (XVIII of 1999), S.5 (h)---Constitution of Pakistan (1973), Art.212(3)---Judge of Accountability Court---Pensionary benefits---Petitioners were District and Sessions Judges who were posted as Judges of Accountability Court and retired from there---Petitioners claimed to be entitled to calculation of pension and gratuity on the basis of pay as admissible to a Judge of High Court drawn by them as Judges of Accountability Court---High Court declined the claim of petitioners and their benefits were calculated on the basis of pay drawn by them as District and Sessions Judges---Appeal before Punjab Subordinate Judiciary Service Tribunal, was dismissed---Validity---Petitioners were to be considered to be on deputation with Federal Government while serving as Judges of Accountability Court---Petitioners could not be said to have held the post of Judge of Accountability Court on regular basis and they were liable to be repatriated to their parent department at any time---Memo. No. FD.SR-III-4-58/86-C, dated 10-8-1986, issued by Government of Punjab, Finance Department, had no application to the post for the time being held in connection with affairs of Federation---Even District and Sessions Judge, who attained the age of superannuation during elevation as Additional Judge of High Court, if not confirmed, was not granted pensionary benefits on the basis of salary drawn by him as Judge of High Court---Petitioners were rightly held disentitled to the calculation of their pension on the basis of last pay drawn by them as Judges of Accountability Court---Judgment passed by Punjab Subordinate Judiciary Service Tribunal did not suffer from any defect or other legal infirmity so as to warrant interference by Supreme Court---Leave to appeal was refused.

Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607; Islamic Republic of Pakistan v. Israr-ul-Haq and 23 others PLD 1981 SC 531; Muhammad Arshad Sultan, Section Officer, Cabinet Division, Islamabad and others v. Prime Minister of Pakistan, Islamabad and 31 others 1997 PLC (C.S.) 451; Province of Punjab v. Ikramul Haq and another 1986 SCMR 1994 and D.M. Bharati v. L.M. Sud AIR 1991 SC 940 rel.

Jariullah Khan, Senior Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioners (in C.P. No.1962/L of 2006).

Malik Muhammad Qayyum, Advocate Supreme Court for petitioners (in C.P. No.1988/L of 2006).

Nemo for Respondents (in both cases).

Date of hearing: 6th December, 2006.

2007 S C M R 772

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ

MUHAMMAD YAQOOB----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.64 of 2006, decided on.25th August, 2006.

(On appeal from the judgment, dated 19-1-2005 passed by Lahore High Court, Multan Bench in Criminal Appeal 480 of 2001 and Murder Reference No.481 of 2001).

Penal Code (XLV of 1860)---

----Ss. 302(b) & 34---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---F.I.R. lodged with promptitude---No conflict of time of occurrence given in F.I.R. and medical evidence---Testimony of complainant was duly supported by medical evidence---Accused/ petitioner as per F.I.R. had committed murder of complainant's sister in the latter's house with 12 bore carbine fire---Trial Court convicted accused and sentenced him to death under S.302(b), P.P.C.---Criminal appeal filed thereagainst was dismissed by High Court---Validity---F.I.R. had been promptly lodged and there was no conflict between time of occurrence given in F.I.R. and medical evidence, therefore, contention of accused that occurrence was un-witnessed as having taken place in the night, was unfounded---Murder had been committed in the house of complainant, therefore, he being most natural witness of occurrence, had narrated facts in detail, without any material contradiction or discrepancy---Observation of High Court that even if evidence of other eye-witness was excluded from consideration, the testimony of complainant being not suffering from any disability and duly supported by medical evidence, was alone sufficient to sustain conviction of accused, was unexceptional---Accused was not stranger to complainant family, therefore, his identity was unmistaken and it did not appeal to mind that complainant having seen the deceased in objectionable position with some other person done her to death but spared that person---Charge against petitioner was proved beyond doubt and concurrent findings of two Courts below regarding guilt of accused being based on evidence of most natural witness was not to be interfered with by Supreme Court---Leave to appeal was refused.

M. Zaman Bhatti, Advocate Supreme Court for Petitioner.

Khadim Hussain Qaiser, Additional Advocate-General for Respondent.

Date of hearing: 25th August, 2006.

2007 S C M R 775

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Sardar Muhammad Raza Khan and Faqir Muhammad Khokhar, JJ

QADIR BAKHSH and 2 others---Appellants

Versus

WAHID BAKHSH and others----Respondents

Civil Appeal No.1830 of 1998, decided on 21st April, 2003.

(On appeal from the judgment, dated 17-6-1998 passed by Lahore High Court, Multan Bench, in C.M. No.1-C and C.M. No.475-C of 1998 in R.F.A. No.25 of 1998).

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr.1, 2 & O.XLI, Rr.5, 33---Constitution of Pakistan (1973), Art.185(3)---First Appeal---High Court admitted appeal for regular hearing and directed maintenance of status quo in meanwhile---Validity---Supreme Court granted leave to appeal to consider whether an injunction could not be granted by High Court to stay proceedings of another Court, which was not subordinate to High Court.

Mian Abbas Ahmad, Advocate Supreme Court for Appellants.

Abdur Rashid Awan, Advocate Supreme Court for Respondent No.1.

Other Respondents: Ex parte.

Date of hearing: 21st April, 2003.

2007 SCMR 778

[Shariat Appellate Jurisdiction]

Present: Justice Sardar Muhammad Raza Khan, Chairman Justices Ch. Ijaz Ahmed, Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullundhari, Members

BINYAMIN alias KHARI and others----Petitioners

Versus

THE STATE----Respondent

Jail Shariat Petitions Nos.30, 57 and 56 of 2005, decided on 29th November, 2006.

(On appeal from the judgment, dated 3-1-2005 passed by the Federal Shariat Court, Lahore Bench, in Criminal Appeal No.317/L of 2001, Jail Criminal Appeal No.220/L of 2003 and Jail Criminal Appeal No.227/L of 2004).

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

----S. 302/34---Appreciation of evidence---Departure evidence---Last ­seen evidence---Deceased at the time of his departure from house along with accused was seen by his father---Deceased was last seen by another prosecution witness along with accused at Bus Stop heading towards school---Dead body of deceased was recovered from school on following morning---Statements of prosecution witnesses were in line with each other, which could not be shaken by defence during cross-examination---Double presumption of last-seen evidence consisting of departure and lastly seen was corroborated by recovery of dead body and medical evidence---Prosecution had proved its case against accused---Conviction and sentence awarded to accused was upheld in circumstances.

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

---Ss. 302 & 343---Appreciation of evidence---Departure evidence and last-seen evidence---Evidentiary value---Such evidence is, normally, considered as weak evidence---Capital punishment can be awarded, if an unbroken chain of circumstances from stage of last-seen evidence till death of victim was established by conclusive evidence.

(c) Evidence---

---Circumstantial evidence---Evidentiary value---Such evidence is one of the recognized modes having origin from Islam to find out the guilt or innocence of accused---Such evidence, if appeals to logic and reason, then same would be sufficient piece of evidence to connect accused with commission of offence and capital punishment can be awarded on its basis---Principles.

Sarfraz Khan's case 1996 SCMR 188; Jaffar Ali's case 1998 SCMR 2669; Khurshid's case PLD 1996 SC 305 and Holy Book of Qur'an Sura-e-Yousif Verse Nos.26, 27 and 28 rel.

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

----Art. 185---Appeal to Supreme Court---Concurrent findings of fact of Courts below--Supreme Court would not, normally, interfere with such findings.

Rafaqat Hussain Shah, Advocate Supreme Court for Petitioners (in all cases).

Nemo for the State.

Date of hearing: 29th November, 2006.

2007 S C M R 782

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Nasir-ul-Mulk and Syed Jamshed Ali, JJ

GHULAM QADIR and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.239 of 2000, decided on 25th September, 2006.

(On appeal from the judgment of High Court of Balochistan, Quetta dated 20-7-1999 passed in Criminal Appeal No.42 of 1999 and Criminal Revision No.22 of 1999).

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

----S. 302---Constitution of Pakistan (1973), Art.185---No direct ocular evidence about guilt of accused---Conviction of accused on basis of circumstantial evidence and retracted confession---Validity---In order to determine whether guilt of accused had been established beyond doubt Supreme Court granted leave to appeal to scrutinize case in the light of relevant law and probative value of evidence used for conviction.

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

----S. 164---Judicial confession recorded after seven days of arrest of accused---Validity--Delay in recording confession would become relevant to determine its voluntariness, but would not render confession involuntary---Magistrate had complied with all formalities required under law to ensure that accused was making confession voluntarily---Nothing brought on record to reflect upon voluntariness of confession---Held, confession of accused could not be thrown out simply for such delay.

Muhammad Yaqoob v. The State 1992 SCMR 1983 rel.

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

----S. 164---Confession---Evidentiary value---Confession of accused,' if voluntary and true, would itself be sufficient to convict accused.

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

----Ss. 302/109/34---Criminal Procedure Code (V of 1898), S.164---Appreciation of evidence---Arrest of accused persons soon after incident by chasing officials from same car described in F.I.R.---Confession of each accused corroborated by confessional statements of other accused---Recovery of kalashnikov used by one accused at his pointation soon after his arrest---Held: Prosecution had proved its case beyond reasonable doubt---Accused were convicted in circumstances.

M. Zaman Bhatti, Advocate Supreme Court for Appellants.

Mehmood Raza, Additional Advocate-General for the State.

Date of hearing: 25th September, 2006.

2007 S C M R 787

[Supreme Court of Pakistan]

Present: Falak Sher and Raja Fayyaz Ahmad, JJ

MANZOOR HUSSAIN----Appellant

Versus

SHAHBAZ GUL through L.Rs.----Respondents

Civil Appeal No.1228 of_2001, decided on 25th September, 2006.

(On appeal from the order, dated 18-1-2000 of the Lahore High Court, Rawalpindi Bench passed in Civil Revision No.290-D).

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

----S. 13---Constitution of Pakistan (1973), Art.185(3)---Right of pre­emption---Leave to appeal was granted by Supreme Court to consider; whether Courts including High Court had not derived correct inference from proved facts and conclusions so arrived suffered from gross illegality.

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

----S. 13---Right of pre-emption---Talb-e-Muwathibat---Delay---Non-­mentioning of source and venue of information regarding sale---Concurrent findings of fact by the Courts below---Sale in question took place on 28-12-1995, whereas Talb-i-Muwathibat was made on 23-2-1996 and two days later, notice of Talb-i-Ishhad was sent---Trial Court as well as Lower Appellate Court dismissed the suit and appeal respectively on the ground that pre-emptor did not perform required Talbs in accordance with law---Judgment and decrees passed by both the Courts were maintained by High Court---Validity---Was always obligatory for a pre-emptor that on coming to know about sale of property he should make Talb-i-Muwathibat, without any further loss of time---Plaint did not show source of information with regard to sale of property in question nor even venue where pre-emptor received such information was mentioned---Was also not averred by pre-emptor that he got information about sale of property in question through the witness who on 23-2-1996, allegedly visited his house in evening and in his presence he asserted his right of pre-emption as against the sale and after two days, he stated to have issued notice of Talb-i-Ishhad in presence of same witness, nor any explanation had been furnished by pre-emptor as to such omissions in plaint on his part---Reasons found favour with Trial Court, Lower Appellate Court and High Court having concurred with conclusions, same called for no interference by Supreme Court---No material piece of evidence germane to decision on the issue of making of Talbs appeared to have been misread, misconstrued or omitted from consideration---Appeal was dismissed.

Sh. Zamir Hussain, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Appellant.

Gulzarin Kiani, Advocate Supreme Court and Arshad Ali Ch., Advocate Supreme Court for Respondents.

Date of hearing: 25th September, 2006.

2007 SCMR 792

[Supreme Court of Pakistan]

Present: Ch. Ijaz Ahmed and Hamid Ali Mirza, JJ

REGISTRAR, LAHORE HIGH COURT, LAHORE----Appellant

Versus

Syed JAVED AKBAR and another----Respondents

Civil Appeal No.1678 of 2003, decided on 14th December, 2006.

(On appeal from the judgment, dated 16-1-2003 passed by the Punjab Subordinate Judiciary Service Tribunal, Lahore in Appeal No.62 of 1999).

(a) Punjab Subordinate Judiciary Service Tribunals Act (XII of 1991)---

----S. 5---Constitution of Pakistan (1973), Art.212(3)---Leave to appeal was granted by Supreme Court to consider the effect of withdrawal of resignation tendered by judicial officer after lapse of a considerable time.

(b) Punjab Subordinate Judiciary Service Tribunals Act (XII of 1991)---

----S. 5---Reinstatement in service---Resignation, withdrawal of---Effect---Judicial officer tendered his resignation on 2-3-1998 and withdrew it on 20-4-1998, while it was accepted on 2-5-1998---Contention of authorities was that the judicial officer remained absent from duty for 71 days---Punjab Subordinate Judiciary Service Tribunal, allowed appeal of judicial officer on the ground that having tendered his resignation it would not have been appropriate for him to perform judicial functions thus judicial officer did not remain absent in fact---Judicial officer was reinstated by Service Tribunal without back benefit as he had been practising at the bar and intervening period from the date of his relinquishing charge and resuming the same was treated as kind of leave due---Validity---Resignation could be withdrawn or recalled before its acceptance by competent authority---Supreme Court declined to interfere with the judgment passed by Service Tribunal---Appeal was dismissed.

Jai Ram's case AIR 1954, SC 584; Shanker Dutt Shukla's case AIR 1956 All. 70; Reichel's case (LVI) LTR (NS) 539; Muhammad Khan's case PLD 1958 Kar. 75; Ashfaq Ahmad Mir's case 1999 PLC (C.S.) 738; Prof. Muhammad Ali Sheikh's case 2003 PLC (C.S.) 1535; Muhammad Rafique's case 1991 PLC (C.S.) 1040; Muhammad Salim Khan's case 1991 SCMR 440 and Abdul Jabbar Khan's case 1984 PLC (C.S.) 435 rel.

Farooq Zaman Qureshi, Advocate Supreme Court and Nazar Hussain, Deputy Registrar for Appellant.

Respondents: Ex part.

2007 S C M R 794

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

ALAM KHAN----Appellant

Versus

Mst. NIGHAT IRAM ALAM----Respondent

Civil Appeal No.1698 of 2003, decided on 5th October, 2006.

(On appeal from the judgment, dated 9-6-2003 in Civil Revisions Nos.2593 and 2073 of 1996 passed by the Lahore High Court, Lahore).

Islamic Law----

--Will-Oral Will by deceased in favour of his old driver---Legal heirs of deceased admitting such Will and undertaking to honour same by executing deed of family settlement signed by them and such driver---Inclusion of driver's name in Revenue Record on basis of such deed to the extent of 12-1/2 acre acres of land, which entries remained upheld by revenue hierarchy---Held, driver was entitled to the extent of 12-1/2 acres of land.

Gulzarin Kiani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.

Jehangir A. Jhoja, Advocate Supreme Court for Respondent.

Date of hearing: 5th October, 2006.

2007 S C M R 800

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Raja Fayyaz Ahmad, JJ

GUL KANJEER KHAN and others----Petitioners

Versus

Subedar UMER KHATAB and others----Respondents

Civil Petitions Nos.3007 and 3008-L of 2002, decided on 21st July, 2006.

(On appeal from the judgment, dated 16-5-2002 of the Lahore High Court, Multan Bench, Multan passed in R.S.As. Nos.112 and 113 of 1983).

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

----Ss. 30 & 30-A---Proprietary right, acquisition of---Execution of sale-deed in favour of female on payment of full price of land to the extent of her share---Held, such female was full owner of land as per registered sale-deed.

(b) Islamic Law---

----Inheritance---Stepson not entitled to succeed to property left by his stepmother on opening of her inheritance in presence of her own children.

Syed Sardar Shah Bukhari, Advocate Supreme Court for Petitioners.

M. Iqbal Khan, Advocate Supreme Court for Respondents.

Date of hearing: 21st July, 2006.

2007 S C M R 805

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Muhammad Nawaz Abbasi and Saiyed aeed Ashhad, JJ

ZANG ALI KHAN and others----Petitioners

Versus

MUEEN KHAN and others----Respondents

Civil Petition No.1054 of 2006, decided on 1st December, 2006.

(On appeal from the judgment, dated 30-6-2006 passed by Peshawar High Court, Peshawar in Civil Revision No.112 of 2004).

Specific Relief Act (I of 1877)---

----S. 42---West Pakistan Redemption and Restitution of Mortgaged Lands Act (XIX of 1964), S.3---Transfer of Property Act (IV of 1882), S.60---Limitation Act (IX of 1908), Ss.19, 28 & 148---Suit for declaration of title regarding mortgaged land not redeemed within prescribed period of limitation---Land mortgaged jointly in year 1914 was redeemed on 30-11-1961 by plaintiff along with defendant's share---Effect--Period of limitation of sixty years would start from 30-11-1961, when plaintiff had acquired right of mortgagee and would continue till 29-11-2021-Payment of mortgage money by mortgagee to mortgagor would be considered extension in period of limitation for recovery of such amount and also for instituting proceedings for redemption of mortgaged land---Plaintiff's claim was premature.

Nawaz Ali Khan and another v. Nawabzada and others PLD 2003 SC 425 and Muhammad Hanif and another v. Ghulam Rasool through L.Rs. and others 2005 SCMR 1004 rel.

Agha Tariq Mehmood Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners.

Nemo for Respondents.

2007 S C M R 808

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Actg. C.J. and Muhammad Nawaz Abbasi, J

GHULAM NABI----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.364 of 2005, decided on 4th August, 2006.

(On appeal from the judgment, dated 10-9-2005 passed by High Court of' Balochistan, Sibbi, in A.T.A. Criminal Appeal (S)12 of 2004).

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

----Ss. 302(b), 364-A, 382, 404, 441, 109 & 34---Constitution of Pakistan (1973), Art.185(3)---Anti-Terrorism Act (XXVII of 1997), Preamble---Reappraisal of evidence---Last seen evidence---Witnesses of last seen evidence and recoveries were quite independent and confidence inspiring---Judicial confession recorded on last day of physical remand---Effect---Allegation against accused/petitioner was that he, after kidnapping a minor girl, committed her murder---Complainant (father of deceased) lodged F.I.R. against accused on the basis of suspicion and last seen evidence---Trial Court/Special Court convicted accused and awarded him sentence of death on two counts viz. under S.302(b), P.P.C. and 364-A, P.P.C.---Appeal filed thereagainst was dismissed by High Court---Accused contended that last seen evidence did not have any evidentiary value; that recovery of dead body on pointation of accused and golden ear-rings of deceased might not be sufficient to prove charge of murder; that judicial confession of accused was manipulated by police by way of torture , hence, the same was of no value; that judicial confession of accused was recorded on last day of his physical remand with police and such facts and circumstances of case might not justify capital punishment, rather sentence of life imprisonment was to be sufficient to meet the ends of justice---Validity---Witnesses of last seen evidence and recoveries were quite independent and confidence ­inspiring---Accused had not been able to point out any , material discrepancy or contradiction in prosecution evidence to suggest any doubt qua the credibility of evidence of recovery of dead body and other articles belonging to deceased at his pointation---Witness of last seen evidence had no enmity, personal grudge or Malice against accused to make false statement---Witnesses of recovery of dead body and ear-rings of deceased were entirely independent and had no reason to make false statement against accused in a case of capital punishment---Magistrate who recorded confessional statement of accused had categorically stated that he recorded confessional statement of accused after completion of all formalities, providing sufficient time to him to think over the matter before making confession---Perusal of statement of witnesses together with confessional statement of accused would suggest that there was no clement of coercion, undue influence or pressure rather record showed that confession was made voluntarily and was truthful---Mere fact that confessional statement was made on last day of physical remand was not indicative of any doubt regarding its voluntariness to exclude the same from consideration, instead it was to ensure its voluntariness because accused was aware of the fact that he would not be again given in custody of police and was being sent to judicial custody---Accused had committed murder of a girl of minor age by way of suffocation and in a brutal manner, therefore, he did not deserve leniency in matter of sentence---Petition for leave to appeal was dismissed.

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

----S. 164---Confession---Voluntariness---Mere fact that confessional statement was made on last day of physical remand was not indicative of any doubt regarding its voluntariness to exclude the same from consideration, instead it was to ensure its voluntariness because accused was aware of the fact that he would not be again given in custody of police and was being sent to judicial custody.

M. Zaman Bhatti, Advocate Supreme Court for Petitioner.

Mehmood Raza, Additional Advocate-General Balochistan for Respondent.

Date of hearing: 4th August, 2006.

2007 SCMR 813

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

MUHAMMAD ZAMAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.2 of 2001, decided on 4th October, 2006.

(On appeal from the judgment, dated 21-2-2000 in Criminal Appeal No. 109/J of 1999 passed by the Lahore High Court, Lahore).

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

----Art. 22---Identification test of accused---Long delay in holding such test---Effect---Mere such delay by itself would neither be sufficient to discard testimony of eye-witness nor fatal to prosecution case.

Arif Masih and another v. The State PLD 2001 SC 398; Lal Singh and others v. State of Uttar Pradesh 2003 INSC 506; Vikram Singh v. Raj Singh 1998 SCC (Cr1.) 578 and Vikram Singh v. Raj Singh (1973) 3 SCC 896 rel.

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

----S. 302/34---Appreciation of evidence---Commission of charged offence by accused stood proved beyond reasonable doubt through ocular testimony of eye-witnesses, identification test and medical evidence---Nothing was available on record to show that such prosecution witnesses and police had any animus against accused---Recovery of crime-empties from spot, if excluded from consideration, even then the case against accused stood proved beyond reasonable doubt---Conviction and sentence awarded to accused by Trial Court was maintained in circumstances.

Zaman Bhatti, Advocate Supreme Court for Appellant.

Ch. Munir Sadiq, Advocate Supreme Court for the State.

Date of hearing: 4th October, 2006.

2007 S C M R 817

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Abdul Hameed Dogar, Sardar Muhammad Raza Khan, Khalil-ur-Rehman Ramday, Muhammad Nawaz Abbasi, Mian Shakirullah Jan, Saiyed Saeed Ashhad and Nasir-ul-Mulk, JJ

IN RE: REFERENCE NO.1 OF 2006

Reference No.1 of 2006, decided on 20th February, 2007.

North-West Frontier Province Hisba Bill, 2005---

---Ss. 2(11) & 3(2)--- North-West Frontier Province Hisba Bill 2006, Ss.23 & 14---Constitution of Pakistan (1973), Art.186---Advisory jurisdiction of the Supreme Court---Reference by the President of Pakistan--Opinion expressed by the Supreme Court in Reference No.2 of 2005 by the President of Pakistan (reported as PLD 2005 SC 873) having been complied with except in respect of provisions of Ss.2(11) & 3(2) of the North-West Frontier Province Hisba Bill, 2005 which appeared to have escaped the notice of the Provincial Legislature, Supreme Court directed that due consideration now be given to the said provisions---Supreme Court further opined that any violation of the provisions of S.23 of North-West Frontier Province Hisba Bill, 2006 shall not be subject to S.14 hereof.

Makhdoom Ali Khan, Attorney-General for Pakistan assisted by Faisal H. Naqvi, Uzair Karamat Bhandari, Khurram M. Hashmi, Advocates, and M.S. Khattak, Advocate-on-Record for the President.

Khalil Anwar, Senior Advocate Supreme Court Pir Liaqat Ali Shan, Advocate-General, N.-W.F.P., assisted by Munib Akhtar, Advocate for Government of N.-W.F.P.

Kifayatullah, Deputy Secretary and Inayatullah, Assistant Secretary for Speaker Provincial Assembly, N.-W.F.P.

Dates of hearing: 19th and 20th February, 2007.

OPINION

2007 S C M R 818

[Supreme Court of Pakistan]

Present: Falak Sher and Ch. Ijaz Ahmed, JJ

MUHAMMAD TARIQ KHAN----Petitioner

Versus

Khawaja MUHAMMAD JAWAD ASAMI and others----Respondents

C.P.L.A. No.1593-L of 2003, decided on 6th March, 2007.

(On appeal from the judgment/order, dated 15-4-2003 passed by the Lahore High Court, Lahore in Writ Petition No.7008 of 2001).

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Preamble, Ss.2(b) & 16---Civil Procedure Code (V of 1908), Ss.141 & 144---Proceedings before Rent Controller---Applicability of Civil Procedure Code, 1908---Provisions of C.P.C. not applicable in rent proceedings stricto senso---Rent Controller, in exercise of his discretion could follow equitable principles of C.P.C.---Principles incorporated in S.144, C.P.C. being equitable, could be invoked in ejectment cases.

Haji Abdul Wali Khan's case 1991 SCMR 2457; Ayub Khan's case PLD 1976 SC 422; Messrs Bambino Ltd.'s case PLD 1983 SC 155; Sh. Abdul Hameed's case PLD 1994 Kar. 379; Atta-ul-Haq's case NLR 1992 Civil 479; Abdul Hameed's case 1986 MLD 541; Sh. Miraj Din's case PLD 1965 Lah. 374; Sr. Lakshmi Narayan's case PLD 1964 Dacca 177; Ahmad-ul-Haq's case PLD (sic) Dacca 452 and Mst. Fatima Bibi's case 1991 SCMR 1031 fol.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 17---Civil Procedure Code (V of 1908), Ss.141 & 144---Ejectment order---Possession obtained by landlord in execution of such order---Objector seeking restoration of possession from landlord with damages---Validity---Rent Controller could restore possession to objector, but could not grant him damages---Principles.

Sh. Abdul Hameed's case PLD 1994 Kar. 379; Atta-ul-Haq's case NLR 1992 Civil 479; Abdul Hameed's case 1986 MLD 541; Sh. Miraj Din's case PLD 1965 Lah. 374; Sr. Lakshmi Narayan's case PLD 1964 Dacca 177; Ahmad-ul-Haq's case PLD (sic) Dacca 452 and Mst. Fatima Bibi's case 1991 SCMR 1031; Gouranga Mohan Sikdar's case PLD 1970 SC 158 and Mollah Ejahar Ali's case PLD 1970 SC 173 rel.

(c) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 17---Execution proceedings--Rent Controller while executing his order like decree of civil court, would not become a civil court---Principles.

While executing order under section 17 of West Pakistan Urban Rent Restriction Ordinance, 1959, the Rent Controller remains persona designata and does not become a civil court merely because he has to execute his order like decree of civil court. The deeming provisions (as it was a decree of civil court), is meant to Make it clear that force of ejectment order is that of a decree of civil court.

Syed Sarwar Abbas's case 1969 SCMR 689 and Ghulam Murtaza's case 1986 CLC 1577 fol.

(d) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Preamble, Ss.2(b), 10, 13 & 13-B---Civil Procedure Code (V of 1908), S.9---Proceedings before Rent Controller---Adjudication of complicated question requiring protracted inquiry---Scope---Civil court should be required to decide such question---Principles.

Where Rent Controller feels that complicated question required a protracted inquiry for its decision, then he can observe that such question should be decided by a court of general jurisdiction, namely the ordinary civil court.

Ghulam Murtaza's case 1986 CLC 1577; Rehmat Ullah's case 1983 SCMR 1064; Abdul Ghani's case PLD 1985 SC 1 and Jam Muhammad's case 1996 MLD 1845 rel.

(e) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13--Civil Procedure Code (V of 1908), S.141---Ejectment proceedings---Applicability of Civil Procedure Code, 1908---Rent Controller could evolve his own procedure for disposal of ejectment petition and follow enabling provisions of C.P.C. or principles contained therein.

(f) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Ejectment proceedings---Application for additional evidence, production of---Rent Controller while allowing application could not impose costs---Principles.

Rent Controller, being a persona designata governed by a special statute has no jurisdiction to impose costs while allowing the application for production of additional evidence of the party in proceedings.

Daood's case PLD 1980 Kar. 269; Ismail's case 1983 CLC 2994 and Abu Bakr' case 1986 MLD 227 rel.

(g) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

---Preamble & S.13---Purpose and object of West Pakistan Urban Rent Restriction Ordinance, 1959 is to safeguard rights of both landlord and tenant---Principles.

The purpose and object of the Urban Rent Restriction Ordinance, 1959 is to restrict the ejectment of tenants of urban immovable property in the Province. The Legislature has only regulated the relationship of landlord and tenant and provided a machinery for ejectment of tenants and other allied matters, meaning thereby the Legislature by promulgation of the Rent Restriction Ordinance on the one hand has permitted the ejectment of tenant only on the specified grounds, on the other hand it has also kept in view the interest of the landlord. Grounds of ejectment as specified in section 13 of the Ordinance clearly support this view, in other words the Ordinance is meant for the safeguard of all the rights of both the landlord and tenant.

The West Pakistan Rent Restriction Ordinance, 1959 is enacted by the Legislature in its wisdom to regulate the relationship of landlord and tenant to provide them remedy for resolution of any dispute arising between them to approach the Rent Controller, who is also bound to pass orders within the four-corners of the provisions of the Ordinance.

(h) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 17---Civil Procedure Code (V of 1908), S.47 & O.XXI, R.58---Execution of decree, objection to---Executing Court, duty of---Scope---Decree could be executed in the light of terms and conditions mentioned therein---Executing court could not go behind decree---Duty of executing court would be to dispose of objections filed by objector in the light of terms and conditions of decree---Rent Controller, while deciding objection petition, could not consider himself to be a Civil Court regulated by provisions of Civil procedure Code, 1908---Rent Controller would be bound to decide such matter in view of provisions of special law and not beyond that---Principles.

Mst. Nasim Akhtar's case 1994 SCMR 22 rel.

(i) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

---S. 17---Execution of order as decree---Rent Controller, powers of---Scope---Rent Controller could not deviate from real controversy between parties while keeping in view decree under execution---Rent Controller had only authority to determine questions relating to execution, discharge and satisfaction of decree.

S. Anwar Ali Shah's case PLD 1978 Lah. 1078 rel.

(j) Interpretation of statutes---

----Preamble is key to understand a statute.

Syed Ikhlaq Hussain's case PLD 1969 Lah. 563 rel.

(k) Constitution of Pakistan (1973)---

----Arts. 185 & 199---Superior Courts has only to interpret law as the Constitution is based on trichotomy.

Zia-ur-Rehman Khan's case PLD 1973 SC 49 rel.

(l) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 17--Execution proceedings--Objection petition---Duty of Rent Controller to decide such petition after judicial application of mind while keeping in view pleadings of parties, decree under execution and provisions of West Pakistan Urban Rent Restriction Ordinance, 1959.

(m) Administration of justice---

----When basic order is without lawful authority, then superstructure built on it would have to fall on the ground automatically.

Yousaf Ali's case PLD 1958 SC 104 fol.

M. Waheed Khan, Advocate Supreme Court and Mahmood-ul-Islam, Advocate-on-Record for Petitioner.

Akhtar Ali Ch., Advocate Supreme Court and Haji M. Rafi Siddiqui, Advocate-on-Record for Respondents Nos.1 to 6.

2007 S C M R 826

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

COLLECTOR OF CUSTOMS and another----Petitioners

Versus

SHAHNAWAZ ENTERPRISES KARACHI----Respondent

C.P.As. Nos.305-K and 306-K of 2005.

Customs Act (IV of 1969)---

----S. 25---Import of teak wood roughly squared, Teak-wood posts and Teak-wood squares---Value of such wood, determination of---Such wood would fall within Pakistan Customs Tariff (P.C.T.) Heading 4403.1010, and thus, would not be liable to customs duty under P.C.T. Heading 4407.2110.

Abdul Saeed Khan Ghori, Advocate-on-Record for Petitioners.

Navin Merchant, Advocate Supreme Court and A. Aziz Khan, Advocate-on-Record for Respondent.

2007 SCMR 830

[Shariat Appellate Jurisdiction]

Present: Justice Javed Iqbal, Chairman, Justices Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed, Dr. Allama Khalid Mahmood and Allama Rashid Ahmed Jullundhari, Members

SARFRAZ----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.42(S) of 2003, decided on 6th November, 2006.

(On appeal from the judgment, dated 11-5-2000 of the Federal Shariat Court, Islamabad passed in Criminal Appeal No.78-K of 1999).

(a) Prohibition (Enforcement of Hadd) Order (IV of 1979)---

----Arts. 3 & 4---Criminal Procedure Code (V of 1898), S.103---Qanun­-e-Shahadat (10 of 1984), Art.43---Constitution of Pakistan (1973), Art.203 F (2B)---Reappraisal of evidence---Recovery of 50 kilograms of heroin---Recovery proceedings---Substitution of accused---Fifty kilograms of heroin was recovered from the house of accused in a raid conducted by police---Trial Court convicted the accused and sentenced him to imprisonment for life, which was maintained by Federal Shariat Court---Plea raised by accused was that all recovery witnesses were police officials and he was substituted for the real culprits---Validity---Plea raised by accused was not proved by the record because one of the prosecution witnesses was not only a private witness but also a respectable inhabitant of the vicinity who witnessed recovery of heroin and also signed recovery memo.---All prosecution witnesses were subjected to stern and searching cross-examination but nothing advantageous could be elicited from them---Alleged recovered powder was proved to be heroin as per report of Chemical Examiner---Plea of accused that he was substituted for the real culprits was an afterthought because false plantation of heroin in such a huge quantity was not possible---Conviction could have been awarded on the statement of witnesses who were police officials because reluctance of general public to associate as witness had become a judicially recognized fact-No such-bar existed under Art.43 of Qanun-e-Shahadat, 1984, that no conviction could be awarded on statement of an official witness---Evidence of sane adult Muslim could not be rejected simply on the ground that he was an official witness or was a police employee---Statement of police witness could be relied upon if his testimony remained un-shattered-during cross-examination and in absence of any rancour, enmity or ulterior motive to implicate the accused in such-like cases---Evidence which had come on record had rightly been appreciated by Trial Court, determination whereof was upheld by Federal Shariat Court---No illegality, irregularity or mis-appreciation of evidence could be pointed out by accused---Petition was barred by 1159 days and no justification could 'be furnished for such delay to condone the same---Leave to appeal was refused.

Malik Aman v. State 1986 SCMR 17; Muhammad Shah v. State 1984 SCMR 278; Muhammad v. State PLD 1981 SC 635; Rehan v. State 1976 SCMR 72 and Emperor v. Santa Singh AIR 1944 Lah. 339 rel.

(b) Criminal trial---

----Investigation---Incompetent police official---Effect---Trial cannot be vitiated on the basis that a incompetent police official had conducted the investigation.

Sh. Muhammad Naeem, Advocate Supreme Court and Ch. Munir Sadiq, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 6th November, 2006.

2007 S C M R 834

[Supreme Court of Pakistan]

Present Rana Bhagwandas and Hamid Ali Mirza, JJ

ABDUL GHANI----Petitioner

Versus

Mst. SHAHEEN and others----Respondents

Civil Petitions Nos.90-K and 91-K of 2003.

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

----Ss. 115, 96, & O.XLIII, R.1---Revision would not lie, when an appeal lies.

(b) Limitation---

----Order passed in violation of mandatory provisions of law---Validity---Limitation--No period of limitation would run for challenging such order.

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

----Ss. 115, 96, 151 & O.XLIII, R.1---Order decreeing suit on basis of application under S.151, C.P.C.---Revision would be competent against such order for same being not appealable.

Abrar Hassan, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Petitioner.

Muhammad Sharif, Advocate Supreme Court and Suleman Habibullah for Respondents.

2007 S C M R 838

[Supreme Court of Pakistan]

Present: Falak Sher and Ch. Ijaz Ahmed, JJ

Ch. MUHAMMAD SHAFI----Petitioner

Versus

SHAMIM KHANUM----Respondent

C.P.L.A. No.2452-L of 2003, decided on 27th February, 2007.

(On appeal from the judgment/order, dated 23-5-2003 passed by the Lahore High Court, Lahore in Civil Revision No.1228 of 1998).

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

----S. 96---Appellate Court---Jurisdiction, exercise of---Principles---First Appellate Court has a right to reverse finding/conclusion of Trial Court, while exercising power under S.96, C.P.C. subject to condition that First Appellate Court has to meet reasoning of Trial Court in first instance and thereafter reappraise evidence on record, while reversing finding of Trial Court.

Madan Gopal's case PLD 1969 SC 617 rel.

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

---S. 115---Revisional jurisdiction of High Court, exercise of---Scope---High Court has wide power to reverse finding of First Appellate Court while exercising power under S.115, C.P.C., having supervisory jurisdiction.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Art.72---Limitation Act (IX of 1908), Art.113---Constitution of Pakistan (1973), Art.185(3)---Specific performance of agreement to sell---Agreement---Onus to prove---Pardahnashin and illiterate lady---Defendant executed agreement in 1961, whereby she had sold all her rights of compensation book (Settlement Department) in favour of plaintiff---Mutation in favour of defendant was sanctioned on 30-4-1992, while suit was filed on 30-9-1992--Suit dismissed by Trial Court was decreed in appeal---Judgment and decree passed by Appellate Court was set aside by High Court in exercise of revisional jurisdiction---Validity---Plaintiff was obliged to show that agreement was executed by defendant after having independent advice---Such fact was not proved by plaintiff as depicted from record---Plaintiff while purchasing compensation book from defendant should have been vigilant regarding subsequent event relating to issuance of Provisional Transfer Order in favour of defendant on 10-9-1963---Plaintiff did not file suit for specific performance within the period of three years in terms of Art.113 of Limitation Act, 1908, from the date of execution of agreement---Plaintiff even did not file suit immediately after sanctioning mutation in favour of defendant---Such conduct of plaintiff did not deserve discretionary relief to be granted in his favour---Subsequent conduct of parties was always a relevant factor for determination of status of document---Jurisdiction of Supreme Court in such matters under Art.185(3) of the Constitution was discretionary---Supreme Court declined to exercise its discretion in favour of plaintiff as Supreme Court normally did not interfere in findings of fact recorded by High Court while exercising power under Art.185(3) of the Constitution--Leave to appeal was refused.

Ghulam Ali's case PLD 1990 SC 1; M. Saeed Sehgal's case PLD 1964 SC 598; Haji Saifullah Khan's case PLD 1989 SC 166 and Nawab Syed Raunak Ali's case PLD 1973 SC 236 rel.

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

----Art. 100---Thirty years old document---Presumption of correctness--Applicability-Principles-Presumption regarding thirty years old document under Art.100 of Qanun-e-Shahadat, 1984, is permissive and not imperative---Court must consider evidence of documents, in order to enable itself to decide whether in any specific case it should or should not presume proper signature and execution---Court should be very careful about raising any presumption under Art.100 of Qanun-e-Shahadat, 1984, in favour of old documents specially when the same are produced during trial of suits which under proprietary rights are set up on the basis of such documents/deeds---Court may refuse to apply presumption where evidence in proof of document is available or where the evidence has been produced and disbelieved.

Ramchari's case AIR 1924 All. 869; Raghubar Singh's case AIR 1921 Oudh 55; Mansukh Panachand Shah's case AIR 1930 Born. 39 and Ram Naresh Singh's case AIR 1932 Oudh 227 rel.

(e) Equity---

----He who seeks equity must come with clean hands---Conduct of petitioner is always relevant and necessary for the purpose of exercising discretion.

Ch. Arshad Mahmood, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 27th February, 2007.

2007 S C M R 843

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Hamid Ali Mirza, JJ

LAL MUHAMMAD KALHORO and others----Petitioners

Versus

THE STATE----Respondent

Criminal Petition No.14 of 2005, decided on 31st March, 2005.

Criminal Procedure Code (V of 1898)---

----Ss. 497(1) & 498---Prevention of Corruption Act (II of 1947), S.5(2)---Penal Code (XLV of 1860), Ss.419/420/468/471/109---Pre-­arrest bail, confirmation of---No direct evidence was available with prosecution connecting applicants (Revenue Officials) with alleged forgery in Revenue Record or showing their involvement in grabbing of disputed land---Only evidence available on record in police papers against applicants consisted of vague statements of prosecution witnesses---Case against applicants was that of further enquiry---Two other accused having against them similar case had been admitted to pre-arrest bail---Applicants had joined investigation and got their statements recorded before Investigating Officer---Custody of applicants was not required for any investigation---Interim challan had been submitted---Commencement of trial in near future was not expected---Proposed departmental action against applicants would take sufficient time normally extending to years---Pre-arrest bail granted to applicants was confirmed.

Imtiaz Ahmed v. State PLD 1997 SC 545 ref.

Raja Qureshi, Advocate Supreme Court for Petitioners.

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

2007 S C M R 846

[Shariat Appellate Jurisdiction]

Present: Justice Javed Iqbal, Chairman Justices Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed Dr. Allama Khalid Mahmood and Allama Rashid Ahmad Jullundhari, Members

MUHAMMAD ASGHAR and another----Appellants

Versus

Mst. NAVEEDA SHAHEEN and others----Respondents

Criminal Shariat Appeals Nos.20 and 21 of 2004, decided on 29th December, 2006.

(On appeal from the order, dated 13-11-2003 of the Federal Shariat Court, passed in Criminal Miscellaneous Applications Nos.96-1 and 419-I of 2003 in Criminal Appeal No.49-I of 2002).

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

----S. 10(4)---Criminal Procedure Code (V of 1898), S.417(2)---Constitution of Pakistan (1973), Arts.203DD(2) proviso & 203F(2B)-Leave to appeal was granted by Supreme Court to consider the contention of accused that as per proviso to Art.203DD(2) of the Constitution, Federal Shariat Court was not competent to convert finding of acquittal into one of conviction and no order could be made to prejudice of accused unless he had an opportunity of being heard in his own defence---Even according to S.417(2), Cr.P.C. in an order of acquittal passed in any complaint case, an application was to be made by complainant seeking grant of special leave to appeal.

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

----S. 10(4)---Constitution of Pakistan (1973), Art.203F(2B)---Jurisdiction of Federal Shariat Court---Scope---Interlocutory order---Summoning of accused---All accused were acquitted by Trial Court in complaint filed by respondent, who filed petition for leave to appeal against the order of Trial Court---Federal Shariat Court converted petition for leave to appeal into appeal against acquittal and summoned the accused---Validity---Entertainment of petition against interim order and hearing of case piecemeal was not desirable---Pursuant to the provisions contained in Art.203F(2B) of the Constitution, petition before Supreme Court was not competent as neither any decision was made nor any order was passed by Federal Shariat Court but accused were just summoned---Such order of Federal Shariat Court could not be equated to that of an order which was yet to be passed by Federal Shariat Court---Supreme Court directed the Federal Shariat Court to dispose of appeal preferred on behalf of respondents after affording proper opportunity of hearing to all concerned---Appeal was dismissed.

Mushtaq Ahmad v. President, Special Military Court No.7, Karachi 1979SCMR 282 rel.

Dr. Babar Awan, Advocate Supreme Court for Appellants (in Criminal Shariat Appeal No.20 of 2004).

Ibad-ur-Rehman Lodhi, Advocate Supreme Court for Appellants (in Criminal Shariat Appeal No.21 of 2004).

Malik Rab Nawaz Noon, Advocate Supreme Court for Respondent No. 1 (in Criminal Shariat Appeal No.20 of 2004).

Ch. Munir Sadiq, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for the State (in both case).

Date of hearing; 13th November, 2006.

2007 S C M R 852

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

BANK OF CREDITS AND COMMERCE and others----Petitioners

Versus

ASRAR HASSAN and others----Respondents

Civil Petitions Nos.402-K and 403-K of 2006, decided on 22nd November, 2006.

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

----O. XIV, R.2---Question of fact or a mixed question of law and facts---Effective decision of such question not possible without recording of evidence.

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

---S. 20 & O.XIV, R.2---Question of territorial jurisdiction of court in Pakistan to entertain suit---Such question was not patently a question of law---Question of fact or a mixed question of law and facts could not be effectively decided without recording evidence.

S.A. Sarwana, Advocate Supreme Court and Ahmed Hassan Advocate Supreme Court.

Abrar Hassan, Advocate Supreme Court and A.A. Siddiqui Advocate-on-Record.

M.A. Wahab, Advocate-on-Record.

2007 S C M R 855

[Supreme Court of Pakistan]

Before Falak Sher and Ch. Ijaz Ahmed, JJ

MUHAMMAD HUSSAIN and others---Petitioners

Versus

E.D.O. (EDUCATION) and others---Respondents

C.P.L.As. Nos.1348-L to 1355-L of 2006, decided on 8th March, 2007.

(On appeal from the judgment/order dated 25-5-2006 passed by the Lahore High Court, Lahore in Appeals Nos.1736 to 1743 of 2004).

(a) Punjab Civil Servants (Efficiency and Disciplinary) Rules, 1999---

----Rr. 3(b) & 4(1)(b)(iii)---Punjab Service Tribunals Act (IX of 1974), S.4---Appeal---Misconduct, charge of---Compulsory retirement, penalty of---Civil servant not found guilty of charge during several inquiries---Reinstatement in service, but refusal of Service Tribunal to grant back-benefits to civil servant---Validity---Authority had not denied plea of civil servant raised in appeal as to non-remaining gainfully employed during relevant period---Civil servant had not been found gainfully employed anywhere during relevant period---Depriving civil servant from back-benefits for the period for which he remained out of job without any fault of his, would be unjust and harsh---Tribunal had decided controversy between parties without judicial application of mind---Impugned judgment was not sustainable in eyes of law---Supreme Court accepted appeal of civil servant.

Mansoor-ul-Haq's case 2004 SCMR 1308; Sher Muhammad Shahzad's case 2006 SCMR 421; Binyamin Masih's case 2005 SCMR 1032; Mehmood Ahmad Butt's case 2002 SCMR 1064 and Mrs. A.V. Issac's case PLD 1970 SC 415 rel.

(b) Civil service---

----Reinstatement in service---Back-benefits, grant of---Principle stated.

Grant of service back-benefits to an employee, who has been illegally kept away from employment is the rule and denial of such benefits to such a reinstated employee is an exception on the proof of such a person having remained gainfully employed during such a period.

Mansoor-ul-Haq's case 2004 SCMR 1308; Sher Muhammad Shahzad's case 2006 SCMR 421; Binyamin Masih's case 2005 SCMR 1032; Mehmood Ahmad Butt's case 2002 SCMR 1064 and Mrs. A.V. Issac's case PLD 1970 SC 415 rel.

(c) Precedent---

----Each and every case would be decided on its own peculiar circumstances and facts.

Muhammad Saleem's case 1994 SCMR 2213 rel.

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

----S. 4---Civil Procedure Code (V of 1908), Preamble---Appeal---Tribunal would be deemed to be civil court, thus, could take benefit of principles of C.P.C. while deciding appeal---Principles.

(e) Appeal (Civil)---

---Evasive reply to averments made in appeal would not be considered denial in law.

Sardar Muhammad Arshad Khan's case 1998 PLC (C.S.) 217; Ali Muhammad's case 1994 CLC 173 and National Bank of Pakistan's case 1996 CLC 79 rel.

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

---Ss. 4 & 5(2)---Constitution of Pakistan (1973), Art.4---Appeal---Duty of Tribunal to decide controversy between parties after judicial application of mind.

Gouranga Mohan Sikdar's case. PLD 1970 SC 158; Mollah Ejahar Ali's case PLD 1970 SC 173 and Messrs Airport Support Service's case 1998 SCMR 2268 rel.

Ghulam Nabi Bhatti, Advocate Supreme Court for Petitioners (in all petitions.)

Akhtar Ali Kureshi, A.A.-G. Pb., M. Gaiz-ud-Din, Acting D.E.O., MEE, Faisalabad for Respondents (in all petitions).

Date of hearing; 8th March, 2007.

2007 SCMR 860

[Supreme Court of Pakistan]

Present: Javed Iqbal and Abdul Hameed Dogar, JJ

AJAB KHAN and others----Appellants

Versus

GOVERNMENT OF N.-W.F.P. and others----Respondents

Civil Appeals Nos.1456, 1457, 2025, 2026 of 2004, decided on 16th January, 2007.

(On appeal from the judgment, dated 10-5-2004 of the Peshawar High Court Peshawar in R.F.As. Nos.61 and 62 of 1998).

Land Acquisition Act (I of 1894)---

----Ss. 11 & 18---Acquisition of land---Potential value of land---Determination---Landowners were not satisfied with the award announced regarding their land acquired by authorities---High Court in exercise of appellate jurisdiction, partly allowed the appeals of landowners and enhanced the compensation-.--Plea raised by land owners was that their land was situated at the bank of main road near to Abadi and was commercial in nature thus its potential value was much higher---Validity---Authorities could not shatter the stances of landowners though they were cross-examined at length---High Court was right in concluding that acquired land was situated near road, surrounded by Abadi and also being commercial had sufficient potential value---Determination of potential value of land on the basis of Aust Yaksala was not sufficiently rebutted hence the stance of authorities was without any substance---Supreme Court declined to interfere with judgment passed by High Court as rate of compensation was rightly enhanced after taking into consideration the market/potential value and evidence adduced by both the parties before Referee Judge---Appeal was dismissed.

Jan Muhammad Khan, Advocate Supreme Court for Appellants (in Civil Appeals Nos. 1456 and 1457 of 2004).

Abdul Qadir Khattak, Advocate Supreme Court for Respondents (in Civil Appeals Nos.1456 and 1457 of 2004).

Abdul Qadir Khattak, Advocate Supreme Court for Appellants (in Civil Appeals Nos.2025 and 2026 of 2004).

Jan Muhammad Khan, Advocate Supreme Court for Respondents (in Civil Appeals Nos.2025 and 2026 of 2004).

Date of hearing: 16th January, 2007.

2007 S C M R 863

[Supreme Court of Pakistan]

Present: Falk Sher and Ch. Ijaz Ahmed, JJ

MUHAMMAD RAFIQUE----Petitioner

Versus

MUHAMMAD IQBAL and others----Respondents

C. P.L.A. No.198-L of 2004, decided on 1st March, 2007.

(On appeal from the judgment/order, dated 18-11-2003 passed by the Lahore 'High Court, Lahore in Civil Revision 2647 of 2002).

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

----S. 12---Limitation Act (IX of 1908), Art.113---Suit for specific performance of agreement of sale---Limitation---Agreement by minor/vendor through his father containing clause that sale-deed would be executed in favour of vendee on attaining majority by minor---Suit by vendee after eleven years of attaining majority by minor--Validity---Vendee was at liberty to compel vendor on attaining his majority to execute sale-deed---Such case would not fall in second part of Art.113 of Limitation Act, 1908---Even if case of vendee fell in second part of Art.113 of Limitation Act, 1908, he must have approached court within reasonable time---Period of eleven years would not be reasonable time in any canon of justice---Suit was dismissed as barred by time.

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

----S. 115---Revision---Mistake or error committed by courts below---High Court had wide power to rectify such mistake or error.

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

----Art. 185(3)---Supreme Court would not generally substitute its own finding in place of finding of court below.

Muhammad Raiz Lone, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 1st March, 2007.

2007 S C M R 866

[Supreme Court of Pakistan]

Present: Javed Iqbal and Hamid Ali Mirza, JJ

ABDUL MAJID and others----Appellants

Versus

Mst. ZUBEDA BEGUM and others----Respondents

Civil Appeal No.1377 of 2001, decided on 25th September, 2006.

(On appeal from the judgment, dated 15-3-2001 of the Lahore High Court, Lahore, passed in Civil Revision No.357 of 1989).

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

----S. 5---Term "sufficient cause"---Scope---Words "Sufficient cause" as used in S.5 of Limitation Act, 1908, have their own impact and significance---Existence of "sufficient cause" is sine qua non for condonation of delay---As far as "sufficient cause" is concerned, neither it can be defined precisely nor a specific yardstick can be fixed for its determination, as it varies from case to case---Every cause for condonation of delay cannot be equated with that of "sufficient cause" which 'amounts to cogent reasoning, convincing justification and satisfactory explanation.

Sherin v. Fazal Muhammad 1995 SCMR 591 rel.

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

----Ss. 96 & 114---Limitation Act (IX of 1908), Ss.5 & 14---Filing of review instead of appeal---Condonation of delay---Contention of appellants was that time spent in seeking remedy of review by them should have been condoned---Validity---Since valuable rights had accrued in favour of respondents, it could not be snatched on the ground that a review was filed in good faith as appeal could. have been filed conveniently---Respondents could not be deprived of the valuable rights, which they had acquired due to laches and negligence of appellants---No illegality or irregularity could be pointed out by appellants warranting interference in judgment passed by High Court---Appeal was dismissed.

Sherin v. Fazal Muhammad 1995 SCMR 591; Rehmatullah v. Ulas Khan 1968 SCMR 975; Abdul Hamid v. Chief Settlement Commissioner, Lahore 1968 SCMR 120; Rahim Bux v. Settlement Authorities 1968 SCMR 78 and Ahmad Din v. Mst. Rasool Bibi 1968 SCMR 843 rel.

Jariullah Khan, Advocate Supreme Court for Appellants.

M.A. Qureshi, Advocate-on-Record for Respondent No.1.

Respondents Nos.2 and 3: Ex parte.

Date of hearing: 25th September, 2006.

2007 SCMR 870

[Supreme Court of Pakistan]

Present: Falak Sher and Ch. Ijaz Ahmed, JJ

HAKIM-UD-DIN through L.Rs. and others----Petitioners

Versus

FAIZ BAKHSH and others----Respondents

C.P.L.A. No.790-L of 2006, decided on 1st March, 2007.

(On appeal from the judgment/order, dated 15-3-2006 passed by the Lahore High Court, Multan Bench in Civil Revision No.174 of 1983).

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

----S. 15---Civil Procedure Code (V of 1908), O.VII, R.1---Qanun-e-Shahadat (10 of 1984), Art.117---Pre-emption suit---Plaint containing plea as to plaintiff's superior right of pre-emption---Non-appearance of plaintiff as witness to prove such plea---Effect---Pleadings were neither substitute of evidence nor substantive evidence---Averments in pleadings would carry no weight, unless proved through evidence or admitted by opposite party---Burden would lie on plaintiff to prove its claim alleged in plaint---Plaintiff in circumstances had failed to prove such plea.

Muhammad Sajjad Hussain's case 1991 SCMR 703; Muhammad Siddique's case 2001 SCMR 1443; Mst. Khair-un-Nisa's case PLD 1972 SC 25; Mst. Zarina's case PLD 1995 Kar. 388; Noor Muhammad's case PLD 1989 Lah. 31; Mst. Sakina's case 1986 CLC 288; Falak Sher's case 1992 MLD 1879; Mst. Sakina's case PLJ 1986 Kar. 456; Nizam-ud-Din's case 1991 CLC 1937 and Faqir Muhammad's case PLD 2003 SC 594 rel.

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

----O. VI, R.1, O.VII, R.1 & O.VIII, R.1---Pleadings i.e. plaint or written statement---Evidentiary value---Pleadings neither substantive evidence nor substitute of evidence---Averments made in pleadings would not carry weight, unless proved through evidence or admitted by opposite party.?

Mst. Khair-un-Nisa's case PLD 1972 SC 25; Mst. Zarina's case PLD 1995 Kar. 388; Noor Muhammad's case PLD 1989 Lah. 31; Mst. Sakina's case 1986 CLC 288; Falak Sher's case 1992 MLD 1879; Mst. Sakina's case PLJ 1986 Kar. 456; Nizam-ud-Din's case 1991 CLC 1937 and Faqir Muhammad's case PLD 2003 SC 594 rel.

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

----O. VI, R.1, O.VII, R.1 & O.VIII, R.1---Qanun-e-Shahadat (10 of 1984), Art.117---Pleadings i.e. plaint or written statement---Burden of proof would lie on the party alleging claim in plaint or written statement.?

Muhammad Sajjad Hussain's case 1991 SCMR 703 and Muhammad Siddique's case 2001 SCMR 1443 rel.

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

---- O. XLI, R.33---Findings of Trial Court on question of fact---Power of Appellate Court---Scope---Appellate Court had jurisdiction to reverse such findings and come to its own conclusion on basis of evidence adduced before Trial Court.?

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

----S. 115---Revision---Findings of Court below on question of fact or law---Interference by High Court---Scope---Such findings howsoever erroneous could not be interfered with by High Court in exercise of revisional jurisdiction under S.115, C.P.C., unless same suffered from jurisdictional defect, illegality or material irregularity.?

N.S. Venkatagiri Ayyangar's case PLD 1949 PC 26 and Ghulam Qadir's case PLD 19.88 SC 625 rel.

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

----S. 96 & O.XLI, R.33---Conflict between judgments of Trial Court and First Appellate Court---Effect---Normally judgment of First Appellate Court would be given preference over judgment of Trial Court---Exception stated.

It is a basic and fundamental' principle of administration of justice that in case there is a conflict between the judgments of the Trial Court and the First Appellate Court, then normally judgment of the First Appellate Court is to be given preference over the judgment of Trial, Court, unless and until the judgment of First Appellate Court is based on misreading or non-reading or in violation of the principles laid down by the superior courts.?

Hafiz Abdul Rehman Ansari, Advocate Supreme Court for Petitioners.

Kh. Farooq Ahmed, Advocate Supreme Court, Tanvir Ahmed, Advocate-on-Record and Syed M. Anvil Shah, DOR Layyah for Respondents.

Date of hearing: 1st March, 2007.

2007 SCMR 876

[Shariat Appellate Jurisdiction]

Present: Justice Javed Iqbal, Chairman, Justices Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed, Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullundhari Members

MUHAMMAD AKHTAR----Petitioner

Versus

THE STATE----Respondent

Jail Shariat Petition No.42 of 2005, decided on 16th November, 2006.

(On appeal from the judgment, dated 28-4-2005 of the Federal Shariat Court Bench at Lahore passed in Criminal Appeal No.48-L of 2003).

(a) Criminal trial---

----Substitution of real culprit with that of accused is a rare phenomena.

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

----Ss. 302(b) & 377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Art.12(a)---Juvenile Justice System Ordinance (XXII of 2000), S.6---Qanun-e-Shahadat (X of 1984), Art.21---Constitution of Pakistan (1973), Art.203 F (2B)---Reappraisal of evidence---Burden of proof on accused---Last seen evidence---Deceased was lastly seen with accused whereafter his dead-body was recovered---Trial Court convicted and sentenced accused to imprisonment for life, which was maintained by Federal Shariat Court---Plea raised by accused was that conviction and sentence could not be awarded only on the basis of last seen evidence without having a strong corroboration---Validity---Last seen evidence had been rightly relied upon by the courts below for the reason that statements of prosecution witnesses could not be discarded who had pointed out in unequivocal manner that deceased was lastly seen in the company of accused by whom deceased was taken away from his house on the pretext of peeling off sugarcane sticks---Recovery of Toki (weapon of offence) was found stained with human blood and medical evidence lent full corroboration to prosecution version---Accused had failed to furnish a plausible explanation that on which point and where the deceased separated from him---Accused could not discharge onus of burden which was upon him in view of provisions contained in Art.21 of Qanun-e-Shahadat, 1984---Defence version appeared to be an afterthought and the same had been rightly rejected by the courts below---Evidence which had come on record was rightly appreciated by Trial Court---Judgment passed by Federal Shariat Court being unexceptionable did not warrant interference---Leave to appeal was refused.

Rehmat v. State PLD 1977 SC 515 and Muhammad Amin v. State 2000 SCMR 1784 rel.

1969 SCMR 558; 1969 PCr.LJ 1108; PLD 1991 SC 718; 1999 ALD 48(i); PLD 1991 SC 434; 1991 SCMR 1601; 1998 PCr.LJ 722; PLD 1959 SC (Pak.) 269; PLD 1978 SC 21; 1991 PCr.LJ 956; PLD 1964 Quetta 6; 1971 PCr.LJ 211; 1980 PCr.LJ 164; 1998 SCMR 2669; PLD 1964 SC 67; PLD 1971 Lah. 781; 1972 SCMR 15; 1974 PCr.LJ 463; PLD 1971 Kar. 299; 1997 SCMR 1416; 1988 PCr.LJ 205; NLR 1988 Cr. 599; 1997 SCMR 1279; PLD 1978 BJ 31; 1997 SCMR 20; PLD 1997 SC 515; AIR 1927 Lah. 541; PLD 1956 FC 123; 1972 SCMR 15; PLD 1966 SC 644; PLD 1977 SC 515; AIR 1922 Lah. 181; AIR 1922 All. 340; PLD 1955 BJ 1; AIR 1932 Lah. 243; PLD 1971 Kar. 299; PLD 1953 FC 214 and PLD 1964 SC 167 ref.

Rafaqat Hussain Shah, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 16th November, 2006.

2007 S C M R 882

[Supreme Court of Pakistan]

Present: Falak Sher and Ch. Ijaz Ahmed, JJ

MUHAMMAD SHAHBAN and others----Petitioners

Versus

FALAK SHER and others----Respondents

C.P.L.A. No.3231-L of 2001, decided on 28th February, 2007.

(On appeal from the judgment/order, dated 15-8-2001 passed by the Lahore High Court, Lahore in Writ Petition No.1231 of 1991).

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

----S. 52---Civil Procedure Code (V of 1908), O.I, R.10---Transferee pendente lite---Impleading such transferee as party in suit---Transferee not alleged to have purchased property by fraud or misrepresentation or collusion with defendant---Held, transferee would be a proper party.

Mukhtar Beg's case 2000 SCMR 45 distinguished.

Mst. Sant Kaur's case AIR 1946 Lah. 142; Rustam Ali's case 1988 CLC 779; Malik Muhammad Iqbal's case 1990 CLC 670; PLD 1970 SC 288 and PLD 1993 SC 53 ref.

Khaista Jan's case 1984 SCMR 709; Rashid Ahmad's case 1997 SCMR 171; Fazal Karim's case PLD 2003 SC 818; M. Zafar-uz-Zaman's case PLD 2001 SC 449; Haji Abdullah's case 1987 SCMR 1825 and Abdul Wali Khan's case PLD 1975 SC 463 rel.

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

----O. I, R.10-Addition of parties in suit---Scope---Court vested with wide discretion to add parties at any stage of suit to avoid multiplicity of proceedings.?

Ghulam Ahmad Chaudhry's case PLD 2002 SC 615 rel.

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

----Arts. 189 & 190---Judgment of Supreme Court would be binding on each and every organ of the State.?

(d) Administration of justice---

----Judge must wear all the laws of country on the sleeve of his robe----Failure of counsel to properly advise Judge would not be a complete excuse in the matter.?

Muhammad Sarwar's case PLD 1969 SC 278 rel.

Mian Allah Nawaz, Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 28th February, 2007.

2007 S C M R 886

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Raja Fayyaz Ahmad, JJ

Mrs. FARKHANDA TALAT----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Establishment Division, Islamabad and others----Respondents

Civil Petition No.1043 of 2006, decided on 19th January, 2007.

(On appeal from the judgment, dated 1-9-2006 of the Federal Service Tribunal, Islamabad, passed in Appeal No.265(R) C.S. of 2003).

(a) Civil Servants Act (LXXI of 1973)---

----Ss. 3(2) & 11-A---Absorption of civil servant rendered surplus---Terms and conditions of service, change in---Principles---Fundamental principle which is enunciable from S.3 (2) of Civil Servants Act, 1973, is that the same hold out a guarantee to all civil servants that no action could ever be taken which could adversely affect terms and conditions of their service e.g. tenure of their employment; pay and grade earned by them through years of labour and hard work; right to promotion including legitimate expectancy of future advancement in their respective careers; retirement benefits such as pension, gratuity and provident fund etc. and all other terms and conditions which were prescribed by Chapter 11 of Civil Servants Act, 1973, and by other laws, rules and regulations relating to the subject---Such provisions contained in main body of S.11-A of Civil Servants Act, 1973 is a reiteration of the same principle assuring even employees who stood declared surplus that they would also be entitled to appointment to posts, carrying the basic pay scale equal to the posts held by them prior to being rendered surplus.

(b) Interpretation of statutes---

---Exceptions to general rules---Applicability---All provisions which create exception to general rules have to be construed rather strictly in their application to situations causing such deviations and moreso where the envisaged departure is not on account of any wrong doing on the part of the one likely to be affected by it.

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

---S. 11-A, proviso---Civil servant rendered surplus---Reverting to lower post---Pre-condition---Appointment of surplus civil servant to a lower post is not allowed under proviso to S.11-A of Civil Servants Act, 1973---Subjecting surplus civil servant to such a harsh treatment is permissible only on the satisfaction of a condition precedent prescribed by the proviso to S.11-A, Civil Servants Act, 1973 i.e. non-availability of an equivalent post.

(d) Civil Servants Act (LXXI of 1973)---

---Ss. 3(2) & 11-A---Civil servant rendered surplus, absorption of---Reverting to lower post---Civil servant was initially put in surplus pool acid despite availability of post she was not adjusted in her own pay and scale---Later on civil servant was transferred to another department against a lower post---Such act of authorities was maintained by Service Tribunal---Validity---Condition precedent permitting the kind of action assailed before Supreme Court was the non-availability of an equivalent post and not the non-availability of a requisition with Establishment Division for an equivalent post---Such an excuse offered by Establishment Division was far from being a sufficient satisfaction of condition precedent---Action of authorities could not be sustainable in law as nothing was available on record which could assist the Court to hold that no equivalent post had ever become available in the entire set up of Federal Government during the period civil servant remained in surplus pool---In absence of such a material, action of authorities appointing the civil servant to a lower post was an illegal and callous exercise of authority and the same was accordingly declared as such---Supreme Court converted petition for leave to appeal into appeal and judgment passed by Service Tribunal and notification of authorities appointing civil servant against lower post were set aside---Authorities were directed to appoint the civil servant with all back benefits to a post equivalent to the one held by her before being rendered surplus---Appeal was allowed accordingly.

Abdur Rehman Siddiqui, Advocate Supreme Court with Arshad Ali Ch. Advocate-on-Record for Petitioner.

Ms. Naheeda Mehboob Elahi, D.A.-G. with M.S. Khattak, Advocate-on-Record for Respondent No.1.

Sh. Naseer-ul-Haq, Additional Secretary and Aftab Mehmood, Joint Secretary.

Shahid Chaudhry, S.O. for Respondent No.2.

Nemo for respondent No.3.

Date of hearing; 19th January, 2007.

2007 S C M R 895

[Supreme Court of Pakistan]

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

BASHIR AHMED and another----Petitioners

Versus

MUSHTAQ AHMED----Respondent

Civil Petition No.560-L of 2006, decided on 27th September, 2006.

(On appeal from the judgment, dated 2-2-2006 of the Lahore High Court, Lahore passed in Civil revision No.2499 of 2001).

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

----S. 13---Pre-emption suit---Talb-i-Muwathibat; performance of---Non­-mentioning in plaint name of witness having conveyed information of sale to pre-emptor and witnesses happened to be present in meeting in which Talb-i-Muwathibat was made---Mentioning in plaint only names of two witnesses of Talb-i-Ishhad---Held: Pre-emptor for not having pleaded necessary particulars of Talb-i-Muwathibat in plaint had not satisfied the requirement of law.

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

----S. 13---Talb-i-Muwathibat and Talb-i-Ishhad, performance of---Necessity and proof---Concept of Talbs not merely a formality in Pre-emption Law, rather a mandatory requirement for exercise of right of pre-emption---Not possible for pre-emptor to succeed in suit without making such Talbs in accordance with requirement of S.13 of Punjab Pre-emption Act, 1991---Strict proof of Talbs would be required for exercise of right of pre-emption---Burden of proving requisite Talbs would lie on pre-emptor---Without mentioning in plaint making of Talb­i-Muwathibat with necessary particulars, such burden could not be discharged on basis of general assertion made in the plaint---In absence of proper proof of making Talb-i-Muwathibat, pre-emptor could not succeed in suit---Principles.

According to section 13 of the Punjab pre-emption Act, 1991, the performance of Talb-i-Muwathibat and Talb-i-Ishhad is essential for exercise of right of pre-emption, and if the first or second Talb is not made in accordance with the requirement of section 13 (ibid), then pre-emptor cannot succeed in the pre-emption suit.

Talb-i-Muwathibat is immediate demand of exercise of right of pre-emption on receipt of information of sale in the sitting in which pre-emptor receives information, and unless the place of meeting and time of making demand is mentioned in the plaint, it is not possible for pre-emptor to successfully establish the performance of Talb-i-Muwathibat, and in absence of proper proof of making first Talb, pre-emptor cannot succeed in the suit. The law does not require to make the gist of evidence in the pleading, but in the suit for pre-emption, omission of material facts relating to the performance of Talbs in the plaint may lead to a strong presumption that pre-emptor without fulfilling the requirement of the first Talb has filed the suit.

The Pre-emption Law in Pakistan is based on the principle of Muslim Pre-emption Law, which requires strict proof of Talb for exercise of right of pre-emption, therefore, it is essential for the pre-emptor to plead the necessary particular of Talbs in the plaint, failing which an inference shall be drawn that pre-emptor without fulfilling the requirement of Talbs strictly in accordance with law has exercised the right of pre-emption. The burden of proving the requisite Talbs is on the pre-emptor and unless, the performance of Talb-i-Muwathibat is specifically mentioned in the plaint with necessary particular, this burden cannot be discharged on the basis of general assertion made in the plaint. The concept of Talbs is not merely a formality in Pre-emption Law; rather it is mandatory requirement for exercise of right of pre-emption. Pre-emptor in present case having not pleaded the necessary particulars of Talb-i-Muwathibat in the plaint has not been able to satisfy the requirement of law.

Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 ref.

Ch. Muhammad Anwar Khan, Advocate Supreme Court and Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Petitioners.

Sh. Naveed Shaharyar, Advocate Supreme Court for Respondent.

Date of hearing: 27th September, 2006.

2007 S C M R 901

[Supreme Court of Pakistan]

Present: Javed Iqbal and Raja Fayyaz Ahmad, JJ

ABDUL KHALIQ alias MITHOO----Petitioner

Versus

Moulvi SHER JAN and others----Respondents

Civil Petition No.128-Q of 2006, decided on 26th December, 2006.

(On appeal from the judgment, dated 7-4-2006 passed by the High Court of Balochistan, Quetta in Civil Revision No.194 of 2002).

(a) Easements Act (V of 1882)---

----S. 15---Specific Relief Act (I of 1877), Ss.42 & 54---Suit for declaration and injunction---Plaintiff claimed right of way/passage over suit-land for last fifty years without any interruption---Plaintiff's claim was fully supported by his witnesses---Evidence on record showed that right claimed by plaintiff was not uncertain, rather same was enjoyed continuously, peacefully, openly and as right of easement without interruption---Passage claimed was in existence for last fifty years---Uninterrupted and continuous user for a period of more than twenty years prescribed by law would form foundation of a prescriptive right or right to be acquired by prescription, which has accrued in plaintiff's favour---Suit was decreed.

Easement Act 1983 by Mian Zahur-ud-Din pages 69-70; Pakistan National Oils Limited v. Sattar Muhammad 1980 SCMR 686; Ramdhin Singh v. Jadunandan Singh AIR 1915 Cal. 486; Valina Rama v. Emperor AIR 1928.Lah. 496; Abdullah v. Ahmad Khan 1988 CLC 1301; Sheo Nath v. Mughla AIR 1938 Lah. 800 and Pakistan Warranted Warehouse Ltd. v. Sindh Industrial Trading Estates Ltd. 1991 SCMR 119 rel.

(b) Easements Act (V of 1882)---

----S. 15---Acquisition of right of easement by prescription---Necessary conditions stated.

The following conditions must be fulfilled for acquisition of a right of easement by prescription:

(i) The right claimed must not be uncertain.

(ii) The right claimed must have been enjoyed.

(iii) It must have been enjoyed independently of any agreement with the owner or occupier of the land over which the right is claimed.

(iv) It must have been enjoyed (a) peaceably, (b) 'openly, (c) as of right, (d) as an easement, (e) without interruption, (f) for twenty years or sixty years, if the right is claimed against Government.

Out of the last six sub-conditions, (b) and (c) are not necessary in the case of easement of light and air or support. With this exception, all the conditions and sub-conditions must be fulfilled before a right of easement is acquired.

Easement Act 1983 by Mian Zahur-ud-Din pages 69-70 ref.

Ch. Mumtaz Yousaf, Advocate Supreme Court for Petitioner.

Salahuddin Mengal, Advocate-General for Balochistan for Respondents.

Date of hearing: 26th December, 2006.

2007 S C M R 905

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Ghulam Rabbani, JJ

GHULAM MUSTAFA----Appellant

Versus

MEMBER (JUDICIAL-V), BOARD OF REVENUE, PUNJAB and others----Respondents

Civil Appeal No.588 of 2003, decided on 19th October, 2006.

(On appeal from judgment, dated 19-2-2003 passed by the Lahore High Court, Lahore in Writ Petition No.2113 of 2003).

(a) Colonization of Government Lands (Punjab) Act (IV of 1912)---

----S. 19---Constitution of Pakistan (1973), Art.185(3)---Temporary Cultivation Scheme--Leave to appeal was granted by Supreme Court to consider whether after conferment of proprietary rights to respondent, no exchange could be permitted by Revenue authorities and that land in dispute could not be treated to be available till final decision was made in judicial remedies available to petitioner that he as allottee/Patadar of such land under Temporary Cultivation Scheme was entitled to conferment of proprietary rights.

(b) Colonization of Government Lands (Punjab) Act (IV of 1912)---

----S. 19---Temporary Cultivation Scheme---Allotment of land already stood transferred---Retrospective allotment---Grievance of appellant was that while his application for proprietary rights was still pending before Revenue authorities, the land in dispute stood transferred to respondent by Provincial Government---Validity---Disputed land stood transferred in the name of respondent by way of exchange allowed by Provincial Government, therefore, Revenue authorities could not sit over the order of Government and decide the fate of land by extending lease of appellant with retrospective effect after a lapse of 17/18 years even if the appellant was lessee of land or happened to be in possession of some portion thereof---Without going into the question whether review application filed by appellant before Board of Revenue was competent or not, Supreme Court did not find any substance in appeal---Appeal was dismissed.

Muhammad Munir Paracha, Advocate Supreme Court for Appellant.

Gul Zarin Kiani, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondent No.5.

2007 SCMR 910

[Supreme Court of Pakistan]

Present: Falak Sher and Ch. Ijaz Ahmed, JJ

Syed ANSAR RAZA ZAIDI and others----Petitioners

Versus

CHIEF SETTLEMENT COMMISSIONER and others----Respondents

C.P.L.A. No.706 and 707-L of 2006, decided on 2nd February, 2007.

(On appeal from the judgment/order, dated 15-2-2006 passed by the Lahore High Court, Lahore in Writ Petitions Nos.129 and 130/R of 1998 respectively).

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

----S. 2---Constitution of Pakistan (1973), Art.185(3)---Allotment---Deposit of auction money after repeal of evacuee laws Fraud and misrepresentation---Predecessors of petitioners were the highest bidders in auction proceedings conducted by Settlement Authorities, in year, 1968 but they neither deposited 1/4th of auction money at the spot, nor remaining 3/4th amount was deposited within 30 days from the date of confirmation of auction---Auction money was deposited by petitioners in year, 1989, and transfer orders were issued in years 1990 and 1992, by the authorities in favour of predecessors of petitioner---Settlement authorities, on receipt of complaint, initiated inquiry and declared the transfers result of fraud and misrepresentation---Such order was maintained by High Court, in exercise of constitutional jurisdiction--Validity---Even if predecessors of petitioners could have participated in auction proceedings and their bids were the highest, which were accepted by Settlement Authorities, the same were automatically cancelled in terms and conditions of auction under which plots in question were auctioned, as predecessors of petitioners could not deposit amounts within the prescribed period---Transfer orders were procured by petitioners on behalf of their predecessors after repeal of Settlement laws which were repealed vide Evacuee Property and Displaced Person Laws (Repeal) Act, 1975, according to which there was no case pending with regard to plots in question of predecessors of petitioners---Transfer orders procured by petitioners in years 1990 and 1992 were rightly declared to be without lawful authority by Notified Officer as well as High Court---Leave to appeal was refused.

Syed Ashfaque Ali's case PLD 2003 SC 132; Naeemullah Khan's case 2001 SCMR 1461 and Akhtar Munir's case PLD 2003 SC 603 rel.

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

----Art. 185(3)---Concurrent findings of fact by the Courts below---Scope---Supreme Court normally does not interfere in concurrent conclusion arrived at by the authorities and High Court.

Muhammad Aslam's case 2003 SCMR 1576 rel.

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

----S. 2---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction of High Court---Scope---High Court has no jurisdiction to substitute its own findings in place of findings of Notified Officer, while exercising constitutional power.

Syed Azmat Ali's case PLD 1964 SC260 rel.

Malik Amjad Pervaiz, Advocate Supreme Court for Petitioners.

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

2007 SCMR 914

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Syed Jamshed Ali, JJ

Begum Syeda AZRA MASOOD----Petitioner

Versus

Begum NOSHABA MOEEN and others----Respondents

Civil Petitions Nos.51 and 52 of 2006, decided on 18th January, 2007.

(Against the judgment, dated 26-10-2005 passed by Lahore High Court, Lahore in Civil Revisions Nos.2230 and 2641 of 2002).

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

----S. 9---Jurisdiction of civil court- Ouster clause in statute---Effect---Ouster clause in any statute, only applies when authorities constituted therein act within four corners of the statute---If authorities step on it, the protection available to orders passed by a tribunal of special jurisdiction is no more available and court of plenary jurisdiction can examine the controversy.

Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104 fol.

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

----S. 42---Evacuee Property and Displaced Persons Laws (Repeal) Ordinance (XV of 1974), S.2---Civil Procedure Code (V of 1908), Ss.9 & 115---Limitation Act (IX of 1908), Ss.3 & 5---Constitution of Pakistan (1973), Art. 185 (3)---Declaration of title---Concurrent findings of fact by courts below---Void order---Jurisdiction of civil court---Revisional jurisdiction---Condonation of delay---Principles---Suit property was an evacuee property and plaintiffs claimed to be owners in possession---Suit was decreed in favour .of plaintiffs and appeal against judgment and decree passed by Trial Court was dismissed by Lower Appellate Court being barred by limitation---Judgment and decree passed by Lower Appellate Court was maintained by High Court, in exercise of revisional jurisdiction---Plea raised by defendants was that civil court did not have jurisdiction to decide the matter, therefore, no limitation would run against void order, hence their appeal could not have been dismissed by Lower Appellate Court---Validity---Transfer orders in favour of predecessor of defendants was issued on 29-6-1974 and 30-6-1974, while evacuee laws had been repealed by virtue of Displaced Persons and Evacuee Laws (Repeal) Ordinance, 1974, thus after repeal of laws illegal order of transfer was sought to be enforced against plaintiffs---Defendants relied upon a letter issued by Settlement Authorities according to which suit property was provisionally reserved in favour of predecessor of defendants, whereas on such date reservation scheme had already been discontinued---Provisional Transfer Order issued in favour of predecessor of defendants was wholly without jurisdiction---Order of civil court was not coram non judice and bar of limitation was applicable with full force---Condonation of delay was within the discretion of Lower Appellate Court and, therefore, dismissal of appeal as barred by limitation was not open to any exception---Revision filed by defendants was also barred by time and provisions of S.5 of Limitation Act, 1908, being inapplicable, the same was rightly dismissed by High Court---Leave to appeal was refused.

Sher Bahadar Khan v. Qazi Islamuddin and another PLD 1984 SC 213 and Muhammad Rafique v. Abdul Ghafoor 1992 SCMR 1971 ref.

Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286 fol.

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

----S. 3---Void order---Limitation---Applicability---Void order is only a type of an illegal order and if it has created certain consequences, an aggrieved person must get rid of it---If it is accepted that no limitation runs against void order, then there may not be any limitation at all to challenge an illegal order by describing it as a void order, after any period say 5 years, 10 years, 20 years and so on---One of the objects of legal system, particularly to prescribe limitation, is to settle rights of parties and provide certainty in human affairs---If it is accepted that no limitation runs against void order, then it will have the effect of unsettling the rights and may affect transactions which may have taken place meanwhile and thus prejudice a third party.

Messrs Conforce Ltd. v. Syed Ali Shah and others PLD 1977 SC 599 and Sarfraz v. Muhammad Aslam Khan and another 2001 SCMR 1062 rel.

(d) Void order---

----Limitation---Applicability---Principles.

Messrs Conforce Ltd. v. Syed Ali Shah and others PLD 1977 SC 599 and Sarfraz v. Muhammad Aslam Khan and another 2001 SCMR 1062 rel.

Mian Muhammad Hanif, Advocate Supreme Court for Petitioner (in both Petitions).

Ch. Inayat Ullah, Advocate Supreme Court for Respondents Nos. 1 to 7 (in both petitions).

Muhammad Hanif Khatana, Additional Advocate-General for the State.

Date of hearing: 18th January, 2007.

2007 S C M R 922

[Supreme Court of Pakistan]

Present: Javed Iqbal and Hamid Ali Mirza, JJ

MUHAMMAD YAQOOB and others---Appellants

Versus

Messrs UNITED BANK LIMITED and others---Respondents

Civil Appeal No.592 of 2003, decided on 19th September, 2006.

(On appeal from the judgment dated 6-4-2000 of the Lahore High Court, Lahore passed in C.M. No.47/B of 1999).

(a) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)---

----S. 3---Civil Procedure Code (V of 1908), S.12 (2)---Constitution of Pakistan (1973), Art. 185 (3)---Leave to appeal was granted by Supreme Court to resolve the contradictory views expressed by Lahore High Court and Sindh High Court as reflected in judgments in cases titled Gold Star v. Muslim Commercial Bank, reported as 2000 MLD 421, Mian Munir Ahmed v. United Bank Limited and 3 others reported as PLD 1998 Kar. 278 and Messrs Tawakal Export Corporation and 5 others v. Muslim Commercial Bank Ltd. reported as i997 CLC 1342.

Gold Star v. Muslim Commercial Bank 2000 MLD 421; Mian Munir Ahmed v. United Bank Limited and 3 others PLD 1998 Kar. 278 and Messrs Tawakal Export Corporation and 5 others v. Muslim Commercial Bank Ltd. 1997 CLC 1342 ref.

(b) Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)---

----S. 3---Civil Procedure Code (V of 1908), S.12 (2)---Decree setting aside of---Provisions of S.12 (2) C.P.C.---Applicability---Application filed by appellant, under S.12 (2) C.P.C. for setting aside of decree was dismissed by Banking Court being not maintainable under Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997---Order passed by Banking Court was maintained by High Court---Validity---Provisions of Civil Procedure Code, 1908 continued to be applicable being not ousted by the provisions of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997---Order passed by High Court was set aside and application preferred on behalf of appellant under S.12 (2) C.P.C. would be treated as pending before High Court and to be disposed of in accordance with law on the merits by Banking Court---Appeal was allowed.

Gold Star v. Muslim Commercial Bank 2000 MLD 421; Mian Munir Ahmed v. United Bank Limited and 3 others PLD 1998 Kar. 278; Messrs Tawakal Export Corporation and 5 others v. Muslim Commercial Bank Ltd. 1997 CLC 1342 and Muhammad Ayub Batt v. Allied Bank Ltd. PLD 1981 SC 359 ref.

Mian Nusrat Ullah, Senior Advocate Supreme Court for Appellants.

Muhammad Afzal Sindhu, Advocate Supreme Court for Respondent No.1.

Nemo for Respondents Nos.2 to 7.

Date of hearing: 19th September, 2006.

2007 S C M R 926

[Supreme Court of Pakistan]

Present: Falak Sher and Ch. Ijaz Ahmed, JJ

RASHID AHMAD----Petitioner

Versus

SAID AHMAD----Respondent

C.P.L.A. No.656-L of 2003, decided on 1st February, 2007.

(On appeal from the judgment/order, dated 27-1-2003 passed by the Lahore High Court, Lahore in Civil Revision No.1190 of 2002).

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

----S. 115---Revisional jurisdiction of High Court---Scope---Findings on questions of fact or law, howsoever, erroneous the same may be, recorded by a court of competent jurisdiction, cannot be interfered with by High Court, in exercise of its revisional jurisdiction, under S.115 C.P.C., unless such findings suffered from jurisdictional defect, illegality or material irregularity.

N.S. Venkatagiri Ayyangar's case PLD 1949 PC 26; Mst. Shumal Begum's case 1994 SCMR 818; Muhammad Bashir's case 2003 SCMR 83; Muhammad Bakhsh's case 2003 SCMR 286 and Imam Din's case PLD 2005 SC 418 rel.

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

----S. 54---Constitution of Pakistan (1973), Art.185(3)---Concurrent findings of fact by the courts below---Suit for permanent injunction was dismissed, when Trial Court declined to grant ad interim injunction to plaintiff---Judgment and decree passed by Trial Court was maintained by Lower Appellate Court as well by High Court---Validity---All the courts below had given concurrent findings of fact against plaintiff---Supreme Court declined to interfere with findings of fact reached by all the cow is below, when it was satisfied that the findings of the courts below were on the whole reasonable and were not arrived at by disregarding any provision of law or any accepted principle concerning appreciation of evidence---Such would be notwithstanding that a different view might also be possible---Plaintiff failed to point out any illegality or infirmity in the judgment passed by High Court coupled with the fact that plaintiff also failed to raise any legal question---Leave to appeal was refused.

Shaukat Ali Mehr, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

2007 S C M R 929

[Supreme Court of Pakistan]

Present: Javed Iqbal and Raja Fayyaz Ahmad, JJ

BALOCHISTAN EMPLOYEES' SOCIAL SECURITY INSTITUTION through Commissioner and others----Petitioners

Versus

GATRON INDUSTRIES LIMITED----Respondent

Civil Petition No.3-Q of 2006, decided on 16th June, 2006.

(On appeal from the judgment, dated 11-11-2005 of the High Court of Balochistan, Quetta passed in Civil Miscellaneous Appeal No.4 of 2005).

Constitution of Pakistan (1973)----

----Art. 185(3)---Findings of fact by Courts below---Reappraisal of evidence by Supreme Court---Scope.

Ordinarily the Supreme Court would refuse to reappraise evidence, because the Court does not undertake this task, unless a substantial departure from some rule or principle relating to the appreciation of evidence has occurred. When the Court of first instance and the Court of Appeal arrives at concurrent findings of fact after believing the evidence of a witness, the Supreme Court as the final Court does not disturb such findings save in most exceptional cases. In the absence of a statutory bar, this practice could have been and was occasionally relaxed or deviated from in special cases which were found to have been of a very unusual nature and of public and general importance; but never, unless justice was found to have been miscarried as a result of either there not being a proper trial at all or on account of admission or reception of evidence, which was not legally admissible or for something so shocking, so outrageous or so gross as to shock the very basis of justice. This will be the case where there is such a disregard of the forms of legal process or such a violation of principles as amounts to a denial or perversion of justice. The disregard or violation should not be merely technical in character; it should be both grievous as well as substantial.

Abdul Majid v. State 1978 SCMR 31; British India N. CO. v. Abdur Razzak 19 DLR (SC) 177; Shamshad Ali Shah v. Hassan Shah 16 DLR (SC) 330; PLD 1961 SC 609; Bashir Ahmad v. Yaqub Shah 1962(1) PSCR 243; Muhammad Bachhal v. Crown PLD 1951 FC 140; Badri Rai v. State of Bihar AIR 1958 SC 953; Mathew v. T.C. State AIR 1956 SC 241; Ram Narain v. State of Punjab AIR 1955 SC 322; Sarfaraz Ali Khan v. Crown PLD 1951 FC 41; Sarfaraz Ali v. Crown 1951 FCR 78; Muhammad Sarfraz Khan v. Crown PLD 1953 FC 317; Khuda Bakhsh v. Crown PLD 1955 FC 378 and Gul Amir Khan v. Crown PLD 1951 FC 1 ref.

Kamran Murtaza, Advocate Supreme Court and M.W.N. Kohli, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing; 16th August, 2006.

2007 SCMR 933

[Supreme Court of Pakistan]

Present: Falak Sher and Ch. Ijaz Ahmed, JJ

PROVINCE OF PUNJAB through District Collector, Mianwali and others----Petitioners

Versus

MEHMOOD-UL-HASSAN KHAN----Respondent

C.P.L.A. No.2786-L of 2002, decided on 31st January, 2007.

(On appeal from the judgment/order, dated 8-5-2002 by the Lahore High Court, Lahore in Civil Revision No.3229-D of 1996).

Specific Relief Act (I of 1877)---

----S. 42---West Pakistan Land Revenue Act (XVII of 1967), S.80---Civil Procedure Code (V of 1908), Ss.20(c), 115 & O.VII, R.11---Constitution of Pakistan (1973), Art.185(3)---Rejection of plaint---Partial cause of action---Territorial jurisdiction of civil court---Determination---Arrears of land revenue, recovery of---Plaintiff, a contractor was declared to be defaulter---District Collector of the District in which plaintiff was running the contract passed an order for recovery of defaulted amount as arrears of land revenue---District Collector of the District, where plaintiff was residing initiated the proceedings against the plaintiff on such order---Plaintiff assailed the recovery proceedings before civil courts in the district of his residence---Authorities filed application under O.VII, R.11, C.P.C. on the ground that Trial Court did not have territorial jurisdiction over the cause of action---Trial Court allowed the application and rejected the plaint---Order passed by Trial Court was maintained by Lower Appellate Court but High Court in exercise of revisional jurisdiction set aside the orders passed by both the courts below and directed Trial Court to decide the case in accordance with law---Validity---As cause of action had partly arisen at the district of residence of plaintiff, therefore, High Court was justified to reverse the orders of the courts below, while exercising power under S.115, C.P.C.---Judgment passed by High Court was in accordance with S.20(c), C.P.C. and settled law---High Court after reappraisal of evidence on record had come to a definite conclusion that part of cause of action had accrued to plaintiff at' the district of his residence---Supreme Court, while exercising power under Art. 185 (3) of the Constitution, declined to interfere with finding of fact recorded by High Court---Leave to appeal was refused.

Jawahar Singh's case AIR 1926 Lah. 277 and Muhammad Yasin's case PLD 1993 SC 395 rel.

Muhammad Sharif Butt, Advocate Supreme Court for Petitioners.

Nemo for Respondent.

2007 S C M R 936

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and Mian Shakirullah Jan, J

MASOOD SARWAR----Petitioner

Versus

SADAQAT HUSSAIN and others----Respondents

Criminal Petition No.287 of 2006, decided on 21st December, 2006.

(On appeal from the judgment, dated 5-12-2006 passed by the Lahore High Court, Rawalpindi Bench in Criminal Appeal No.65 of 2001).

Penal Code (XLV of 1860)---

----S.302---Constitution of Pakistan (1973), Art.185(3)---Death penalty---Age of accused---Determination---Death penalty awarded to accused was set aside by High Court on the ground of his being minor at the time of commission of offence---Validity---Leave to appeal was granted by Supreme Court to consider; whether at the time of commission of crime, accused was minor or he manipulated his date of birth to show himself minor, subsequently to take benefit of law according to which the minor would not be awarded extreme penalty of death.

Sohail Iqbal v. The State 1993 SCMR 2377 and Sarfraz alias Sappi and 2 others v. The State 2005 SCMR 1758 Ref.

Shaukat Aziz Siddiqui, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2007 S C M R 938

[Supreme Court of Pakistan]

Present: Falak Sher and Ch. Ijaz Ahmed, JJ

ABDUL HAMEED and others----Petitioners

Versus

KHALID and others----Respondents

C.P.L.A. No.3064-L of 2003, decided on 2nd February, 2007.

(On appeal from the judgment/order, dated 2-10-2003 passed by the Lahore High Court, Lahore in Civil Revision No.1624-D of 1998).

Specific Relief Act (I of 1877)---

--S. 8---Civil Procedure Code (V of 1908), S.115---Constitution of Pakistan (1973), Art.185(3)---Revisional jurisdiction of High Court---Reversing concurrent findings of fact recorded by the courts below---Scope---Suit for possession was decreed by Trial Court in favour of plaintiffs---Judgment and decree passed by Trial Court was maintained by Lower Appellate Court but High Court in exercise of revisional jurisdiction under S.115, C.P.C. dismissed the suit---Plea raised by plaintiffs was that High Court, while exercising jurisdiction under S.115, C.P.C. could not disturb concurrent findings of fact---Validity---High Court had considered each and every piece of evidence with judicial application of mind and thereafter reversed the findings of fact recorded by the courts below---Courts below had given findings of fact without appreciation of evidence as both the courts below had appreciated the evidence in violation of settled law---Judgment passed by High Court was well-reasoned and based on well-founded ground realities on the basis of evidence available on record---High Court was competent to reverse findings of Lower Appellate Court when it was based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of facts and consideration and inadmissible evidence---Findings of Lower Appellate Court could not be considered as sacrosanct and had rightly been reversed by means of judgment of High Court, which was well-reasoned---Leave to appeal was refused.

Malik Amjid Pervaiz, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

2007 S C M R 941

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Falak Sher, JJ

Sheikh SHAHZAD alias FAREED AHMED----Petitioner

Versus

Mian ABDUL MAJEED and 2 others----Respondents

Civil Review Petition No.34 of 2004 in Civil Petition No.2443 of 2001, decided on 24th January, 2007.

(On review from this Court judgment, dated 12-12-2003 in Civil Petition No.2443 of 2001).

Civil Procedure Code (V of 1908)---

----O. VII, R.26 & O.XXII, R.3(2) [as amended by Law Reforms Ordinance (XII of 1972)]---Constitution of Pakistan (1973), Art.188---Supreme Court Rules, 1980, O.XXVI---Review of Supreme Court judgment---Non-impleading of legal heir---Predecessor-in-interest of petitioner was a respondent in Constitutional petition before High Court, who died during pendency of the petition---Petitioner was not arrayed as one of the respondents in that Constitutional petition, as a legal heir of deceased respondent---Constitutional petition was decided against legal heirs of predecessor-in-interest of petitioner---Petitioner assailed the judgment before Supreme Court, but leave to appeal was refused solely on the ground that he was not the legal heir of the deceased respondent---Review of the judgment passed by Supreme Court was sought on the ground that he was a legal heir of deceased respondent and was not impleaded as a respondent in Constitutional petition; in support of his plea, the petitioner filed special power of attorney executed by all legal heirs in his favour---Validity---Provisions concerning abatement of civil causes had long been deleted from Civil Procedure Code, 1908, through Law Reforms Ordinance, 1972, thereafter, legal heirs of any person dying during pendency of litigation automatically become bound by the decision against their predecessor-in-interest, even without impleadment---Judgment passed by High Court would be binding on all legal heirs of deceased respondent provided they were the legal heirs---Petitioner, if happened to be the son of deceased respondent, was bound by such decision and hence was a party directly affected by such judgment but without impleadment---Petitioner, therefore, was entitled to file a petition or appeal, as the case might be, against such judgment---In case of being a son, petitioner was never a stranger to the proceedings; it was a matter, of common sense that if one legal heir of some one admitted any other to be his co-legal heir, he had made a statement against his own interest by admitting the other one as his co-owner in the property to be shared by that other---Special power of attorney given by as many as eleven legal heirs of deceased respondent in favour of petitioner, describing him as son of deceased respondent was an unavoidable document that could not be ignored by any stretch of reason---Supreme Court, while passing the order under review, primarily fell into the confusion created by the petitioner as well as by his alias and omitted to consider the most important document in shape of special power of attorney---Supreme Court, in the interest of justice, found that there existed strong circumstances for review of the judgment passed earlier---Supreme Court declared that the petitioner was not stranger and he deserved to be heard in the petition dismissed earlier, which was restored for rehearing on merits---Review petition was allowed.

S.M. Naseem, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.

Ch. Mushtaq Ahmed Khan, Advocate Supreme Court with Arshad Ali Ch., Advocate-on-Record for Respondents.

2007 S C M R 945

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Ch. Ijaz Ahmed, JJ

ABDUL HAMID and another----Appellants

Versus

DILAWAR HUSSAIN alias BHALLI and others----Respondents Civil

Appeal No.96 of 2003, decided on 9th February, 2007.

(On appeal from the judgment, dated 13-7-1999 passed by the Lahore High Court, Lahore, in Civil Revision No.424-D of 1983).

Specific Relief Act (I of 1877)---

----S. 8---Civil Procedure Code (V of 1908), S.11, O.VII, Rr.11 & 13---Second suit---Principles of res judicata---Applicability---Earlier suit was decreed in favour of plaintiff but due to non-deposit of deficient court fee, the plaint was rejected---Plaintiff filed second suit on the same cause of action but all the courts below dismissed the suit being hit by principles of res judicata---Validity---Courts below did not advert to O.VII, R.13 C.P.C. wherein it was evident that rejection of plaint did not preclude presentation of fresh plaint---Such plaint was not liable to be dismissed on the principle of res judicata regarding filing a fresh suit on the same cause of action---Rejection of plaint was not an adjudication on merits and it was a decree only by fiction, therefore, there was no bar to file fresh suit---Judgments and decrees passed by the Courts below were set aside and case was remanded to Trial Court to decide the same afresh on merits after framing of proper issues in view of pleadings of parties strictly in accordance with law---Appeal was allowed.

Sakhi Muhammad's case PLD 1992 SC 256; Abdul Satar's case 1995 MLD 1563; Munawwar Hussain's case 2001 YLR 1241; Mian Khan's case 1989 SCMR 58; Mst. Kaneez Fatima's case PLD 1973 Lah. 495; Abdul Majid's case 1984 CLC 2392; Abdul Majeed's case 1993 SCMR 1686 and Sher Muhammad's case 1984 CLC 3292 rel.

(b) Interpretation of statutes---

----Statute must be read as an organic whole.

Mian Nawaz Sharif's case PLD 1993 SC 473 and Mst. Iqbal Begum's case PLD 1993 Lah. 183 rel.

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

----O. VII, R.11---Rejection of plaint was not an adjudication on merits and it was decree only by fiction.

Mirza Hafiz-ur-Rehman, Advocate Supreme Court for Appellants.

M. Munir Paracha, Advocate Supreme Court for Respondents.

Date of hearing: 6th February, 2007.

2007 SCMR 951

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Mian Shakirullah Jan and Saiyed Saeed Ashhad, JJ

SHAHID HUSSAIN ABBASI, ASSISTANT PROFESSOR OF LAW----Appellant

Versus

SECRETARY TO THE GOVERNMENT OF N.-W.F.P. EDUCATLON DEPARTMENT and others----Respondents

Civil Appeal No.1535 of 2006, decided on 9th February, 2007.

(On appeal from the judgment, dated 7-12-2005 passed by N.-W.F.P. Service Tribunal in Appeal No.1089 of 2003)

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

----S. 4---Notification of Government of N.-W.F.P. (Finance Department), dated 22-8-1983---Appeal---Advance increment, grant of---Education Department---Lecturer in Law (BPS-17)---Obtaining of LL.M. degree by appellant during service---Refusal of Service Tribunal to grant advance increment to appellant for he was not LL.M. at the time of his induction in service---Validity---Benefit of such incentive would go to employee, who had obtained degree during service, which he was not possessing at the time of his induction in service---Degree of LL.M. was equal to M.Phil.---Appellant, while being in service had improved his education, thus, was fully entitled to incentive of advance increment--Supreme Court accepted appeal, set aside impugned judgment and directed department to grant advance increment to appellant in view of Notification of Government of N.-W.F.P. (Finance Department), dated 22-8-1993.

Appellant in person.

Muhammad Zaman Bhatti, Advocate Supreme Court (on behalf of Advocate-General, N.-W.F.P.) and Nayar Naik, D.S. Finance Department, N.-W.F.P. for Respondents.

2007 S C M R 953

[Supreme Court of Pakistan]

Present: Falak Sher and Ch. Ijaz Ahmed, JJ

PROVINCE OF PUNJAB through Collector, Sargodha and others----Petitioners

Versus

MUHAMMAD AKHTAR----Respondent

C. P. L. A. No.2442-L of 2002, decided on 31st January, 2007.

(On appeal from the judgment/order, dated 14-5-2002 passed by the Lahore High Court, Lahore in Civil Revision No.2413 of 1996).

Specific Relief Act (I of 1877)---

----S. 54---Constitution of Pakistan (1973), Art. 185 (3)---Permanent injunction, grant of---Principle of waiver and estoppel---Applicability---Concurrent . findings of fact by the courts below---Plaintiff purchased plot in question, in open auction, at higher price because in master plan, there was an open space in front of it---Subsequently, authorities intended to auction the open space by converting same in commercial plot---Action of authorities was assailed in civil suit, which was dismissed by Trial Court but Lower Appellate Court allowed the appeal and decreed the suit in favour of plaintiff---Judgment and decree passed by Lower Appellate Court was maintained by High Court in exercise of revisional jurisdiction---Validity---Both the courts below had given concurrent findings of fact that plot in question was auctioned in accordance with law in open space to plaintiff, whose bid was the highest, which was accepted and approved along with open space in front of plot in question---Authorities had no lawful authority to change master plan subsequently on the principle of estoppel and wavier---Supreme Court declined to interfere with the judgment "and decree passed by High Court---Leave to appeal was refused.

Ghulam Rasool's case PLD 1971 SC 376; Abdul Razzaq's case PLD 1994 SC 512; Ardeshir Cowasjee's case 1999 SCMR 2883; Dr. Zafarullah Ch.'s case 2004 YLR 1672 and New Garden Town's case 2001 CLC 1589 rel.

Muhammad Hanif Khatana, Additional Advocate-General, Punjab for Petitioners.

Nemo for Respondents.

2007 S C M R 957

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

ABDUL QAYYUM----Petitioner

Versus

MUHAMMAD SADIQ----Respondent

Civil Petition No.1920 of 2004, decided on 7th August, 2006.

(On appeal from the judgment, dated 14-6-2004 passed by Lahore High Court, Rawalpindi Bench, in Civil Revision No.243-D of 2002).

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

----Ss. 13 & 14---Qanun-e-Shahadat (10 of 1984), Art.71---Pre-emption suit---Talb-i-Muwathibat, performance of---Proof through Attorney---Scope and validity---Pre-emptor claiming performance of Talb-i-Muwathibat in person---Appointment of attorney by pre-emptor after filing of suit---Attorney having no direct knowledge of performance of Talb-i-Muwathibat and Talb-i-Ishhad by pre-emptor,. but having been told there about by the pre-emptor---Non-appearance of pre-emptor in witness-box despite being available and not suffering from any disability to appear before court---Witnesses of Talb-i-Muwathibat supported pre-emptor's claim---Statement of attorney in court about performance of such Talbs to be based on knowledge' of pre-emptor---Evidentiary value---Pre-emptor could not maintain suit without proving Talb-i-Muwathibat being foundation for exercise of right of pre-emption--Exception provided under S.14 of Punjab Pre-emption Act, 1991 would meet a situation in which either pre-emptor was a minor or was invalid or was not in a position in the ordinary circumstances to make Talb-i-Muwathibat in person and appear in court in person---Pre-emptor could appoint an attorney to pursue suit, but Talb-i-Muwathibat being a personal act of pre-emptor would be required to be proved by him through his own statement and an attorney would not be substitute of pre-emptor under law---Statement of attorney being based on hearsay evidence would not prove performance of Talb-i-Muwathibat to have been made stricto senso as per requirement of law to succeed in suit for pre-emption---Principles.

Mst. Hasan Bano v. Wali-ur-Rehman and others Civil Appeals Nos.1446 to 1448 of 2000; Falak Sher Khan v. Qalam Khan 1995 'CLC 1077; Amir Badshah v. Amin-ul-Haq 2005 CLC 325; Irshad Ullah v. Muhammad Arshad 2005 CLC 1774 and Muhammad Shafi v. Sikandar Khan 2004 MLD 650 ref.

Muhammad Sharif Khan v. Mst. Ismat Bi and 4 others PLD 1982 SC (AJ&K) 76; Syed Abdul Rasheed v. Mst. Tajunnisa 1982 CLC 954 and Naveed Ahmed v. Naseer Ahmad 2003 MLD 274 rel.

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

----S. 13---Pre-emption suit---Talb-i-Muwathibat and Talb-I-Ishhad, performance of---Proof---Right of pre-emption being a piratical right, pre-emptor could not maintain suit without proving Talb-i-Muwathibat, as it was a foundation for exercise of right of pre-emption---Pre-emptor could not succeed without proving performance of both such Talbs strictly in accordance with provisions of S.13 of Punjab Pre-emption Act, 1991---Principles.

Abdul Rashid Awan, Advocate Supreme Court and Muhammad Ahmed Zaidi, Advocate-on-Record for Petitioner.

Muhammad Munir Peracha, Advocate Supreme Court and Ejaz Ahmed Khan, Advocate-on-Record for Respondent.

Date of hearing: 7th August, 2006.

2007 S C M R 962

[Supreme Court of Pakistani]

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

AHMAD HASSAN----Appellant

Versus

MUHAMMAD ASLAM----Respondent

Civil Appeal No.713 of 2000, decided on 24th January, 2007.

(On appeal from the judgment of the Lahore High Court, Multan Bench, Multan, dated 30-5-2000 passed in R.F.A. No.177 of 1996).

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

----S. 13---Right of pre-emption, exercise. of---Talb-i-Muwathibat---Proof---Issue not raised before High Court---Trial Court dismissed suit of plaintiff on the ground that he had failed to prove Talb-i-Ishhad---High Court in exercise of appellate jurisdiction reversed the finding on issue relating to Talb-i-Ishhad and decreed the suit---Plea raised by vendee was that although date was given in plaint, yet none of the witnesses including pre-emptor deposed about the same in evidence, therefore, Talb-i-Muwathibat was not proved---Contention of pre-emptor was that issue relating to Talb-i-Muwathibat was not raised before High Court, therefore, it could not be raised before Supreme Court---Validity---Pre-emptor had to prove in evidence the date of making Talb­-i-Muwathibat mentioned by him in plaint, failing which suit was liable to be dismissed---Date mentioned in plaint on which Talb-i-Muwathibat was made, was not proved in evidence---Issue on Talb-i-Muwathibat was framed by Trial Court and finding was given thereon---Even if, before High Court, issue of Talb-i-Muwathibat was not agitated by vendee, Supreme Court was not prevented from giving its findings when issue was framed and evidence was led thereon---Supreme Court declined to remand the case to High Court for giving finding on the issue as no factual determination was required, for it was apparent on the face of record that pre-emptor failed to prove in evidence the date of Talb-i-Muwathibat mentioned in plaint---As date of making of Talb-i-Muwathibat was not established, finding of Trial Court on such issue was reversed being contrary to principles laid down by Supreme Court---Judgment and decree passed by High Court was set aside and suit of pre-emptor was dismissed---Appeal was allowed.

Atiq-ur-Rehman v. Muhammad Amin PLD 2006 SC 309 fol.

Nagendra Nath v. Rain Bharosa AIR 1914 Cal. 839; Saheb Khan v. Muhammad Punnah PLD 1994 SC 162; Abdul Qayum v. Mushk-e-Alam 2001 SCMR 798 and Muhammad Amin v. Attiq-ur-Rehman 2005 CLC 1772 ref.

Muhammad Munir Peracha, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Appellant.

Gul Zarin Kiyani, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent.

Date of hearing: 24th January, 2007.

2007 S C M R 966

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

Mst. NAJMA----Petitioner

Versus

Mst. FARHA REHAN----Respondent

C.P.L.A. No.178-K of 2006, decided on 19th October, 2006.

(On appeal from order of Sindh High Court, Karachi dated 28-2-2006 passed in High Court Appeal No.195 of 2004).

Specific Relief Act (I of 1877)---

----Ss. 8 & 54---Constitution of Pakistan (1973), Art.185(3)---Recovery of possession, permanent injunction and damages---Consent decree, non-compliance of---Defendant, during pendency of suit, made an offer for return of .her earnest money received by plaintiff---Such offer was accepted by plaintiff and suit was accordingly decreed---Instead of abiding by her solemn commitment and consent decree, plaintiff preferred appeal against the decree, which appeal was dismissed by High Court---Plea raised by plaintiff was that she had not authorized her husband acting as her attorney to enter into any compromise---Validity---Supreme Court did not agree with the plea that husband acting as attorney of plaintiff was not authorized to enter into a compromise or settlement on her behalf---Conduct of plaintiff was far from satisfactory and propriety which had reflected on her lack of integrity and fairness and could only be regretted and deprecated---Supreme Court advised the counsel to discourage such clients and not to accept such briefs before superior Courts, which always led to tarnish the image of noble profession of law as well as judiciary---Petition being ill-founded, ill-advised and incompetent was dismissed with special costs---Leave to appeal was refused.

Iftikhar Javed Qazi, Advocate Supreme Court and Akhlaq Ahmad Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 19th October, 2006.

2007 S C M R 969

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

ENAYAT SONS (PVT.) LTD.----Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary, Finance and others----Respondents

Civil Petition No.462-K of 2006, decided on 6th December, 2006.

(On appeal from the judgment, dated 3-8-2006 in Civil Revision No.56 of 2003 passed by the High Court of Sindh, bench at Sukkur).

Per Hamid Ali Mirza, J; Rana Bhagwandas, J. agreeing.

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

----Art. 114---Contract Act (IX of 1872), Ss.15 & 16---Recovery of damages---Principle of estoppel----Applicability---Coercion or undue influence---Proof---Factual controversy---Suit for damages decreed by Trial Court in favour of plaintiffs, was dismissed by Appellate Court and revision filed by plaintiffs was dismissed by High Court---Plea raised by plaintiffs was that Certificate of No Demand issued by them was due to coercion and undue influence exerted by authorities---Validity---Plaintiffs gave Certificate of No Demand to the authorities in respect of final payment made to them stating therein that they had no further claim under the contract beyond the net amount of final bill---.Such statement of No Demand towards and no further claim by plaintiffs operated as estoppel against them---Plaintiffs did no lead any evidence in respect of coercion or undue influence within the meaning of Ss.15 and 16 of Contract Act, 1872, to prove that such Certificate of No Demand was given by them under coercion and under undue influence having been exercised by authorities---Case of plaintiffs was based on factual controversy between the parties in respect of claim of damages on which concurrent findings were arrived at by Appellate Court and affirmed by High Court---When there being no misreading or non-reading of evidence was pointed out, such concurrent findings of fact could not be interfered with in by Supreme Court---Plaintiffs failed to point out any substantial question of law within the meaning of Art.185(3) of the Constitution---Leave to appeal was refused.

Sualeh Sons (Pvt.) Ltd. v. Karachi Development Authority 1997 CLC 893; Muhammad Hussain v. Sheikh Muhammad Tufail and others 1981 SCMR 877; Asmatullah Khan and others v. Jhangi Khan and others 1995 SCMR 207; Waris Khan and 2 others v. Mst. Zainab Nisa and others 1997 SCMR 526; Karachi Tannery (Pvt.) Ltd. v. Muhammad Yousaf through Legal Heirs 2002 SCMR 680; Sardar Muhammad and another v. Akram and others 2002 SCMR 807; Messrs Huffaz Seamless Pipes Industries Ltd. v. Messrs Security Leasing Corporation Ltd. 2002 SCMR 1419 and Yaqub Masih Jacob v. Mrs. Louisa De 'Souza 1992 SCMR 1799 rel.

Per Rana Bhagwandas, J.

(b) Contract Act (IX of 1872)---

----Ss. 15 & 16---Constitution of Pakistan (1973), Art. 185 (3)---Recovery of damages---Judgment at variance---Principles---Suit for damages decreed by Trial Court in favour of plaintiffs was dismissed by Appellate Court and revision filed by plaintiff was dismissed by High Court---Validity---In the event of conflict between judgments of Trial Court and Lower Appellate Court, preference should be given to the views of Lower Appellate Court, who had the opportunity of examining and analyzing the evidence of parties---Such rule was neither absolute nor inflexible---In case the judgment of Appellate Court was not well founded and reasons assigned for taking a different view from that of Trial Court appeared to be not warranted by record, it could not be preferred---Lower Appellate Court had carefully, correctly and consciously analyzed, oral as well as documentary evidence which had been rightly affirmed and not interfered with by High Court---Judgments of both the forums below were thus, not open to any exception---In view of concurrent findings of fact by two Courts below, including High Court, no ground was made out for interference by Supreme Court in exercise of its jurisdiction---No question of law of public importance was spelt out---Leave to appeal was refused.

Bilal A. Khawaja, Advocate Supreme Court and Akhlaq Ahmad Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 10th October, 2006.

2007 S C M R 977

[Supreme Court of Pakistan]

Present: Falak Sher and Ch. Ijaz Ahmed, JJ

Mst. NASIR BIBI and others----Petitioners

Versus

MUHAMMAD SHAFIQUE AHMAD and another----Respondents

C.P.L.A. No.2584-L of 2002, decided on 27th February, 2007.

(On appeal from the judgment/order, dated 15-5-2002 passed by the Lahore High Court, Lahore in R.F.A. No.184 of 1994).

Income Tax Ordinance (XXXI of 1979) ---

----S. 136---Constitution of Pakistan (1973), Art.l85(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 referred questions High Court had replied two, while no finding was given on 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 5.136 of Income Tax Ordinance, 1979---Judgment of High Court was correct to which no exception could be taken---Leave to appeal was refused.

Nazar Muhammad's case PLD 1974 SC 22; Ashfaq-ur-Rehman's case PLD 1971 SC 766; Thakurdas and another v. Topandas and others AIR 1929 Sindh 217; Ghansham Singh Tirathsingh and another v. Mohamed Yacoob AIR 1933 Sindh 257; Khuda Bukhsh's case 1974 SCMR 279; Syed Azmat Ali's case PLD 1964 SC 260 and Nawabzada Raunak Ali's case PLD 1973 SC 236 rel.

Pir Saeed Kaleem Khurshid, Advocate Supreme Court for Petitioners.

Mahmood Khan, Advocate Supreme Court and Mahmood-ul-Islam Advocate-on-Record for Respondents.

2007 S C M R 980

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

MOBEEN KHAN----Petitioner

Versus

GOVERNMENT OF SINDH and others----Respondents

C.P.L.A. No.206-K of 2006, decided on 12th October, 2006.

(On appeal from the order of High Court of Sindh, Karachi, dated 4-4-2006 passed in Revision Application No.40 of 1996).

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Constitution of Pakistan (1973), Art.185(3)--Constitutional jurisdiction of Supreme Court, under Art.185(3)---Scope---Concurrent findings of fact by the courts below---Suit decreed in favour of plaintiff by Trial Court was dismissed by Appellate Court and revision thereagainst was also dismissed by High Court---Validity---Findings of fact recorded by Appellate Court did not suffer from misreading of record, misconstruction of evidence, misconception of law or error of jurisdiction---Appellate Court, in exercise of its appellate jurisdiction was fully competent to discuss and dilate upon merits of evidence and arrive at a conclusion different from the one arrived at by Trial Court---Reasons recorded by Appellate Court for arriving at its finding, being neither perverse nor defective High Court did not find it a fit case for interference---Supreme Court, in its revisional jurisdiction endorsing the view of High Court, refused to grant leave to appeal.

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

Nemo for Respondents.

Date of hearing: 12th October, 2006.

2007 SCMR 983

[Supreme Court of Pakistan]

Present: Falak Sher and Ch. Ijaz Ahmed, JJ

Mst. HAKAM BIBI through L.Rs.----Petitioners

Versus

KHUSHI MUHAMMAD through L.Rs.----Respondents

C.P.L.A. No.3262-L of 2003, decided on 26th February, 2007.

(On appeal from the judgment/order, dated 9-12-2003 passed by the Lahore High Court, Lahore in Civil Revision No.1491 of 2003).

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

----S. 12---Civil Procedure Code (V of 1908), S.48, O.XX, R.14 Sc. O.XXI, R.38---Limitation Act (IX of 1908), Art.181---Execution petition, filing of-Limitation-Decree holders, sought execution of decree for specific performance of agreement to sell finalized in their favour---Judgment debtors filed objection petition on the ground that execution petition was barred by limitation as it had been filed after more than three years---Executing Court and Lower Appellate Court dismissed the objection petition and appeal respectively, filed by judgment debtors but High Court in exercise of revisional jurisdiction allowed the objection---Validity---Suit for specific performance of agreement to sell was a suit for possession---Possession being already with decree-holders since execution of agreement to sell, therefore, they were not required to file execution petition for possession of the suit property from judgment debtors---Decree-holders could file execution petition on refusal of judgment debtors for the remaining part of decree---Was not in the knowledge of High Court that decree holders had deposited the balance amount within the time specified in the decree---Judgment of High Court was, therefore, judgment per incurrium on account of failure of parties regarding deposit of balance amount within the prescribed period---Judgment in favour of decree holders was conditional subject to payment of balance amount which had already been deposited by them within the prescribed period, therefore, decree holders could be awarded relief in terms of O.XX, R.14, C.P.C., wherein, after satisfying the decree regarding payment, decree holder was not required to file execution petition---Rights having accrued to decree-holders, it was not fair to deprive the decree-holders, the benefit of decree after depositing amount by them---Supreme Court converted petition for leave to appeal into appeal and set aside the judgment passed by High Court---Appeal was allowed accordingly.

Muhammad Nazir's case 2003 SCMR 436; Maj. (Retd.) Hamid Ali's case 2006 SCMR 735; Rahim Ali's case 2006 CLC 1824 and Anjum's case PLD 1989 Lah. 103 ref.

Ch. Abdul Qayyuum's case 1992 SCMR 241; Muhammad Wazir's case PLD 1949 Lah. 1 and Syed Phul Shah's case PLD 1991 SC 1051 rel.

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

----S. 48---Limitation Act (IX of 1908), Art.181---Law Reforms Ordinance (XII of 1972), S.3---Execution of decree---Period of limitation---Principles---First application for execution of decree, after the enforcement of Law Reforms Ordinance, 1972, would be governed by residuary Art.181 of Limitation Act, 1908, and rest of the applications made thereafter, would be governed by six years period of limitation prescribed by S.48, C.P.C.

Matloob Khan's case PLD 1990 SC 778; National Bank of Pakistan's case 1996 SCMR 759 and Maqbool Ahmad's case 1995 CLC 358 rel.

(c) Administration of justice---

----Each and every case is to be decided on its own peculiar circumstances and facts.

Muhammad Saleem's case 1994 SCMR 2213 rel.

Sh. Naveed Shahryar, Advocate Supreme Court and Haji M. Rafi Siddiqui, Advocate-on-Record for Petitioners.

Akhtar Masood Awais, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Respondents.

2007 SCMR 990

[Supreme Court of Pakistan]

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

GHULAM HUSSAIN through Legal Heirs and others----Appellants

Versus

GHULAM MUHAMMAD through L.Rs. and another----Respondents

Civil Appeal No.94 of 2005, decided on 2nd February, 2007.

(On appeal from, the judgment, dated 30-9-2002 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Civil Revision No.306-D of 1996).

Islamic law---

----Gift---Validity---Concurrent findings by three Courts in succession holding transfer by gift to be genuine and valid transaction---Validity---Validity or otherwise of transaction of gift was a pure question of fact---Supreme Court would ordinarily not interfere with such concurrent findings---Earlier suit filed by donor through her next friend to declare gift to be void had been dismissed, wherein she was adjudged to be of sound mind while making gift in favour of donee---Supreme Court dismissed appeal in circumstances---Constitution of Pakistan (1973), Art.185.

Malik Muhammad Jahanzeb Khan Tamman, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Appellants.

Gulzarin Kiani, Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Respondents Nos.1(i) to (vi).

Pirzada Noor Ali Shakoor, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Respondent No.2.

Date of hearing: 2nd February, 2007.

2007 S C M R 992

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Sardar Muhammad Raza Khan and Falak Sher, JJ

Malik ATTIQUE----Petitioner

Versus

SHOAIB alias LABBA and another----Respondents

Criminal Petition No.460-L of 2005, decided on 11th December, 2006. (On appeal from the judgment, dated 11-7-2005 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.2 of 2005 in Criminal Appeal No.435 of 2004).

Penal Code (XLV of 1860)---

----S. 300---Constitution of Pakistan (1973), Art.185(3)---Qatl-i-Amd---Petitioner was aggrieved by order of High Court suspending death sentence of respondent in an appeal against conviction and death sentence awarded for committing act of Qatl-i-Amd---Grounds which weighed with Division Bench of the High Court for suspension of sentence of respondent appeared to be that as per. ocular account respondent was attributed only ineffective firing in air and that hearing of appeal would consume a great deal of time---No ground for interference with exercise of discretion of the High Court was made out as it did not suffer from any serious illegality, legal infirmity or error of jurisdiction---Since the High Court was seized with the appeal of respondent and co-convicts, it could not be said that by suspending the sentence, it acted without jurisdiction---No ground having been made out for the grant of leave to appeal, petition was dismissed.

Muhammad Afzaal Siddiqui, Advocate Supreme Court with Mian Atta-ur-Rehman Advocate-on-Record for Petitioner.

Khurram Latif Khosa, Advocate Supreme Court with Faiz-ur-Rehman, Advocate-on-Record for Respondent No.1.

Chaudhry M. Sadiq, Additional Advocate-General Punjab for the State.

Date of hearing: 11th December, 2006.

2007 S C M R 994

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Ch. Ijaz Ahmed, JJ

LATIF ULLAH----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.3/L of 2007, decided on 5th January, 2007.

(On appeal from the judgment/order, dated 29-11-2006 passed by the Lahore High Court Lahore in Criminal Appeal No.483 of 2001 decided along with Murder Reference No.296 of 2001).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Converting death sentence into imprisonment for life---Sudden fight---Single fire shot---Absence of motive---Death sentence awarded to accused by Trial Court was converted into imprisonment for life by High Court on the ground that the occurrence had taken place at the spur of the moment, without any previous motive or premeditation and only single shot was fired by accused---High Court as well as Trial Court had recorded findings of guilt against accused after proper appraisal of prosecution evidence and plea taken by accused---Accused accepted conviction under S.302(b), P.P.C. but sought indulgence of High Court for reduction of sentence of death which was accordingly reduced to imprisonment for life---Judgment of High Court did not suffer from any defect or other legal infirmity---Supreme Court declined to interfere with the conviction and sentence passed by High Court---Leave to appeal was refused.

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

Mrs. Yasmin Saigol, Deputy Prosecutor General, Punjab for Respondent.

Date of hearing: 5th January, 2007.

2007 SCMR 996

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

Mst. HAMEEDA BEGUM and others----Appellants

Versus

Mst. IRSHAD BEGUM and others----Respondents

Civil Appeal No.1458 of 2004, decided on 25th January; 2007.

(On appeal from judgment of the Lahore High Court, Lahore dated 24-5-2004 passed in Civil Revision No.530-D of 2000).

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

----Art. 100---Thirty years old registered document---Presumption---Presumption of due execution is available in favour of registered documents---Such presumption would be stronger in the case of registered deed being more than thirty years old by virtue of Art.100 of Qanun-e-Shahadat, 1984.

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

----Arts. 117 & 120---Transfer of property---Onus to prove---Principles---Executant, in case of transfer of immovable property having denied transaction, onus would shift to beneficiaries of the instrument

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

----S. 42---Qanun-e-Shahadat (10 of 1984), Arts.72, 117 & 120---Document---Proof---Producing of document in statement of counsel--Plaintiff assailed registered gift deed made in favour of predecessor-in-­interest of defendants on the ground of her legal disability of being minor---Plaintiff relied upon a copy of birth certificate produced by her counsel in his statement---Trial Court held plaintiff as minor at the time of execution of gift deed and decreed the suit in her favour---Lower Appellate Court allowed the appeal and set aside judgment and decree passed by Trial Court but High Court in exercise of revisional jurisdiction restored the judgment and decree passed by Trial Court---Validity---As the birth certificate was not produced through any witness but was placed on record by counsel of plaintiff, behind the back of predecessor-in-interest of defendants without notice to them with the consequence that it was taken on record and was exhibited---In presence of strong and serious objection taken in pleadings, it would be ridiculous to assume that defendants had waived the mode of proof of such document, which on the face of it seemed to be highly doubtful and manoeuvred---Supreme Court declined to admit such birth certificate as a reliable piece of evidence---Document of gift was neither void nor incompetently executed by reason of age---Plaintiff was neither defrauded nor deprived of her right to dispose of her property in an unwarranted manner---Judgment and decree passed by High Court was set aside and that of Lower Appellate Court was restored---Appeal was allowed.

Gulzar Hussain v. Abdur Rehman 1985 SCMR 301 ref.

Jannat Bibi v. Sikandar Ali PLD 1990 SC 642 and Abdul Rahim v. Jannatay Bibi 2000. SCMR 346 distinguished.

Ihsanul Haq Chaudhry, Advocate Supreme Court for Appellants.

Gulzarin Kiani, Advocate Supreme Court for Respondent No.1.

Respondents Nos.2 to 10: Ex parte.

Date of hearing: 25th January, 2007.

2007 S C M R 1005

[Supreme Court of Pakistan]

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

Mirza, JJ

PERVAIZ HUSSAIN and another----Petitioners

Versus

ARABIAN SEA ENTERPRISES LIMITED----Respondent

Civil Petition No.662-K of 2005, decided on 13th October, 2005.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Easements Act (V of 1882), S.60---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Constitution of Pakistan (1973), Art.185(3)---Interim injunction, grant of---Prima facie case and balance of convenience---Tenant or licensee, status of---Proof---.Plaintiff claimed to be owner in possession of suit shops and sought injunction against the defendants from repossessing the shops---High Court granted temporary injunction in favour of plaintiff---Division Bench of High Court disposed of the High Court appeal filed by defendants with a direction to parties to maintain status quo---Plea raised by defendants was that they were not licensees and were paying rent as tenants, therefore, application for interim injunction should have been dismissed---Validity---No sufficient material was available on record to give any prima facie finding about status of parties, High Court in appeal ought to have set aside the injunctive order because such conclusion itself disclosed that plaintiff had failed to make out a prima facie case---Plaintiff had failed to prima facie establish before High Court that defendants were licensees---Balance of inconvenience, because of stoppage of business, was in favour of defendants and Division Bench of High Court erred in directing the parties to maintain status quo other than status quo ante---Supreme Court converted petition for leave to appeal into appeal and set aside injunction granted by High Court--Appeal was allowed.

Abdul Rashid Khan and 8 others v. President, Services Institute P.A.F. Base, Lahore through Incharge and 2 others 1999 MLD 1870; Ghulam Rasool v. Muhammad Waris Bismil 1994 MLD 527 and Abdullah Bhai and others v. Ahmad Din PLD 1964 SC 106 ref.

Makhdoom Ali Khan, Advocate Supreme Court and Abdul Qadir Khan, Advocate Supreme Court assisted by Khurram Shehzad, Advocate along with A. Aziz Khan, Advocate-on-Record for Petitioners.

S.M. Zafar, Senior Advocate Supreme Court along with Syed Ali Zafar, Advocate Supreme Court and Arshed Ali Chaudhry, Advocate-on-Record for Respondent.

Date of hearing: 13th October, 2005.

2007 S C M R 1008

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Ghulam Rabbani, JJ

MUHAMMAD SALEEM----Appellant

Versus

FEDERATION OF PAKISTAN through President President's Secretariat, Islamabad and 3 others----Respondents

Civil Appeal No.398 of 2004, decided on 21st December, 2006.

(On appeal from the judgment, dated 12-4-2001 of the Federal Service Tribunal, Islamabad in Appeal No.1624(K) of 1998).

(a) Foreign Exchange Bearer Certificate Rules, 1985---

----R. 4---Central Board of Revenue's Circular No.4, dated 1-7-1985---Foreign Exchange Bearer Certificate---Bearer of `such certificate would be immune from disclosing source of income---Principles.

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

----Rr. 5 & 6---Inquiry Officer deputing another Officer to hold inquiry and record statement of witness---Validity---Such act of Inquiry Officer would be without lawful authority.

(c) Government Servants (Efficiency and Discipline) Rules, 1973------

----Rr. 3(b), 4(1)(ii)(iv), 5 & 6---Misconduct, charge of---Authorised Officer recommended penalty of compulsory retirement---Competent Authority, while imposing penalty of dismissal from service neither gave show-cause notice to civil servant nor recorded reason for dissenting with penalty recommended by Authorized Officer---Impugned penalty was against the settled norms of justice, thus was not sustainable in law.

Muhammad Ismail Solangi v. Deputy Inspector-General, Pakistan Railways Police HQs Office Lahore and others 2002 PLC (C.S.) 255; Rafi Ahmed Pervaiz Bhatti v. Government of Pakistan Cabinet Secretariat, Establishment Division through Secretary Establishment PLD 2003 SC 382; Jan Muhammad v. The General Manager, Karachi Telecommunication Region, Karachi and another 1993 SCMR 1440 and Managing Director, N.B.F. Islamabad and others v. Muhammad Arif Raja PLD 2006 SC 175 ref.

(d) Government Servants (Efficiency and Discipline) Rules, 1973------

----R. 4(1)(i)(iv)---Order of dismissal of from service---Essentials---Such order must be based on some evidence.

Samiuddin Qureshi v. Collector of Customs PLD 1989 SC 335 fol.

M.M. Aqil Awan, Advocate Supreme Court for Appellant.

Ms. Soofia Saeed, Standing Counsel for Respondents Nos.1, 2 and 4

Akhlaq Ahmed Siddiqui, Advocate-on-Record for Respondent No.3

Date of hearing: 21st December, 2006.

2007 S C M R 1014

[Supreme Court of Pakistan]

Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ

SAJID----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.47 of 2005, decided on 30th December, 2006.

(On appeal from the judgment of Lahore High Court, Lahore, dated 8-4-2004 passed in Criminal Appeal No.125/J of 2001).

Penal Code (XLV of 1860)---

----Ss. 302(b) & 452-Constitution of Pakistan (1973), Art.185(3)---Occurrence had taken place in broad-daylight in the courtyard of the house of the deceased---Eye-witnesses being the inmates of the house were most natural witnesses of the incident and despite being related to the deceased but having no enmity or malice against the accused, they were quite independent witnesses---Notwithstanding the minor discrepancies and contradictions in the prosecution, evidence, credibility of the testimony of the eye-witnesses duly corroborated by medical evidence, motive and attending circumstances of the case, was of unimpeachable character---Eye-witnesses could not be expected to measure the exact distance and any discrepancy in describing the distance was of no significance---Concurrent finding of the two Courts below qua the guilt of accused did not suffer from any misreading or non-reading of evidence or any material defect---Leave to appeal was refused to accused in circumstances.

Zulfiqar Ahmad Bhutta, Advocate Supreme Court for Petitioner.

Sheikh Mehmood Ahmed, Advocate Supreme Court for the State.

Date of hearing: 30th December, 2005.

2007 S C M R 1017

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Abdul Hameed Dogar, JJ

Crl. P.L.A. No.17-K of 2007

THE STATE through Advocate-General, Sindh----Petitioner

Versus

ZAHID ALI----Respondent

(On appeal from order of High Court of Sindh, Circuit Court, Larkana, dated 11-1-2007 passed in Criminal Revision Application No.3 of 2005).

Crl. P.L.A. No.18-K of 2007

THE STATE through Advocate-General, Sindh----Petitioner

Versus

AFTAB AHMAD----Respondent

(On appeal from order of High Court of Sindh, Circuit Court, Larkana, dated 11-1-2007 passed in Criminal Revision Application No.4 of 2005).

Cr.Ps.L.A. Nos.17-K of 2007 and 18-K of 2007, decided on 26th February, 2007.

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

----Ss. 439 & 417---Constitution of Pakistan (1973), Art.185(3)---Criminal revision petitions against acquittal were dismissed by the High Court, as being incompetent---Contention of the petitioner/State was that even though criminal revision petitions against the order of acquittal recorded by a competent Court may not be competent, in all fairness, High Court ought to have converted the petitions as memos of appeals against acquittal in terms of S.417, Cr.P.C., as both the criminal petitions were erroneously filed within time allowed for filing of appeal against acquittal---Validity---View taken by the High Court, on the face of record, appeared to be hyper-technical and the Court was supposed to be aware of the provisions of law applicable in a case, no party could be non-suited merely because a wrong provision of law had been cited at the Bar---Supreme Court, in circumstances, granted leave to appeal against the impugned order of the High Court.

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

----Art. 185(3)---Petition for leave to appeal---View taken by the High Court, on the face of record, appeared to be hyper-technical and the Court was supposed to be aware of the provisions of law applicable in a case, no party could be non-suited merely because a wrong provision of law had been cited at the Bar---Supreme Court, in circumstances, granted leave to appeal against the impugned order of the High Court.

Dr. Qazi Khalid Ali, Additional Advocate-General, Sindh for Petitioner.

Nemo for Respondents.

2007 S C M R 1019

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Ch. Ijaz Ahmed and Syed Jamshed Ali, JJ

MUHAMMAD AMIN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No. 166 of 2004, decided on 28th June, 2006.

(On appeal from the judgment dated 9-7-2002 passed by the Lahore High Court in Criminal Appeal No.445 of 1997).

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

----Ss. 302, 324, & 337-A---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to accused only to consider the question of sentence.

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

----Ss. 302, 324 & 337-A---Appraisal of evidence---Sentence, reduction in---Mitigating circumstances---Age of accused given in his statement under S.342, Cr.P.C. as 18/19 years was never challenged at any stage, which indicated that he was 17/18 years old at the time of occurrence--Supreme Court had ordinarily extended indulgence to an accused of such an age, unless his act had disentitled him to said indulgence or compassion---Record did not show that accused had acted in a brutal manner unworthy of indulgence---Even otherwise, accused in his defence plea had stated that he had caused a single blow to the deceased only to protect his honour when the deceased had made an attempt to commit sodomy with him---Accused had also suffered seven injuries on his person during the occurrence about which the Doctor in his cross-examination had, no doubt, stated that the possibility of the injuries having been caused by a friendly hand could not be ruled out, but it was not a categorical opinion and the expression "possibility" did not obviate the effect of the rule laid down in the precedent case-law qua mitigation of sentence---Sentence of death of accused was reduced to imprisonment for life in circumstances.

Sohail Iqbal v. The State 1993 SCMR 2377; Muhammad Afzal v. State 1999 MR 2851; Ijaz Hussain v. The State 2002 SCMR 1455; Umar Hayat v. Jahangir and another 2002 SCMR 629; Zulfiqar alias Bhutto v. The State 1995 SCMR 1668 and Muhammad Saleem v. State 2001 SCMR 536 ref.

Ch. Ali Muhammad, Advocate Supreme Court and A.H. Masood, Advocate- on-Record for Appellant.

Ch. Ghulam Murtaza, Advocate Supreme Court for the Complainant.

Ch. Munir Sadiq, Advocate Supreme Court for the State.

2007 S C M R 1023

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

PAKISTAN STEEL MILLS CORPORATION (PVT.) LTD.---Petitioner

Versus

PAKISTAN INDUSTRIAL CREDTT AND INVESTMENT CORPORATION LIMITED and another---Respondents

C.P.L.A. No.677-K of 2004, decided on 16th November, 2006.

(On appeal from judgment of High Court of Sindh, Karachi dated 28-6-2004 passed in High Court Appeal No.54 of 2004).

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

----Ss. 9, 17 & 19---Civil Procedure Code (V of 1908), S.12(2)---Suit for recovery of loan amount---Plot leased out by lessor in favour of borrower-company for setting up joint venture---Company obtained loan from Bank by mortgaging leased plot---Execution of consent decree obtained by Bank against company in suit---Application under S.12(2), C.P.C., by lessor that leased plot could not be sold out in execution of decree as company had no saleable and marketable interest therein---Plea that company before mortgaging plot had obtained `No Objection Certificate' from lessor---Validity---Lessor being a shareholder and Director in company would be legally bound by contracts, acts and deeds executed and performed by and on behalf of company---Lessor could not be heard to say that he was not impleaded in suit---Lessor could not make out a case of commission of fraud, misrepresentation or want of jurisdiction on the part of company, when suit was decreed in favour of Bank---Application under S.12(2), C.P.C. was dismissed in circumstances.

M. G. Dastagir, Advocate Supreme Court and Akhlaq Ahmad Siddiqui, Advocate-On-Record for Petitioner.

Habibur Rehman, Advocate Supreme Court for Respondent No. l.

Nemo for Respondent No.2.

Date of hearing: 16th November, 2006.

2007 S C M R 1026

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J. Abdul Hameed Dogar and Saiyed Saeed Ashhad, JJ

COMMISSIONER OF INCOME-TAX, COMPANIES III, KARACHI and others---Appellants

Versus

Messrs PAKISTAN ELECTRIC MANUFACTURING CO. LTD.----Respondent

Civil Appeal No.761 of 2000, decided on 27th April, 2006.

(On appeal from the judgment, dated 2-1-2000 passed by High Court of Sindh, Karachi in I.T.A. No.158 of 1998).

Income Tax Ordinance (XXXI of 1979)---

----S. 139---Constitution of Pakistan (1973), Art.199---Order of Appellate Tribunal dated 5-5-1996---Petitioner, instead of challenging such order before High Court made different applications there against to authorities and Tribunal, but failed---Appeal before High Court filed on 16-6-1998 against order of Tribunal dated 5-5-1996---High Court converted appeal into constitutional petition and accepted the same---Validity---Order of Tribunal dated 5-5-1996 had attained finality much before filing of appeal before High Court---Supreme Court set aside impugned judgment of High Court---Principles.

Akhtar Ali Mehmood, Advocate Supreme Court and A.R. Khattak, Advocate-on-Record for Appellants.

Nemo for Respondent.

2007 SCMR 1028

[Supreme Court of Pakistan]

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

GHULAM MUHAMMAD and others----Appellants

Versus

SHAMIM AHMAD KHAN through L.Rs.----Respondents Civil Appeal

No.1053 of 2003, decided on 28th February, 2007.

(On appeal from the judgment, dated 19-9-2002 passed by the High Court, Rawalpindi Bench, Rawalpindi in Regular Second Appeal No.419 of 1980).

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

----S. 15---Land Reforms Regulation, 1972 (M.L.R.115), Para. 25(3) (d)---Pre-emption suit---First/superior right of tenant---Sinker, principle of---Applicability---Such right of tenant would automatically operate as part of Pre-emption Laws and would be liable to succeed or to be defeated in accordance with principles of such law---Sinker being a principle evolved through case-law would be followed even in cases involving right of a tenant.

(b) Pre-emption---

----Sinker, plea of---Scope---Burden of proof---Such plea being a question of fact and favourable to pre-emptor should normally be raised by him in plaint, and not by vendee for same being detrimental to him---Plea of divisibility of sale, if raised by vendee during evidence or at any stage of trial, then Trial Court would frame issue to such effect placing on him onus to prove---Principles.

The principle of sinker applies to and against the defendant vendee and hence, the plea of sinker detrimental to the defendant cannot be raised by a defendant. Being a question of fact and favourable to the pre-emptor, it should normally be raised by the plaintiff/pre-emptor, but he too might be reluctant, because by taking this plea, which may or may not be accepted finally, he would be taken the risk of accepting the superior right of some of the defendant or defendants whom he would like to sink with those having inferior right. It is quite intriguing for the plaintiff as well. Anyhow, if a party is expected to cover all the aspects of a case in pleadings, then the plea of sinker requires to be raised in the plaint by the pre-emptor.

Be that as it may, one thing is settled that the principle of sinker is a question of fact and becomes all the more serious when the vendee raises plea of divisibility of sale. Whenever such plea is raised during evidence or at any stage of trial, then Trial Court should frame an issue to that effect placing burden on the defendant to prove.

?If Trial Court frames an issue about sinker, then vendee would have an opportunity to prove that it is not applicable because of divisibility of sale.

?Civil Appeals Nos.1015 and 1016 of 1995 fol.

Gulzarin Kiani, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Appellants.

Ch. Afrasiab Khan, Advocate Supreme Court for Respondents.

Date of hearing: 28th February, 2007.

2007 S C M R 1032

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Raja Fayyaz Ahmad, JJ

KHUDA BAKHSH and others----Appellants

Versus

MUZAFFAR through L.Rs. and others----Respondents

Civil Appeals Nos.1378 of 2001 and Civil Petitions Nos.537/L of 2001, 250/L and 2842/L of 2002, decided on 7th February, 2007.

(On appeal from the judgment, dated 15-12-2000 of the Lahore High Court, Lahore, passed in R.S.As. Nos.43 and 29 of 1982 and Writ Petition No.21545 of 1998).

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

----S. 42---Constitution of Pakistan (1973), Art.185(3)---Declaration of title---Fact not in issue---Suit-land was leased out to predecessor-in­-interest of plaintiffs but Government passed an order for resumption of the same---Suit was finally decreed in favour of plaintiffs by High Court---Some of the plaintiffs/petitioners assailed judgment and decree passed by High Court on the ground that two plaintiffs/respondents were not entitled to the fruits of decree passed by High Court---Validity---Issues struck at trial were essentially about resumption of suit-land by Government---No issue had been struck and in fact none had even claimed at trial about entitlement of the persons claiming the land as heirs/successors of original lessee---If anyone had any reservation about entitlement of anyone else to land in question then remedies would always be available to him/them for the purpose---Supreme Court declined to interfere with the judgment and decree passed by High Court---Leave to appeal was refused.

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

----Art. 185(3)---Petition for leave to appeal---Limitation---Petitions for leave to appeal were filed beyond limitation---One petition was barred by 349 days, while the other was barred by 536 days---Effect---Explanation offered for condonation of inordinate delay of about a year in one case and about 1-1/2 years in the other was the usual excuse of' lethargy in various offices/departments of Government---Supreme Court never considered such excuse as sufficient ground for condonation of delay--Leave to appeal was refused.

Ch. Khurshid Ahmed, Advocate Supreme Court for Appellants (in Civil Appeal No.1378 of 2001).

Ihsanul Haq Bhalli, Advocate Supreme Court with M.A. Qureshi, Advocate-on-Record for Petitioners (in C.P. No.537/L of 2001).

Mrs. Afshan Ghazanfar, A.A.-G. For petitioners (in Civil Petitions Nos.250/L and 2842/L of 2002).

Gulzarin Kiani, Advocate Supreme Court with Mehr Khan Malik, Advocate-on-Record for Respondents Nos.1-3 (in Civil Appeal No.1378 of 2001).

Abdul Rashid Awan, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Respondents 4, 5 and 16 (in Civil Appeal No.1378 of 2001).

Arshad Ali Ch. Advocate-on-Record for Respondents Nos.6-13 (in Civil Appeal No.1378 of 2001).

Respondents Nos.14, 15, 17, 18 and 19: Ex parte (in Civil Appeal No.1378 of 2001).

Nemo for Respondents 1-5 (in Civil Petition No.537/L of 2001).

Muhammad Akiam Khawaja, Advocate Supreme Court with Faiz-ur-Rehman, Advocate-on-Record for Respondents Nos.6-17 (in Civil Petition No.537/L of 2001).

Abdul Karim Khan Kundi, Advocate Supreme Court with Ch. Muhammad Akram, Advocate-on-Record for Respondents Nos.7, 1206) and 19(i-ii) (in Civil Petition No.250/L of 2002).

Kh. Muhammad Akram, Advocate Supreme Court with Faiz-ur-Rehman, Advocate-on-Record for Respondents Nos.8, 10, 11, 15(i-iii), 16, 22 and 23 (in Civil Petition No.250/L of 2002).

Ch. Khurshid Ahmed, Advocate Supreme Court for Respondents Nos.4-6 (in Civil Petition No.250/L of 2002).

Nemo for Respondents Nos.1-3, 13, 14 and 17 (in Civil Petition No.250/L of 2002).

Abdul Karim Khan Kundi, Advocate Supreme Court with Ch. Muhammad Akram, Advocate-on-Record for Respondents Nos.2-5 (in Civil Petition No.2842/L of 2002).

Kh. Muhammad Akram, Advocate Supreme Court with Faiz-ur-Rehman, Advocate-on-Record for Respondents Nos., 7-11, 14, 15 and 17 (in Civil Petition No.2842/L of 2002).

Nemo for Respondents Nos.6, 12, 13 and 16 (in Civil Petition No.2842/L of 2002).

Date of hearing: 7th February, 2007.

2007 S C M R 1036

[Supreme Court of Pakistani]

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

KHYBER KHAN and others----Appellants

Versus

Haji Malik AMANULLAH KHAN----Respondent

Civil Appeal No.1622 of 2003, decided on 26th February, 2007.

(On appeal from the judgment of the Peshawar High Court, Bench Dera Ismail Khan, dated 30-9-2002 passed in Civil Revision No.126 of 2002).

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

----S. 13---Right of pre-emption, exercise of---Talb-i-Muwathibat---Non-­mentioning of time and place of Talb-i-Muwathibat in plaint---Effect---Pre-emptor though had mentioned in plaint the date of making Talb-i-Muwathibat but he failed to specify in the plaint the time and place where Talb-i-Muwathibat was made---Omission to mention anyone of the three particulars in the plaint would result in dismissal of a pre-emption suit---Resolution of such question did not require any factual determination as the same was determinable from the bare reading of plaint---Plaint of pre-emptor having failed to meet the requirement set by Supreme Court, judgment and decree passed by Trial Court and upheld by High Court was set aside and suit filed by pre-emptor was dismissed---Appeal was allowed.

Mian Pir Muhammad v. Faqir Muhammad Civil Appeal No.1951 of 2000 fol.

Gulzarin Kiani, Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Appellants.

Tariq Mehmood, Advocate Supreme Court with Syed Asghar Ali Sabzwari, Advocate Supreme Court for Respondent.

Date of hearing: 26th February, 2007.

2007 S C M R 1039

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Nasir-ul-Mulk and Syed Jamshed Ali, JJ

C.P.L.A. No.535 of 2006

CHAIRMAN, CENTRAL BOARD OF REVENUE and others----Petitioners

Versus

Messrs HAQ COTTON MILLS (PVT.) LTD. BUREWALA----Respondent

(On appeal from judgment of Lahore High. Court, Multan Bench, Multan, dated 8-5-2006 passed in writ petition No.6711 of 2004).

C.P.L.A. No.536 of 2006

CHAIRMAN, CENTRAL BOARD OF REVENUE and others----Petitioners

Versus

Messrs AL-FAZAL COTTON INDUSTRIES, BUREWALA----Respondent

C.P.L.A. Nos.535 and 536 of 2006, decided on 12th February, 2007.

(On appeal from judgment of Lahore High Court, Multan Bench, Multan, dated 8-5-2006 passed in writ petition No.6712 of 2004).

Sales Tax Act (VII of l990)---

---Ss. 38, 38-A, 40 & 40-A----Constitution of Pakistan (1973), Art.185(3)---Search of premises---Non-obtaining of search warrants---Effect---Authorities conducted raid on the premises of assessee without search warrants and seized various documents and records---High Court in exercise of constitutional jurisdiction set aside raid proceedings---Plea raised by authorities was that there was no occasion for issuance of any notice to assessee, who would have otherwise removed the goods and required record from the premises---Validity---In absence of any strong belief to such effect, S.40-A of Sales Tax Act, 1990, did not confer unlimited and unbridled powers on authorized officer to conduct search or impound any kind of documents, in absence of any reasonable cause and without obtaining any search warrant from Magistrate---Authorities being fully aware and conscious of the settled law, were not in a position to distinguish and differentiate the dictum laid down by Supreme Court in earlier case, which fully covered the controversy and supported the view taken by High Court---Supreme Court declined to interfere with the judgment passed by High Court---Leave to appeal was refused.

Federation of Pakistan v. Master Enterprises (Pvt.) Ltd. 2003 PTD 1034; N.P What Proof Textile Mills (Pvt.) Ltd. v. Federation of Pakistan 2004 PTD 2952 and Collector of Customs v. Universal Gateway Trading Corporation 2005 SCMR 37 ref.

Collector of Sales Tax and Central Excise v. Mega Tech 2005 SCMR 1166 fol.

Chaudhry Saghir Ahmed, Advocate Supreme Court and, Syed Zafar Abbas Naqvi, for Advocate on Record Petitioners.

Nemo for Respondents.

Date of hearing: 12th February, 2007.

2007 S C M R 1044

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Mian Shakirullah Jan and Saiyed Saeed Ashhad, JJ

Sardar MUHAMMAD AMIR KHAN----Petitioner

Versus

NADEEM AKHTAR and others----Respondents

Civil Petition No.1115 of 2006, decided on 8th February, 2007.

(On appeal from the judgment, dated 14-11-2006 passed by Lahore High Court, Rawalpindi Bench in I.C.A. No.100 of 2006).

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

----S. 152---Constitution of Pakistan (1973), Art.185(3)---Principle of throw away votes---Applicability---Notoriety of disqualification---Onus to prove---Returned candidate was declared to be disqualified by Election Tribunal on the ground that he concealed his assets and petitioner was declared as successful candidate---Order passed by Election Tribunal was assailed before High Court in exercise of Constitutional jurisdiction---Single Bench of High Court dismissed the petition but Intra-Court Appeal, was allowed and directed the authorities to hold fresh election---Validity---Election Tribunal while disposing of the matter declared that returned candidate had concealed his assets---Such fact was not mentioned in nomination papers---Petitioner was bound to establish on record through positive evidence that disqualification was notorious---In absence of such evidence, votes secured by successful candidate could not be thrown away and candidates securing next highest votes could not be declared elected---Petitioner though had succeeded to bring on record that returned candidate concealed his assets, yet no evidence was brought on record about notoriety of disqualification---Division Bench of High Court exercised its jurisdiction according to law leaving no scope for Supreme Court to interfere---Leave to appeal was refused.

Ellahi Bakhsh v. District and Sessions Judge, Rajanpur PLD 2003 SC 268; Lal Muhammad v. Muhammad Usman and others 1975 SCMR 409; Syed Saeed Hassan v. Pyar Ali PLD 1976 SC 6; Halsbury's Laws of England, Vol. 14; Junaid Ahmad Soomro v. Haji Mehboob Ali Bhayo and others PLD 1986 SC 689; Sheikh Amjad Aziz v. Haroon Akhtar Khan 2004 SCMR 1484 and Shaukat Ali v. District Returning Officer and another PLD 2006 SC 78 rel.

Abdul Karim Khan Kundi, Advocate Supreme Court for Petitioner.

Sh. Zamir Hussain, Advocate Supreme Court for Respondents and Ashraf Aatif Respondent No.5 (in person).

2007 S C M R 1047

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi, Raja Fayyaz Ahmad and Ch. Ijaz Ahmed, JJ

BASHIR AHMED through L.Rs. and another----Appellants

Versus

MUHAMMAD ALI through L.Rs. and another----Respondents

Civil Appeal No.505 of 2002 in C.P. No.1977 of 2000, decided on 12th February, 2007.

(On appeal from the judgment/order, dated 27-11-2000 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur in Civil Revision No.111-D of 1981).

(a) Administration of justice---

----Each and every case is to be decided on its own peculiar circumstances.

Muhammad Saleem's case 1994 SCMR 2213 rel.

(b) Specific Relief Act (1 of 1877)---

----S. 12---Specific performance of agreement to sell---Principles---Grant of specific relief is always discretionary in character and court is not always bound to decree the suit of specific performance in cases where agreement is proved.

(c) Discretion---

----Court has to exercise discretion judicially and not arbitrarily.

Arif Shah's case PLD 1991 SC 905; Mussarat Shaukat Ali's case PLD 1994 SCMR 2189; Ameena Bibi's case PLD 2003 SC 430 and Jethalal Nanshah Modi v. Bachu and another AIR 1945 Bom. 481 rel.

(d) Specific Relief Act (1 of 1877)---

----S. 12-Colonization of Government Lands (Punjab) Act (IV of 1912), Ss.10/19---Specific performance of agreement to sell---Grant of alternate relief---Concurrent findings of fact by the courts below---Plaintiffs alleged that before grant of proprietary rights to defendant, he entered into agreement to sell the suit-land to them but after grant of the same, he sold suit-land to another person---Suit filed by plaintiffs was decreed only to the extent of alternate relief---Judgment and decree passed by Trial Court were maintained by Lower Appellate Court as well by High Court in exercise of revisional jurisdiction---Validity---All the courts below refused to exercise discretion in favour of plaintiffs with cogent reasons---Supreme Court declined to go beyond concurrent finding of fact recorded by the courts below, unless it could have been shown that the finding on the face of it was against the evidence or so patently improbable, or perverse that to accept same could amount to perpetuating a grave miscarriage of justice or if there had been any misapplication of evidence, or finally if the finding could be demonstrated to be physically impossible---Such being the practice and rule of Supreme Court in civil appeals, burden lay rather heavily on plaintiffs to show that concurrent findings recorded by High Court were not sustainable on the record and should be interfered with by Supreme Court---Supreme Court declined to exercise discretion in favour of plaintiffs---Appeal was dismissed.

Mst. Khair-un-Nisa's case PLD 1972 SC 25; Industrial Development Bank of Pakistan v. Saadi Asmatullah and others 1999 SCMR 2874; Shukri and others v. Ch. Muhammad Shafi Zafar and others PLD 1975 Lah. 619; Hikmat Khan v. Shamsur Rehman 1993 SCMR 428 and Mussarat Shaukat Ali v. Safia Khatoon 1994 SCMR 2198 ref. Wali's case 1995 SCMR 284; Abdul Latif's case 1990 SCMR 909; Ahmad Sher's case 1990 SCMR 445; Rana Muhammad Arshad's case 1998 SCMR 1462 and Haji Saifullah Khan's case PLD 1989 SC 166 rel.

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

----Art. 185(3)---Petition for leave to appeal---Findings of fact---Principles---Supreme Court does not meddle with findings of fact reached by the courts below while exercising power under Art.185(3) of the Constitution, when it is satisfied that findings of the Courts below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning appreciation of evidence---Such would be the position notwithstanding that different view might also be possible.

?Nawabzada Raunak Ali's case PLD 1973 SC 236 rel.

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

---Art. 185(3)---Petition for leave to appeal---Scope---Jurisdiction of Supreme Court under Art.185(3) of the Constitution is discretionary in character.

(g) Constitution of Pakistan (1973)---

----Art. 185(3)---Petition for leave to appeal---Concurrent findings of fact by the Courts below---Jurisdiction of Supreme Court under Art.185(3) of the Constitution cannot be exercised where concurrent findings of fact have been recorded by the courts below.

Khuda Bakhsh v. Muhammad Sharif and another 1974 SCMR 279 rel.

Muhammad Jaffar Hashimi, Advocate Supreme Court for Appellants.

Mian Allah Nawaz, Advocate Supreme Court for Respondents.

Date of hearing: 12th February, 2007.

2007 S C M R 1054

[Supreme Court of Pakistan]

Present: Javed Iqbal and Abdul Hameed Dogar, JJ

CHAIRMAN, WAPDA and others----Appellants

Versus

SARFRAZ KHAN and another----Respondents

Civil Appeals Nos.1335 to 1338 of 2003, decided on 15th January, 2007.

(On appeal from the order, dated 26-11-2002 of the Peshawar High Court, Peshawar passed in R.F.As. Nos.53, 54, 55, 56 of 1997)

Land Acquisition Act (I of 1894)---

----S. 23---Acquisition of land---Compensation---Determination---Ousat Yak Sala (one year average)---Landowners 'being dissatisfied with the award, approached the court---Referee Court keeping in view the commercial and potential value of the land enhanced the compensation---High Court, in exercise of appellate jurisdiction further enhanced the compensation---Validity---Similar land in vicinity was acquired by awarding more compensation, which award was rightly relied upon by High Court while enhancing the compensation---Landowners had produced worthy of credence documentary evidence such as Jamabandi, Ousat Yak Sala (one year's average) and Aks Shajra Kishtwar---Documentary evidence could not be rebutted by the authorities by producing any worthy of credence evidence---Question relating to potentials of land, its market and commercial value being questions of facts had rightly been determined by Judge in Chambers of High Court and were well based and did not warrant interference---Appeal was dismissed.

Province of Punjab v. Jamil Ahmad Malik 2000 SCMR 870; Pakistan Burma Shell Ltd. v. Province of N.-W.F.P. and 3 others 1993 SCMR 1700; Haji Muhammad Yaqoob and another v. Collector, Land Acquisition/Additional Deputy Commissioner, Peshawar 1997 SCMR 1670; Province of Punjab through Collector, Bahawalpur and others v. Col. Abdul Majeed and others 1997 SCMR 1692; Abdur Rauf Khan v. Land Acquisition Collector 1991 SCMR 2164; Gunj Khatoon v. Province of Sindh 1987 SCMR 2084; Fazalur Rahman v. Collector PLD 1988 SC 32 and Murad Khan through his widow and 13 others v. Land Acquisition Collector, Peshawar and another 1999 SCMR 1647 rel.

Abdul Qadir Khattak, Advocate Supreme Court for Appellants (in all cases).

Nemo for Respondents Nos.1 and 2.

Date of hearing: 15th January, 2007.

2007 S C M R 1062

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Ch. Ijaz Ahmed, JJ

GHULAM MURTAZA----Appellant

Versus

ABDUL SALAM SHAH and others----Respondents

Civil Appeal No.798 of 2003, decided on 13th February, 2007.

(On appeal from the judgment/order, dated 21-2-2001 passed by the Lahore High Court, Lahore in Civil Revision No.409 of 2001).

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

----Arts. 72, 117 & 120---Constitution of Pakistan (1973), Art. 185 (3)---Leave to appeal was granted by Supreme Court to consider; whether onus to prove execution of power of attorney, in view of plea raised by respondents that though a document was written as power of attorney but the same related to only obtaining land on behalf of deceased allottee from Government and not to sell the land, continued to be on plaintiff to prove its execution as the same had shifted to respondent who had taken a plea contrary to the contents of the document.

(b) Interpretation of document---

----Document must be read as a whole.

Mian Nawaz Sharif's case PLD 1993 SC 473; Hakim Ali's case PLD 1992 SC 595 and Reference by the President PLD 1957 SC 219 rel.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts.72, 117 & 120---Constitution of Pakistan (1973), Art.185---Contents of document---Onus to prove---Concurrent findings of fact by the courts below---Plaintiff alleged that attorney appointed by predecessor-in-interest of defendants had lawfully entered into agreement to sell the suit-land to plaintiff---Defendants denied such stance and contended that no power to sell the land was given to attorney in general power of attorney---Suit was dismissed by Trial Court and Lower Appellate Court as well as by High Court in exercise of appellate and revisional jurisdiction respectively, maintaining the judgment and decree passed by Trial Court---Validity---Reading general power of attorney as a whole, it was clear that attorney was not authorized by predecessor-in-interest of defendants to sell land in question---All the courts below had given finding of fact against plaintiff that he had failed to prove contents of general power of attorney through reliable evidence on record in terms of law laid down by Supreme Court---Plaintiff being the beneficiary was obliged to prove contents of general power of attorney to the extent that attorney was duly authorized by predecessor-in-interest of defendants to sell land in question---Judgment passed by High Court in exercise of revisional jurisdiction was in consonance with law laid down by Supreme Court---Concurrent finding of three courts on a question of fact---Supreme Court declined to interfere in such concurrent conclusions in exercise of powers under Art..185 of the Constitution---Plaintiff failed to point out any infirmity or illegality in the impugned judgment---Appeal was dismissed.

Fida Muhammad v. Muhammad Khan PLD 1985 SC 341; Maqsood Ahmad v. Salman Ali PLD 2003 SC 31'; Imam Din v. Bashir Ahmed PLD 2005 SC 418; Guldar Khan's case 1993 SCMR 2099; Nazir Ahmad's case 1989 SCMR 450; Riaz's case 1989 SCMR 1491 and Haji Muhammad Din's case PLD 1994 SC 291 rel.

Malik Saeed Hassan Senior Advocate Supreme Court for Appellant.

Arif Chaudhry, Advocate Supreme Court for Respondents Nos.2-8.

Date of hearing: 13th February, 2007.

2007 S C M R 1069

[Supreme Court of Pakistan]

Present: Javed Iqbal and Ch. Ijaz Ahmed, JJ

MUHAMMAD NAWAZ KHAN and another----Appellants

Versus

GOVERNMENT OF N.-W.F.P. through Collector, Mardan and others----Respondents

Civil Appeal No.404 of 2004, decided on 17th December, 2007.

(On appeal from the judgment, dated 30-5-2003 passed by the Peshawar High Court, Peshawar High Court, Peshawar passed in R.F.A. No.97 of 1997).

Land Acquisition Act (I of 1894)---

----S. 23---Acquisition of land---Compensation---Determination---Ousat Yak Sala (one year average)---Landowners being dissatisfied with the award, approached Referee Court and the court keeping in view the commercial and potential value of land, enhanced the compensation---High Court, in exercise of appellate jurisdiction further enhanced the compensation---Plea raised by landowners was that potential and commercial value of land was not determined in accordance with evidence on record---Validity---Entire documentary and oral evidence such as Jamabandi, Aks Shajra Kishtwar, site plan of. acquired land, Ousat Yak Sala (one year's average) and statement of witness had been examined---High Court rightly enhanced the price on the basis of one year's average for the relevant period---High Court in its judgment, kept in view the commercial and potential value of the acquired land, which being well-based did not warrant interference---Compensation enhanced by-High Court was in consonance with the law laid down by Supreme Court as well as with the provision as enumerated in S.23 of Land Acquisition Act, 1894.

Province of Punjab v. Jamil Ahmad Malik 2000 SCMR 870 rel.

Maazullah Khan Barkundi, Advocate Supreme Court for Appellants.

Sh. Mahmood Ahmad, Advocate Supreme Court for Respondents.

Date of hearing: 7th December, 2006.

2007 SCMR 1076

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Ch. Ijaz Ahmed, JJ

RAFAQAT ALI and others----Petitioners

Versus

Mst. JAMSHED BIBI and others----Respondents

Civil Petition No.574 of 2006, decided on 14th February, 2007.

(On appeal from the judgment/order, dated 14-3-2006 passed by Lahore High Court, Multan Bench, Multan in Civil Revision No.848-D of 2005).

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts.17 & 79---Constitution of Pakistan (1973), Art.185(3)---Agreement to sell---Proof---Discretionary relief, grant of---Concurrent findings of fact by the courts below---Plaintiffs alleged that prior to grant of proprietary rights defendant executed agreement to sell in their favour but after grant of such right he declined to execute sale-deed---All the three courts below concurrently dismissed the suit filed by plaintiffs---Validity---Plaintiffs produced only one witness to prove execution of agreement---Plaintiffs, according to Arts.17 and 79 of Qanun-e-Shahadat, 1984, had to produce two attesting witnesses of agreement in question---All the courts below were justified to non-suit the plaintiffs as only one witness was produced---Specific performance being an equitable relief, courts below had rightly declined to exercise discretion in favour of plaintiffs with cogent reasons---Judgments of the courts below were in consonance with the law laid down by Supreme Court---Supreme Court declined to interfere with the concurrent findings of the courts below unless there was defect of misreading or non-reading of record---Leave to appeal was refused.

Suleman Ali's case 2000 YLR 1983; Maqsood Ahmad's case PLD 2003 SC 31; Qazi Muhammad Saqib Khan's case 2003 MLD 131 and Irshad Hussain's case PLD 1994 SC 326 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---High Court has very limited jurisdiction to meddle with concurrent findings of the Courts below, while exercising power under S.115, C.P.C.

See N.S. Venkatagiri Ayyanger's case PLD 1949 PC 26; Muhammad Akhtar's case 2001 SCMR 1700 and Abdul Rahim's case 2000 SCMR 346 rel.

Raja Muhammad Ibrahim Satti, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 14th February, 2007.

2007 SCMR 1079

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

QALANDAR and 4 others---Appellants

Versus

MUHAMMAD RAFI-UD-DIN----Respondent

Civil Appeal No.1777 of 2001, decided on 3rd October, 2006.

(On appeal from the judgment, dated 12-11-1999 of the Lahore High Court, Lahore in Civil Revision No.1087 of 1987).

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

----S. 5---Constitution of Pakistan (1973), Art 185(3)---Leave to appeal was granted by Supreme Court to consider; whether owner of agricultural land in estate which though was not assessed to land revenue or in respect of which no land revenue was paid, could still be treated as owner of the estate for the purposes of pre-emption matter.

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

----S. 5---Civil Procedure Code (V of 1908), O.VIII, R.4---Superior right of pre-emption---Owner in estate---Proof---Improvement of status---Purchase of land for residential purposes---No right of pre-emption at the time of sale in question---Non-payment of land revenue---Evasive denial---Vendees claimed to have purchased residential land after sale in question and improved their status---All the three Courts below concurrently decreed the suit in favour of pre-emptor---Validity---Vendees in their written statement did not take the plea that they were also owners in the estate, so they had equal right of pre-emption against pre-emptor---Simple denial was not sufficient and evidence led by vendees in order to prove improvement in their status by purchase of land, had to be ignored under law---Pre-emptor had proved his superior right of pre-emption against vendees---Entries in record of rights proved beyond doubt that pre-emptor was owner in the estate before the sale of suit-land---Vendees on the relevant date of purchase of suit-land had no land in the estate, whereas pre-emptor was owner in the estate before sale in question---Although land purchased by vendees was part of agricultural land and was being cultivated by its owners, yet after purchase by vendees, they could not prove payment of land revenue---Vendees could not claim themselves to be the owners of estate for the reason that it was purchased by them for residential purpose and they did not pay land revenue, hence could not be treated to be owners in the estate so as to defeat suit for pre-emption---Judgment passed by High Court was based on valid and sound reasons and was in consonance with the law laid down by Supreme Court---Neither there was misreading nor non-reading of material evidence brought on record or misconstruction of facts or law---Concurrent findings of fact recorded by all the Courts did not warrant any interference by Supreme Court---Appeal was dismissed.

Haji Ahmad Yar v. Allah Ditta and another PLD 1989 SC 373 and Faiz Bakhsh and others v. Malik Allah Bakhsh 1994 SCMR 1168 fol.

Sh. Altaf Elahi, Advocate Supreme Court for Appellants.

Raja Ibrahim Satti, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent.

Date of hearing: 3rd October, 2006.

2007 SCMR 1083

[Supreme Court of Pakistan]

Present. Muhammad Nawaz Abbasi and Ch. Ijaz Ahmed, JJ

RAFAQAT ALI----Petitioner

Versus

MUHAMMAD FARID and others----Respondents

Civil Petition No.573 of 2006, decided on 14th February, 2007.

(On appeal from the judgment/order, dated 14-3-2006 passed by Lahore High Court, Multan Bench, Multan in Civil Revision No.849-D of 2005).

Specific Relief Act (I of 1877)---

---S. 12---Qanun-e-Shahadat (10 of 1984), Arts.17 & 79---Constitution of Pakistan (1973), Art.185(3)---Agreement to sell---Proof---Discretionary relief, grant of---Concurrent findings of fact by the courts below---Plaintiff alleged that defendant entered into agreement to sell the suit-land to him and despite receipt of full consideration amount, refused to execute sale-deed---All three courts below concurrently dismissed the suit filed by plaintiff---Validity---Plaintiff failed to produce two attesting witnesses to prove contents of agreement, therefore, courts below were justified to non-suit the plaintiff in view of Arts.17 and 79 of Qanun-e-Shahadat, 1984---Supreme Court declined to interfere in concurrent findings of courts below while exercising power under Art.185(3) of the Constitution---Specific performance being an equitable relief, courts below rightly declined to exercise discretion in favour of plaintiffs with cogent reasons---Judgments of courts below were in consonance with the law laid down by Supreme Court---Plaintiff failed to point out any misreading or non-reading of evidence or any infirmity or illegality in the judgment passed by High Court---Leave to appeal was refused.

Anwar Zaman's case 2000 SCMR 431; Qazi Muhammad Saqib Khan's case 2003 MLD 131; Suleman Ali's case 2000 YLR 1938; Maqsood Akhtar's case PLD 2003 SC 131; Wali's case 1995 SCMR 284 and Irshad Hussain's case PLD 1994 SC 326 rel.

Raja Muhammad Ibrahim Satti, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 14th February, 2007.

2007 SCMR 1086

[Supreme Court of Pakistan]

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

MUHAMMAD AKRAM----Petitioner

Versus

Mst. ZAINAB BIBI----Respondent

Civil Petitions Nos.1753 and 1754 of 2004, decided on 1st December, 2005.

(On appeal from the judgment, dated 11-6-2004 of the Lahore High Court, Rawalpindi Bench Rawalpindi, passed in Civil Revisions Nos.67-D and 68-D of 1999).

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

----S. 13---Right of pre-emption, exercise of---Requisite Talbs---Object and scope---Making of Talbs is not a mere procedural formality prescribing a mode for enforcement of right of pre-emption but on the same depends life and continued existence of such right---Law has not granted any power to any court to condone any deficiency or deviation in the matter of making such demand or to show any laxity in the matter---Consequences of failure to perform Talbs in prescribed manner stand determined by the law itself i.e. extinction of right of pre-emption.

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

----S. 13---Right of pre-emption, exercise of---Talb-i-Muwathibat---Date of knowledge of sale---Significance---Powers of courts---Pre-emptor did not mention date of knowledge of sale in question either in her plaint or during evidence before Trial Court---Suit filed by pre-emptor was dismissed by Trial Court on the ground that she had failed to prove requisite Talbs---Lower Appellate Court allowed appeal and decreed the suit---Judgment and decree passed by Lower Appellate Court was upheld by High Court in exercise of revisional jurisdiction---Validity---In order to succeed, pre-emptor was to establish that she' had made first demand, immediately on coming to know of the sale and that she had then made second demand within two weeks thereof---Date of knowledge is of vital significance in pre-emption suits because in absence thereof it would not be possible for the Courts seized of the matter to determine whether first demand had or had not been made immediately upon coming to know of the sale in question and also whether second demand had or had not been made within two weeks of the same---Date of knowledge of sale was the pivot on which fate of a pre-emption case rested---No power vested in any court either to enlarge time prescribed by the provisions of S.13(1) and (3) of Punjab Pre-emption Act, 1991 or to condone the delay occurring in doing the needful---Conclusions drawn by Trial Court about such legal and factual issues were well founded and were not open to any exception and interference by Lower Appellate Court was unwarranted---Supreme Court converted petition for leave to appeal into appeal, set aside the judgment and decree passed by High Court and restored the judgment passed by Trial Court---Appeal was allowed.

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

----S. 13---Right of pre-emption, exercise of---Illiterate and rural background of pre-emptors--Scope---No special provisions exist in Punjab Pre-emption Act, 1991, envisaging grant of any concessions or allowances to the ones who are illiterate or to the ones who come from rural areas---Even ignorance has never been considered a valid defence for any non, mis or mal-feasance---When law requires a thing to be done in a particular manner then it would be a nullity in the eyes of law, if not performed in that very prescribed manner.

Malik Qamar Afzal, Advocate Supreme Court with Ch. Muhammad Akram, Advocate-on-Record for Petitioner.

Syed Rafaqat Hussain Shah, Advocate Supreme Court for Respondent.

Date of hearing: 1st December, 2005.

2007 SCMR 1091

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Ch. Ijaz Ahmed, JJ

MUHAMMAD DIN and others----Appellants

Versus

JAMAL DIN and others----Respondents

Civil Appeal No.1196 of 2005, decided on 28th March, 2007.

(On appeal from the judgment/order, dated 9-9-2003 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in Writ Petition No.1236 of 2003).

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

----S. 24---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider the contentions of petitioner that probable value of land in question had been determined in vacuum and relevant five mutations went unnoticed by High Court, which resulted in serious miscarriage of justice; whether Constitutional jurisdiction as conferred upon High Court under Art. 199 of the Constitution could not have been invoked; and whether proper opportunity of hearing was not afforded and probable value had been fixed without proper notice and inquiry, which should have been done before determining the probable value.

Noor Muhammad v. Sarwar Khan PLD 1985 SC 131; Muhammad Zahoor v. Lal Muhammad 1988 SCMR 322 and Bishambhar v. IIIrd Additional District Judge, Azamgarh AIR 1992 All. 178 ref.

(b) Administration of justice---

----Courts have to decide cases after judicial application of mind with reasons.

Gouranga Mohan Sikdar v. The Controller of Import and Export and others PLD 1970 SC 158 and Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173 rel.

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

----S. 24-A---Judicial application of mind---Public functionaries are duty bound to decide applications of citizens after judicial application of mind with reasons.

Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 rel.

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

----S. 24---Deposit of Zar-e-Soem---Probable value of suit-land---Determination---Required material---Pre-emptors alleged that value of suit-land mentioned in mutation was inflated and market value in terms of annual sale average was much less---Trial Court having relied upon annual sale average. directed pre-emptors to deposit Zar-e-Soem---Order passed by Trial Court was reversed by Lower Appellate Court but High Court, in exercise of Constitutional jurisdiction, restored the value of land as determined by Trial Court---Validity---Courts below committed material irregularities while deciding lis between parties under S.24(1) of Punjab Pre-emption Act, 1991---Courts entertaining suits under Punjab Pre-emption Act, 1991, ought to examine the plaint and any material accompanying it, while passing orders for deposit of 1/3rd amount payable and directed the parties to deposit such amount, in order to avoid complication later on---Trial Court accepted the probable value of land in question in terms of annual sale average and ordered for deposit of Zar­e-Soem, which was deposited by pre-emptors within the prescribed time period---Supreme Court in the interest of justice and fair-play, instead of remanding the case to determine the probable value of suit property in terms of S.24 of Punjab Pre-emption Act, 1991, directed pre-emptors to deposit a sum of Rs.5,00,000 within one month, excluding the amount already deposited by them, as such deposit was subject to determination of sale price by Trial Court---Appeal was allowed:

Haji Ghulam Nabi and Mst. Sahib Jamala and others 1994 SCMR 845; Habibullah Khan's case 1995 SCMR 135; Awal Noor's case 1992 SCMR 746; Janat Gul Khan's case PLD 1993 SC 204; Haji Gul Nabi's case 1994 SCMR 845; Mian Asif Islam's case 1999 SCMR 1350 and Haji Gul Nabi's case PLJ 1994 SC 201 rel.

Gul Zarin Kiani, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants.

Syed Najam-ul-Hassan Kazmi, Advocate Supreme Court for Respondents.

Date of hearing; 28th March, 2007.

2007 SCMR 1095

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and Muhammad Nawaz Abbasi, J

FEDERATION OF PAKISTAN and others----Petitioners

Versus

ATTOCK PETROLEUM LTD. ISLAMABAD----Respondent

Civil Petition No.867 of 2006, decided on 19th October, 2006.

(On appeal from the judgment, dated 19-7-2006 passed by Lahore High Court, Rawalpindi Bench in Writ Petition No.3559 of 2004).

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

----S. 47-A---Customs Act (IV of 1969), S.195-C---Central Excise Act (I of 1944), S.36-D---Alternate Dispute Resolution, scheme of---Object and scope---Such scheme would facilitate settlement of tax dispute without intervention of court through mediation and negotiation---Remedy of Alternate Dispute Resolution would not be available to a person, who in addition to tax liability was facing criminal charge/offence---Reference in criminal case by Central Board of Revenue to Alternate Dispute Resolution Committee would be void ab initio and without jurisdiction---Principles.

The scheme of Alternate Dispute Resolution (ADR) facilitates settlement of tax dispute through negotiation and system of ADR having legal recognition under the Customs Act, 1969, Central Excise Act, 1944 and Sales Tax Act, 1990 is adopted to settle the disputes without the intervention of the court. The centuries old traditional method of settlement of private dispute through negotiation is not only familiar in the modern world, but this voluntary scheme for settlement of tax dispute through mediation and negotiation is an effective method to be followed.

The similar scheme of ADR under section 195-C of the Customs Act, 1969 and section 36-D .of the Central Excise Act, 1944 has been provided and C.B.R. in exercise of its powers under the above provisions of law may on an application of an aggrieved person appoint a Committee for the settlement of tax dispute without the intervention of courts and this non-judicial forum of ADR has been introduced in the statutes for amicable and speedy settlement of dispute to avoid the heavy expensive and lengthy process of court. There are various forms of ADR such as mediation, arbitration, conciliation and compromise with or without intervention of court and provisions of the ADR in the above statutes clearly demonstrate that scheme of ADR is not applicable to the case in which in addition to the tax liability an aggrieved person is also facing criminal charge. The careful perusal of these provisions unambiguously shows that ADR Committee has limited jurisdiction to the extent of tax dispute as civil liability and cannot enlarge its jurisdiction to the cases registered under the above statutes involving criminal liability even if the offence allegedly committed by a person is compoundable. For the trial of criminal cases registered under these statutes, an independent forum of Special Court of exclusive jurisdiction has been provided under section 185 of the Customs Act, 1969 read with Prevention of Smuggling Act, 1977, which enjoys the status of Court of Session established under Code of Criminal Procedure, 1898, and notwithstanding the mixed character of a transaction involving civil and criminal liability, remedy of ADR is not at all available in the criminal cases registered under the above statutes. The provisions in these statutes relating to the voluntary scheme of ADR having no overriding effect to other provisions contained-therein may be invariably invocable in each case and in view of the legal position explained hereinbefore it is quite clear that in a transaction in which in addition to the tax liability a person is found to have also committed an offence under the tax statutes, and transaction can be separated for the purpose of Alternate Dispute Resolution in respect of tax liability and consequently, the ADR Committee of C.B.R. is not competent to entertain such dispute of mixed character except in a case in which the offence is compoundable with prior approval and permission of the Federal Government.

The legal position emerging from the relevant provisions under the Customs Act, 1969 read with Central Excise Act, 1944 and Sales Tax Act, 1990 is that the scheme of ADR is not applicable to criminal cases registered under these statutes, and in such cases, the reference sent by the C.B.R. to the ADR Committee would be void ab initio and without jurisdiction.

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

----S. 195-C--- Alternate Dispute Resolution, scheme of---Object and scope---Such scheme would facilitate settlement of tax dispute without intervention of court through mediation and negotiation---Remedy of Alternate Dispute Resolution would not be available to a person, who in addition to tax liability was facing criminal charge/offence---Reference in criminal case by Central Board of Revenue to Alternate Dispute Resolution Committee would be void ab initio and without jurisdiction---Principles.

(c) Central Excise Act (I of 1944)---

----S. 36-D--- Alternate Dispute Resolution, scheme of---Object and scope---Such scheme would facilitate settlement of tax dispute without intervention of court through mediation and negotiation---Remedy of Alternate Dispute Resolution would not be available to a person, who in addition to tax liability was facing criminal charge/offence---Reference in criminal case by Central Board of Revenue to Alternate Dispute Resolution Committee would be void ab initio and without jurisdiction---Principles.

Raja Muhammad Bashir, Advocate Supreme Court, Mehr Khan Malik, Advocate-on-Record and Mumtaz Ahmad, Member Legal, C.B.R. for Petitioners.

Tariq Aziz, Advocate Supreme Court and Ejaz M. Khan, Advocate-on-Record for Respondent.

Date of hearing: 19th October, 2006.

2007 S C M R 1102

[Supreme Court of Pakistan]

Present: Javed Iqbal and Abdul Hameed Dogar, JJ

INTERNATIONAL MULTI LEASING CORPORATION and others----Petitioners

Versus

CAPITAL ASSETS LEASING CORPORATION LTD. and others----Respondents

Civil Petition No.3181 of 2003, decided on 11th January, 2007.

(On appeal from the judgment, dated 25-11-2003 of the Lahore High Court, Lahore passed in I.C.A No.14-L of 2003).

Companies Ordinance (XLVII of 1984)---

----S. 282-L & Part VIII-A (Ss.282-A to 282-M)---Companies Court Rules 1997, Rr.60 & 61---Armed Forces Civil General Transport Companies and Requisition of Civil Transport Ordinance (CXXII of 2002)---Constitution of Pakistan (1973), Art. 185 (3)---Merger of Non-Banking Finance Companies---Powers of High Court and Security and Exchange Commission of Pakistan---Statutory majority of shareholders---Effect---Scrap ratio---Determination---Caveat emptor, principle of---Scope---Leave to appeal was granted by Supreme. Court to consider; what was import and significance of provisions as enumerated in S.282-L of Companies Ordinance, 1984 and what effect it would have on the scheme of arrangement/merger of a Non-Banking Finance Company; whether such a scheme of arrangement/merger could have been sanctioned by High Court, pursuant to the provisions contained in S.282-L of Companies Ordinance, 1984, read with Part VIII-A and Part IX of the Ordinance No. CXXII of 2002 or by Security and Exchange Commission of Pakistan in view of the provisions as enumerate in said Ordinance; whether provisions as contemplated in S.282-L of Companies Ordinance, 1984, had been misconstrued and misinterpreted; whether question of limitation had been dilated upon and decided correctly by High Court and time for the purposes of limitation would commence from the date of merger order or when the merger order attained finality; whether "market value of shares" was the only criterion to determine "the scrap ratio" and other relevant factors such as "net assets value" and "profit earning capacity value" could be ignored; whether requisite statutory majority of share-holders of amalgamating companies had unfettered and unbridled powers and grievance of aggrieved party could not be redressed where the scheme of arrangement/merger was not fair and transparent; whether provisions as envisaged in Rr.60 and 61 of Companies Court Rules, 1997 had been adhered to strictly; whether the principle of caveat emptor could be pressed into service; whether conclusion of High Court qua increase in paid up capital to the required minimum of Rs.200 million was based on conjectural presumption; whether scheme of amalgamation duly approved by statutory majority and sanctioned by court had attained finality and being a statutory instrument was immune from challenge in any manner whatsoever; and whether order of merger could be termed as "consent order" having not been secured by two companies.

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioners.

Khawaja Ahmad Tariq Rahim, Advocate Supreme Court for Respondent No.1.

Ashtar Ausaf Ali, Advocate Supreme Court for Respondent No.2.

Date of hearing: 11th January, 2007.

2007 S C M R 1105

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, Falak Sher and Tassaduq Hussain Jillani, JJ

MUHAMMAD BASHIR and others----Appellants

Versus

ABBAS ALI SHAH----Respondent

Civil Appeal No.872 of 2005, decided on 23rd February, 2007.

(Against the judgment of the Lahore High Court dated 28-6-2005 passed in R.S.A. No.6 of 2003)

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

----S. 13(1) (a & b)---Talb-i-Muwathibat and Talb-i-Ishhad---Object and scope---Requirement of first demand i.e. Talb-i-Muwathibat being immediate is to ensure that potential pre-emptor genuinely and bona fide wishes to purchase land sought to be pre-empted---First demand does not envisage presence or knowledge of vendee---Second demand i.e. Talb-i-Ishhad is the only Talb, which postulates putting vendee on notice about pre-emptor's desire to purchase---Law mandates that Talb-i-Ishhad has to be sent through registered post acknowledgement due.

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

----S. 13(1)(b)---Talb-i-Ishhad---Sending notice in writing under registered cover acknowledgement due---Object---Requirement of "sending a notice in writing" is followed by a rider i.e. "under registered cover acknowledgement due", which signifies that intention of law is not merely a formal notice on the part of pre-emptor conveying his intention to pre-empt but a notice served on addressee to apprise him about his intention to pre-empt---If mere "sending of notice" was enough, it would make the expression "acknowledgement due" redundant---Service of addressee, as prescribed in law; therefore, is imperative---If acknowledgement card carries an endorsement of "refusal" or "not accepted", a presumption of service would arise unless rebutted.

Thammiah, b. v. Election Officer (1980) 1q Kant L. 19 rel.

(c) Punjab Pre-emption Act (1X of 1991)---

----S. 13(1)(b)---General Clauses Act (X of 1897), S.27---Qanun-e-Shahadat (10 of 1984), Art.129 (e)---Talb-i-Ishhad notice---Service to addressee---Presumption---Onus to prove, shifting of---In terms of Art.129 of Qanun-e-Shahadat, 1984, read with S.27 of General Clauses Act, 1897, a presumption of service does arise if a notice sent through registered cover acknowledgement due is received back with endorsement of "refused" by postal authorities---If addressee appears in court and makes a statement on oath disowning receipt of notice, presumption under the provision of Art.129 of Qanun-e-Shahadat, 1984, stands rebutted and onus is on the party which is relying on such endorsement to prove the same by producing postman who made the endorsement---Onus to prove service of notice continues to be on the party relying on such notice unless there is other evidence to indicate that denial of service by addressee i5 against the record.

Khair Muhammad v. Akhtar Hussain 1983 CLC 302; Bashir Ahmad v. Mumtaz Khan PLD 1965 Lah. 126; Nazir-ud-Din v. Muhammad Ali 1980 CLC 203; Pridino v. Khurshid Begum 1989 SCMR 880; Gulzar Begum v. Mst. Sairah Bibi 1972 SCMR 251; Anil Kumar v. Nanak Chandra Verma AIR 1990 SC 1215; Tekchand Devidas v. Gulab Chand Chandan Mal AIR 1957 Madhya Bharat 151; Fateh Muhammad v. Gul Sher 2000 CLC 409; Muhammad Rafiq v. Ghulam Murtaza 1998 MLD 292; Qaiser Zamani v. Rasheeda Begum 1985 CLC 596 and Amroz Khan v. Arbab Muhammad Ghalib PLD 1980 Pesh. 163 ref.

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

----S. 12(1)(b)---Qanun-e-Shahadat (10 of 1984), Art.129(e)---Notice of Talb-i-Ishhad---Service to addressee---Proof---Endorsement of refusal on acknowledgement due receipt--Failure to produce postman as witness---Suit. for possession through pre-emption was decreed by Trial Court in favour of pre-emptor---Lower Appellate Court allowed the appeal and dismissed the suit on the ground that service of notice of Talb-i-Ishhad to vendees was not proved by pre-emptor---High Court in exercise of revisional jurisdiction set aside the judgment and decree passed by Lower Appellate Court and restored that of Trial Court---Validity---There was no personal notice and mere endorsement of "refusal" did not constitute service, as vendees had denied service not only in written statement but also on oath while appearing as witness in Trial Court---Presumption, if any, in terms of Art.129 of Qanun-e-Shahadat, 1984, stood rebutted and it was for the pre-emptor to prove service by producing postman who allegedly made the endorsement which had not been done---Pre-emptor failed to prove service of Talb-i-Ishhad by leading evidence tenable in law---In reversing the judgment of Lower Appellate Court, High Court did not advert to such factual aspect and law declared in such regard---Supreme Court set aside the judgment and decree passed by High Court and dismissed the suit filed by pre-emptor---Appeal was allowed.

Begum Humayun Zulfiqar Ismail v. Begum Hamida Saadat Ali 1968 SCMR 828; Gulzar Begum v. Mst. Sairah Bibi 1972 SCMR 251; Amir Din v. Muhammad Siddique 1982 SCMR 354; Water and Power Development Authority v. Saeed Badar PLD 1991 SC 660; Messrs Journalist Publication (Pvt.) Ltd. v. Mst. Mumtaz Begum alias Mustari Begum 2004 SCMR 1773; Haji Muhammad Ayub Khan Afridi v. Special Appellate Court, Peshawar 2006 SCMR 1275; Haji Lal Shah v. Abdul Khaliq 2004 SCMR 409; Hayat Muhammad v. Mazhar Hussain 2006 SCMR 1410; Sher Afzal v. Mohal Lal AIR 1926 Lah. 520; Atar Ali v. Abed Ali PLD 1954 Dacca 158; Sultan Ahmed alias Ladu Mia v. Syed Ahmad PLD 1967 Dacca 392; Muhammad Sharif v. Maqbul Ahmad 1974 SCMR 136 and Har Charan Singh v. Shiv Rani AIR 1981 SC 1284 ref.

Malik Muhammad Nawaz, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants.

Malik Muhammad Qayyum, Advocate Supreme Court for Respondent.

Date of hearing: 13th February, 2007.

2007 SCMR 1117

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Falak Sher, JJ

GHULAM ZOHRA and 8 others----Petitioners

Versus

NAZAR HUSSAIN through Legal Heirs----Respondents

Civil Petition No.3189-L of 2000, decided on 18th December, 2006.

(On appeal from the judgment, dated 19-10-2000 passed by the Lahore High Court, Lahore in Civil Revision No.867 of 1984).

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

----Ss. 6 & 20---Civil Procedure Code (V of 1908), O.XLI, R.20(b)---Suit for pre-emption---Plea of vendee that pre-emptor had no superior right---Dismissal of suit by Trial Court---Application before Appellate Court for production of copy of Register Haqdaran Zamin showing vendee to be owner in estate---Dismissal of application by Appellate Court and High Court on the ground that same was filed to fill in lacuna; and that such plea was not raised by vendee in written statement---Validity---Trial Court had not examined Patwari, from whom Revenue Record favouring vendee could have been demanded---Courts below should have received such copy as additional evidence in order to do complete justice and avoid passing of a decree in favour of pre-emptor having no superior right---Passing of impugned decree in favour of pre-emptor having no superior right was a sheer injustice besides being an illegality and a bigger irregularity as compared to admission of additional evidence for which substantial cause was available---Duty of pre-emptor was to prove superiority of his right and not the equality---Such plea of vendee was sufficient to meet the requirements of pleadings---Supreme Court accepted appeal, admitted such copy into additional evidence, declared pre-emptor to be having no superior right of pre-emption and dismissed his suit subject to payment of Rs.10,000 by vendee as cost of additional evidence, failing which decree in favour of pre-emptor would stand revived.

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

----O. XLI, R.27---Production of additional evidence in Appellate Court---Scope---Additional evidence would be sought about something which happened to have been omitted by a party during trial---Appellate Court could admit additional evidence, if same would promote ends of justice and would be required for doing complete justice between parties---Question of filing in lacunae would not be of prime importance---Principles.

S.M. Tayyab, Senior Advocate Supreme Court for Petitioners.

Kh. Muhammad Akram, Advocate Supreme Court for Respondents.

Date of hearing: 18th December, 2006.

2007 SCMR 1120

[Supreme Court of Pakistan]

Present: Javed Iqbal and Nasir-ul-Mulk, JJ

RAB NAWAZ and others----Appellants

Versus

MUHAMMAD ALI through Legal Representative----Respondents

Civil Appeal No.1214 of 2004, decided on 2nd April, 2007.

(On appeal from the judgment, of the Lahore High Court, Lahore, dated 24-5-2001 passed in Civil Revision No.1007 of 1988).

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

----S. 42---Transfer of Property Act (IV of 1882), S.43---Suit for declaration---Sale through registered deed of 169 Kanals of land by defendant believing same to have been. inherited from his mother---Defendant according to Revenue Record found to be owning 87 Kanals land as allotment of his mother was reduced from 479 Kanals to 218 Kanals---Defendant later on inherited 58 Kanals land from his issueless brother---Plaintiff sought attestation of mutation of sale in his favour regarding 87 Kanals of land and additional 58 Kanals of land inherited by him---Refusal of Revenue Authority to attest mutation of 58 Kanals of land on the ground that defendant had become its owner subsequent to sale-deed---Plaintiff's suit for declaration regarding 58 Kanals of land was decreed by Trial Court and Appellate Court, but dismissed by High Court as defendant had not misrepresented quantum of his ownership--Validity-Plaintiff's knowledge of defendant's actual holding had not been proved---Defendant was unaware of the true extent of his ownership and was suffering from a mistake of fact and his misrepresentation that he owned 169 Kanals was erroneous---Property sold by defendant and suit property inherited subsequently, was part and parcel of same property originally allotted to his mother---Upon reduction of allotment of defendant's mother, he became entitled to sell only 87 Kanals of land---Part of property sold by defendant unauthorizedly included share of his brother---Defendant had, thus, acquired interest in suit property within meaning of S.43 of Transfer of Property Act, 1882---Equity would favour plaintiff, who had paid price for 169 Kanals of land, while he was transferred 87 Kanals and transfer of suit-land of 58 Kanals would not be sufficient to make up deficiency---Supreme Court set aside judgment of High Court and restored that of Trial Court.

Krishnadhan Chandra v. Kanailal Ghosp and another AIR 1973 Cal. 422; Mohan Singh and others v. Pandit Sewa Ram and others AIR 1924 Oudh 209; Ganga Prasad v. Mt. Raghubansa AIR 1937 Oudh 127; Mst.. Fazal Bibi and others v. Settlement Commissioner and others PLD 1983 SC 163; Shamoon and others v. Ahmad and others 1986 SCMR 888 and Ziauddin Rafi v. Muhammad Khan and others PLD 1962 (W.P.) Lah. 321 ref.

Ramaswamy Pattamali and others v. Lakshmi and others AIR 1962 Kerala 313; Jagat Narain v. Laljee AIR 1965 All. 504 and Jan Muhammad v. Karm Chand PLD 1947 PC 62 rel.

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

----S. 43---Provision of S.43 of Transfer of Property Act, 1882, applicability of---Principle stated.

Section 43 of the Transfer of Property Act, 1882 comes into play when the representation made by the transferor is either fraudulent or erroneous. The erroneous representation may be innocent and would cover a situation where the transferee is not even aware of lack of his authority to transfer the immovable property. The two words "fraudulent" and "erroneously" have been used in the alternative and the latter is not to be confused with misrepresentation. Misrepresentation is to give a 'misleading account of facts, often intentionally, whereas "erroneously" means mistakenly. The use of the two words "fraudulently" and "erroneously" is to cover deliberate as well as mistaken incorrect presentation.

The transferee of property seeking benefit of section 43 is not bound to establish misrepresentation by transferor.

Ramaswamy Pattamali and others v. Lakshmi and others AIR 1962 Kerala 313 and Jagat Narain v. Laljee AIR 1965 All. 504 ref.

Gul Zarin Kiyani, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Appellants.

Tafazul Hussain Rizvi, Advocate Supreme Court for Respondents.

Date of hearing: 7th March, 2007.

2007 S C M R 1126

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Rana Bhagwandas, JJ

Hafiz MUHAMMAD SIDDIQUE ANWAR----Appellant

Versus

FAISALABAD DEVELOPMENT AUTHORITY and others----Respondents

Civil Appeal No.24 of 1997, decided on 3rd June, 2003.

(On appeal from the judgment/order, dated 11-7-1995 passed by the Lahore High Court, Lahore in Civil Revision No.1762 of 1990).

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

----S. 42---Martial Law Instruction No.23, dated 17-8-1977 [Zone "A"]---Civil Procedure Code (V of 1908), Ss.9 & 115---Allotment of plot cancellation of---Non-providing opportunity of hearing to plaintiff before cancelling his allotment---Recording evidence of parties after framing issues in suit---Dismissal of suit for want of jurisdiction upheld by Appellate Court and in revision by High Court, which for the first time recorded findings on issues relating to merits of the case---Validity---Where an order was passed without providing opportunity of hearing to a party, then there would be no absolute ouster of jurisdiction of civil court including High Court and Supreme Court---Order of cancellation of plot passed by Martial Law Authorities for being coram non judice was not immune from judicial review by civil court---High Court might have refrained from dilating upon merits of the case by deciding all issues independently, whereby injustice and prejudice had been caused to plaintiff by depriving him of right of appeal---Supreme Court accepted appeal and set aside judgments of High Court and courts below and remanded case to civil court for decision of case on merits on basis of material available on record.

Muhammad Swaleh and another v. Messrs United Grain and Fooder Agencies PLD 1964 SC 97; Malik Ghulam Mustafa Khar and others v. Pakistan and others PLD 1988 Lah. 49 and Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26 ref.

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

----Art. 185(3)---Martial Law Regulation No.23, dated 17-8-1977--Cancellation of allotment of plot without hearing allottee---Validity---Supreme Court granted leave to appeal to examine questions as to whether principles of natural justice were applicable to such case; and if answer to such question was in affirmative, whether non-observance of such principles rendered order of cancellation of plot as coram non judice.

(c) Jurisdiction---

----Question of---Such question being of fundamental nature in judicial proceedings should be decided first on priority basis without recording evidence on issues relating to merits of the case---Where court once consumed time in recording evidence, then effort should be made to dispose of case both on law points including question of jurisdiction as well as on merits---Principles.

S.M. Masud Sh. and Masood Akhtar (absent) for Appellant.

Ali Akbar Qureshi, Advocate Supreme Court for Respondent No.1.

Zahid Hussain Khan, Advocate Supreme Court for Respondent No.2.

Date of hearing: 3rd June, 2003.

2007 S C M R 1131

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Muhammad Nawaz Abbasi and Saiyed Saeed Ashhad, JJ

HASHWANI HOTELS LIMITED----Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary Ministry of Finance and others----Respondents

Civil Appeal No.323 of 2004, decided on 9th February, 2007.

(On appeal from the judgment, dated 12-12-2093 passed by High Court of Sindh, Karachi in Constitutional Petition No.615 of 1996).

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

----Ss. 31-A, 79 & 104---Sales Tax Act (VII of 1990), Ss.5 & 6(1)---Rate of customs duty and sales tax, determination of---Date of filing of Bill of Entry (goods declaration), relevancy of---Provisions of S.31-A of Customs Act, 1969 and S.6(1) of Sales Tax Act, 1990 would govern only rate of duty and tax payable on a particular goods on the date of filing of Bill of Entry (goods declaration)---Provision of Customs Act, 1969 relating to calculation, payment and enforcement of sales tax would not apply in presence of similar provisions contained in S.5 of Sales Tax Act, 1990---Requirement of second proviso to S.5 of Sales Tax Act, 1990 would be attracted only when goods imported were liable to be charged to sales tax at the time of filing of Bill of Entry (goods declaration)---Principles.

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

----S. 5---S.R.O.212(I)/91, dated 14-3-1991---Customs Act (IV of 1969), S.18---Motorboat, import of---Exemption notification, subsequent withdrawal of---Pre-condition for claiming exemption from payment of sales tax and customs duty was obtaining of certificate from concerned authority prior to import of motorboat that same could not be manufactured locally---Failure of importer to provide such certificate before withdrawal of exemption notification---Validity---Duty of importer was to have complied with all conditions enumerated in such notification for availing its benefit---Importer for such failure had deprived itself of benefit of exemption notification, thus, could not claim exemption from payment of sales tax and concessional customs duty on motorboat Principles.

(c) Taxation---

----Exemption---Grants or concessions in the nature of exemption from payment of duties/tax would be given a rigid interpretation against tax-payer and in favour of taxing power.

Messrs Bisvil Spinners Ltd. v. Superintendent Central Excise and Land Customs Circle Sheikhupura and another PLD 1988 SC 370 and Pakistan Machine Toll Factory (Pvt.) Ltd. v. Commissioner of Sales, Central Zone "B", Karachi 2006 SCMR 1577 rel.

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

----Arts. 185(3) & 199---Impugned judgment silent regarding ground raised before Supreme Court and in constitutional petition before High Court---Presumption---Nothing on record to show that such ground was agitated before High Court---Held: presumption would be that such ground was not raised and agitated before High Court at the time of arguments---Supreme Court refused to allow to argue such ground.

Fakhruddin G. Ebrahim, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record (absent) for Appellant.

Ms. Naheeda Mehboob Ellahi, D.A.-G. Malik Ittaat Hussain, Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record, M.S. Khattak, Advocate-on-Record and Mumtaz Ahmed, Member Legal, C.B.R. for Respondents.

Date of hearing: 8th November, 2006.

2007 SCMR 1139

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Nasir-ul-Mulk and Syed Jamshed Ali , JJ

PAKISTAN TOBACCO COMPANY LIMITED, ISLAMABAD----Petitioner

Versus

ADDITIONAL COLLECTOR CENTRAL EXCISE, GUJRANWALA----Respondent

Civil Petition No.2614 of 2005, decided on 9th February, 2007.

(On appeal from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 21-7-2005, passed in Civil Appeal No.17 of 1995).

Central Excise Act (I of 1944)---

----S. 3---Central Excise Rules, 1944, Rr.9 & 200---Payment of excise duty after removing cigarettes from factory-Validity-Liability of manufacturer to pay excise duty would be created at the time of removal of excisable goods from factory---Such liability would be determined on the basis of record of goods so removed---Board of Revenue could extend time for payment of excise duty, the liability of which had already been created---Such payment would not exonerate manufacturer from charge of evasion of duty, which took place when goods were removed from factory in violation of Central Excise Rules, 1944---Principles.

Farrukh Jawad Panni, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 9th February, 2007.

2007 S C M R 1143

[Supreme Court of Pakistan]

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

ALLIED BANK LIMITED through Attorney and others----Appellants

Versus

Syed NASIR ABBAS NAQVI and others----Respondents

Civil Appeals Nos.1096 and 1097 of 2005, decided on 12th April, 2006.

(On appeal from the judgment, passed by the Lahore High Court, Rawalpindi Bench in Writ Petition No.679 of 2002, dated 2-7-20003 in both cases).

(a) Industrial Relations Ordinance (XXIII of 1969)---

----S. 25-A---Constitution of Pakistan (1973), Arts.185(3) & 199---Penalty imposed upon an employee by Appellate forum---Alternation of such penalty by. High Court in constitutional jurisdiction by High Court---Scope---Supreme Court granted leave to appeal to examine such question.

Pakistan Tobacco Company v. Channa Khan 1980 PLC 981 and Brig. (Retd.) F.B. Ali v. The State PLD 1975 SC 506 ref.

(b) Industrial Relations Ordinance (XXIII of 1969)---

----S. 25-A---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15(4)---Grievance petition by employee of Bank---Misconduct, charge of---Dismissal from service---Reinstatement in service by Labour Court without granting back benefits to employee---Dismissal of grievance petition by Appellate Tribunal---High Court awarded penalty of stoppage of two increments in view of admission of employee regarding charge of misconduct---Validity---Impugned penalty would be inadequate in view of such admission---Supreme Court, without disturbing reinstatement of employee in service, modified impugned penalty into withholding his promotion for seven years from date of passing of order of his dismissal from service by authority.

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

----Art. 199---Disciplinary matters and administrative functions of public organizations---Interference in such matter by High Court in exercise of its constitutional jurisdiction---Scope---Unless order passed by an authority in its discretion was capricious, arbitrary or illegal, High Court would not interfere in such matters---Departmental authority had exclusive jurisdiction to determine quantum of punishment in the light of charge and court might not substitute its decision in such matter---High Court in suitable cases might look into question of legality or otherwise of an order passed by public functionaries affecting right of a person---Principles.

(d) Industrial Relations Ordinance (XXIII of 1969)---

----S. 25-A---Expression "just and proper" as used in S.25-A(4), proviso, cl.(b) of Industrial Relations Ordinance, 1969---Meaning and scope stated.

The expression "just and proper" used in Clause (b) to the proviso to subsection (4) of S.25-A(4), Industrial Relations Ordinance, 1969 in the legislative wisdom reflects the meaning that there must be some control on the exercise of power of the employer in the matter of determining the degree of punishment and Labour Court in a proper case may wholly or partially allow a grievance petition and modify the penalty awarded to an employee by the employer with any other sort of penalty prescribed under the law.

(e) Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 45 & 47(3)---Remedy of appeal before Appellate Tribunal against order of Labour Court---Continuation of proceedings before Labour Court.

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

----Arts. 185(3) & 199---Interference by Supreme Court in order passed by High Court in its discretionary jurisdiction---Scope stated.

Supreme Court is always reluctant to interfere in the order of High Court passed in its discretionary jurisdiction under the Constitution, unless there is serious question of law of public importance.

Shahid Anwar Bajwa, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant (in C.A. No.1096 of 2005).

Ch. Afrasiab Khan, Advocate Supreme Court for Respondent (in C.A. No.1096 of 2005).

Ch. Afrasiab Khan, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Appellant (in C.P. No.1097 of 2005).

Shahid Anwar Bajwa, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents (in C.P. No.1097 of 2005).

Date of hearing: 12th April, 2006.

2007 S C M R 1149

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Nasir-ul-Mulk and Syed Jamshed Ali, JJ

ASSISTANT COLLECTOR OF CENTRAL EXCISE AND LAND CUSTOMS----Appellant

Versus

Mst. SIDDIQAN AFZAL and others----Respondents

Civil Appeal No.1985 of 2000, decided on 8th February, 2007.

(On appeal from the judgment, of the Lahore High Court, Lahore, dated 26-9-2000 passed in Writ Petition No.2454 of 1983).

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

----Ss. 168(2), 180 & 221---Sea Customs Act (VIII of 1878), Ss.178 & 167(81)---Land Customs Act (XIX of 1924), S.9---Gold of foreign origin seized on 19-5-1963---Issuance of show-cause notice on 8-8-1978---Validity---Seizure of gold under Sea Customs Act, 1878 would be deemed to have been made under repealing Act i.e. Customs Act, 1969---Issuance of show-cause notice and consequences of its non-issuance within prescribed period would be regulated by Customs Act, 1969---Show-cause notice to owner had been issued after fifteen years of seizure of gold and eight years after coming into force of Customs Act, 1969---Gold had become liable to be returned to owner after two months of coming into force of Customs Act, 1969 as no notice was issued within such period---Principles.

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

----S. 168(2)---Return of seized goods would not be an impediment in

way of Adjudicating Officer to impose penalty on its owner, if legally permissible-Principles.

Haji Noor-ul-Haq v. Collector of Customs 1998 MLD 650 and Joint Secretary C.B.R. v. Raja Nazar Hussain and others 1991 SCMR 647 rel.

Izhar-ul-Haq, Advocate Supreme Court for Appellant.

Respondents: Ex parte.

Date of hearing: 8th February, 2007.

2007 S C M R 1153

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Nasir-ul-Mulk and Syed Jamshed Ali, JJ

COLLECTOR, CENTRAL EXCISE AND SALES TAX and another----Appellants

Versus

DEWAN TEXTILE MILLS LIMITED and others----Respondents

Civil Appeal No.13 of 2004, decided on 9th February, 2007.

(On appeal from the judgment, dated 13-2-2002 passed by the Sindh High Court, Karachi Bench Karachi in Constitutional Petition No.D-1686 of 1994).

Sales Tax Act (VII of 1990)---

----Ss. 6 [as modified by Finance Act (IX of 1996) and Finance Act (XIII of 1998), 6-1A [as added by Sales Tax (Amendment) Ordinance (XXV of 2002) & 7---S.R.O. 500(I)/88, dated 26-6-1988---Special steel drums, import of---Exemption of such drums from sales tax---Withdrawal of exemption notification after opening of Letter of Credit and before landing of goods at port of destination---Effect---Sales tax would be chargeable in the same manner and at the same time as same were a duty of customs payable under Customs Act, 1969---Insertion of S.6(1A) in Sales Tax Act, 1990 made S.31-A of the Customs Act, 1969 applicable with retrospective effect---Liability of sales tax would be determined on the date of submission of Bill of Entry.

Pakistan through Ministry of Finance Economic Affairs and another v. Fecto Balarus Tractors Limited PLD 2002 SC 208; Al-Samrez Enterprise v. The Federation of Pakistan 1986 SCMR 1917 and Federation of Pakistan and others v. Amjad Hussain Dilawari and 2 others 1992 SCMR 1270 ref.

Civil Appeal No.1210 of 1977 rel.

Raja M. Irshad, D.A.-G. and Mumtaz Ah.mad Sheikh, Member (Legal) C.B.R. for Appellants.

Nemo for Respondents.

Dates of hearing: 7th and 9th February, 2007.

2007 S C M R 1157

[Supreme Court of Pakistan]

Present: Javed Iqbal and Abdul Hameed Dogar, JJ

MIR ALAM and 2 others----Appellants

Versus

SAHIBZADA and 7 others----Respondents

Civil Appeal No.387 of 2001, decided on 9th January, 2007.

(On appeal from the judgment, dated 30-10-2000 of the Peshawar High Court, Peshawar, in Civil Review No.278 of 1997).

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S.91---Suit for declaration and permanent injunction to restrain unlawful construction on land reserved for graveyard---Plaintiff filed suit in personal capacity claiming relief in respect of entire community---Validity---Dead bodies of relatives of both parties were buried in disputed graveyard---Such case in substance was a case of public nuisance and not private nuisance---Sanction prescribed under S.91, C.P.C. was essential---Suit without such sanction was not competent.

Islamuddin and others v. Ghulam Muhammad and others PLD 2004 SC 633 rel.

M. Aman Khan, Advocate Supreme Court for Appellants.

Respondent No.1 in person.

Respondents Nos.2 to 8: Ex parte.

Date of hearing: 9th January, 2007.

2007 S C M R 1160

[Supreme Court of Pakistan]

Present. Javed Iqbal and Raja Fayyaz Ahmad, JJ

BALOCHISTAN ENGINEERING WORKS LTD.----Petitioner

Versus

ABDUL HAMEED and others----Respondents

Civil Petitions Nos.59 to 70-Q of 2006.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46(5) & 48--West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15---Constitution of Pakistan (1973), Art.185(3)--- Termination of service on allegation of misconduct---Reinstatement---Claim for both backbenefits and compensation in lieu of reinstatement---Services of workers were terminated on allegation of misconduct---Grievance petitions filed by workers against order of their termination of services, had been dismissed by Labour Court---High Court accepted appeals resulting in reinstatement of workers---Employer took workers in service from the date of their reporting for duty on the same terms and conditions as contained in their appointment letters---Said reinstatement order was not accepted by the workers and they filed grievance petitions, which were partly accepted directing employer to pay to workers their wages along with benefits and other privileges from the date of their removal from service---High Court while concluding with the matter finally had observed that as relations between employer and workers had become strained, workers could be awarded remedy as provided by S.46(5) of Industrial Relations Ordinance, 2002 whereunder workers could be awarded compensation in lieu of their reinstatement in service---Workers accepted award of compensation to them in lieu of their reinstatement in service---Workers, who under provisions of S.46(5) of Industrial Relations Ordinance, 2002, were entitled to get compensation not less than twelve months and no more than thirty months basic pay, would not be entitled for back-benefits for the period for which they remained out of service---Both reliefs i.e. compensation in lieu of reinstatement and back-benefits for the period for which they remained out of service, were not permissible under the law.

Hadi Shakeel Ahmed, Advocate Supreme Court for Petitioner.

Muhammad Anwar Khan Durrani, Advocate-on-Record.

2007 S C M R 1169

[Supreme Court of Pakistan]

Present: Javed Iqbal and Raja Fayyaz Ahmad, JJ

MUHAMMAD KHAN and others----Appellants

Versus

PROVINCE OF PUNJAB and others----Respondents

Civil Appeal No.1878 of 2001, decided on 28th February, 2007.

(On appeal from the judgment/order, dated 12-1-2000 of the Lahore High Court, Lahore,' passed in R.S.A. No.19 of 1996).

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

----Ss. 10, 24(b), 30 & 36---Civil Procedure Code (V of 1908), S.9---Specific Relief Act (I of 1877), S.42---Suit for declaration---Grow More Food Scheme---Allotment of land under such scheme and delivery of possession to plaintiff in March, 1957---Policy decision of Government to resume land for auctioning, tenancy of which had expired on or before Rabi, 1962---Resumption of plaintiff's land under such policy---Suit by plaintiff to declare order of resumption of land to be void as his tenancy started from such date of delivery of possession, and period of five years, if counted from delivery of possession, would go beyond Rabi, 1962---Civil Court decreed suit---Appellate Court dismissed suit for lack of jurisdiction of Civil Court, which judgment was affirmed by High Court---Validity---Suit-land was not available and could not be resumed as stipulated period of five years had to be completed after Rabi, 1962, thus, question of termination of lease would not arise---Government had abandoned such policy decision and decided that all allottees under such scheme were eligible to acquire proprietary rights irrespective of date of allotment and termination of leave---Order of resumption of land was void ab initio, thus, no embargo could be imposed on jurisdiction of Civil Court---Supreme Court emphasized on implementation of such Government instructions regarding grant of proprietary rights in letter and spirit in present case also---Supreme Court set aside judgment of High Court and Appellate Court and restored that of Civil Court.

Muhammad Rafiq and others v. Hashmat Ali and others PLD 1992 SC 37; Muhammad Shafi v. Member, Board of Revenue and others 1985 SCMR 817; Abdul Rab v. Wali Muhammad PLD 1980 SCMR 139; Anjuman Talim-ul-Islam (Regd.) Sheikhupura v. Province of West Pakistan PLD 1983 Lah. 294 and Jiwana v. Sahbi PLD 1954 Lah. 253 ref.

(b) Administration of justice---

----Jurisdiction---Administrative Officer/Authority having power to pass an order on existence of certain circumstances would have no jurisdiction to determine such circumstances---Conclusion of such Officer/ Authority as to existence of such circumstances would bind nobody and would be open to challenge in Civil Court by person affected thereby---Principles.

A purely Administrative Officer, who is empowered to pass an order if certain circumstances exist, has no jurisdiction to determine those circumstances and the objective existence of those circumstances is an essential condition of the validity of his order. In respect of every order passed by him, the Court can make an enquiry and if it finds that all the circumstances needed for passing the order were not present, it will declare the order to be void. Although the Officer has been granted no jurisdiction to determine any fact, he will have to ascertain whether the requisite circumstances exist for otherwise he cannot pass the order, but his conclusion as to the existence of those circumstances binds nobody and it is open to any person affected to challenge his act on the ground that those circumstances do not in fact exist. An administrative Officer or authority may be given jurisdiction to determine some facts on proof of which he can pass an order and in that case, he will act in a quasi judicial manner for the determination of those facts and his determination validly reached will support his order in relation to those facts. [Civil Procedure Code (V of 1908), S.9]. ?

Muhammad Jamil Asghar v. the Improvement Trust, Rawalpindi PLD 1965 SC 698 fol.

(c) Administration of justice---

----Jurisdiction---Special Judicial Tribunals cannot define limits of their own jurisdiction and they .are not Judges of facts, which are foundation of their jurisdiction---Special Tribunal by clear words may be made Judge of its own jurisdiction---Mala fide act is in its very nature an illegal and void act---Civil Court can always pronounce an act to be mala fide and void.?

Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698 fol.

Ch. Muhammad Ashraf, Advocate Supreme Court for Appellants.

Mrs. Afshan Ghazanfar, A.A.-G. for Respondents Nos.1 and 2.

Respondent No.3 in person.

Nazir Ahmed Bhutta, Advocate Supreme Court for Respondents Nos.4 to 9.

Date of hearing: 28th February, 2007.

2007 S C M R 1178

[Supreme Court of Pakistan]

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

ZAHER----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.99-K of 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.12 & 18---Constitution of Pakistan (1973), Art.185(3)---Bail, grant of---Accused being 16/17 years old was a minor---In view of tender age of accused and in absence of unnatural lust having been committed, coupled with the circumstances that investigation had been completed and the charge-sheet sent up before the Trial Court, a fit case for the grant of bail pending trial was made out---Petition for leave to appeal was converted into appeal and same was allowed---Petitioner/ accused was admitted to bail accordingly.

Ghulam Qadir Jatoi, Advocate-on-Record/Advocate Supreme Court.

Anwar Mansoor Khan, A.-G. Sindh.

2007 S C M R 1179

[Supreme Court of Pakistan]

Present: M. Javed Buttar and Ch. Ijaz Ahmed, JJ

MUHAMMAD IQBAL and others----Appellants

Versus

ARSHAD IQBAL and others----Respondents

Civil Appeal No.1630 of 2006, decided on 19th March, 2007.

(On appeal from the judgment, dated 9-12-2005 of the Peshawar High Court, Peshawar in Civil Revision No.307 of 2005).

Constitution of Pakistan (1973)---

----Art. 185---Appeal to Supreme Court---Concurrent findings of f2cts recorded by courts below---Validity---Supreme Court, as a rule, could give due weight and consideration to opinion of courts below and would not normally go behind such findings---Exceptions stated.

As an ultimate Court in the land, Supreme Court, as s rule, should give due weight and consideration to the opinion of the Courts below. Normally, Supreme Court does not meddle with findings of fact recorded by the courts below, when it is satisfied that the findings of the courts below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning the appreciation of evidence. This would be notwithstanding that a different view might also be possible. Supreme Court would not normally go behind the concurrent findings of fact recorded by the courts below, unless it can be shown that the finding is on the face of it against the evidence or so patently improbable or perverse that to accept it could amount to perpetuating the grave miscarriage of justice or if there has been any misapplication of a principle relating to appreciation of evidence or finally, if the finding could be demonstrated to be physically impossible. This being the practice and the rule of the court in civil appeals, the burden lies heavily on the appellants to show that the concurrent findings recorded by the High Court are not sustainable on the record and should be interfered with by Supreme Court. Supreme Court does not interfere with the concurrent findings arrived at by the courts below while exercising power under Article 185 of the Constitution in the absence of any misreading or non-reading of evidence by the High Court.

N.S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras PLD 1949 PC 26; Aziz Ullah Khan's case 2000 SCMR 1647; Anwar Zaman's case 2000 SCMR 431; Abdul Rahim's case 2000 SCMR 346; Shukaruddin v. Jan Muhammad 1985 SCMR 1207; Suleman v. Nazar Muhammad 1995 SCMR 565; Sulaiman v. Muhammad Daud Khan NLR 1995 CLJ 518; Abdul Latif v. Muhammad Khan 1990 SCMR 909 and Ahmad Sher v. Muhammad Nawaz and 2 others 1990 SCMR 445 ref.

Qazi Abdul Basit, Advocate Supreme Court for Appellants.

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

Date of hearing: 19th March, 2007.

2007 S C M R 1184

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

GHULAM QADIR----Petitioner

Versus

KALAY KHAN and others----Respondents

Civil Petition No.2188-L of 2001, decided on 10th October, 2006.

(On appeal from the judgment/order, dated 19-4-2001 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur, in Civil Revision No.309-D of 1988/BWP).

Specific Relief Act (I of 1877)---

----S. 12---Constitution of Pakistan (1973), Art.185(3)---Suit for specific performance of agreement to sell---Petitioner instituted suit for specific performance of agreement to sell allegedly executed by predecessor-in-­interest of respondents---Suit was dismissed by the Trial Court, but Appellate Court below decreed suit in favour of petitioner---Revision filed by respondents against judgment of Appellate Court was accepted by High Court, consequently judgment of the Trial Court of dismissal of the suit of petitioner was restored---Scribe of alleged agreement of sale, had clearly stated that no sale consideration was passed in his presence and that he even did not know alleged executor of agreement---Requirements of law had not been complied with in order to prove alleged agreement to sell---High Court had given cogent reasons for the reversal of the judgment of the Appellate Court which suffered from misreading and non-reading of material evidence on record---High Court need not re-appreciate evidence of the parties in order to come to a different conclusion---Impugned judgment of High Court was plainly correct to which no exception could be taken---Petition for leave to appeal was dismissed.

Tanvir Ahmad, Advocate Supreme Court/Advocate-on-Record for Petitioner.

Muhammad Ozair Chughtai, Advocate Supreme Court/Advocate-on-Record for Respondents Nos.1 to 4.

Date of hearing: 10th October, 2006.

2007 S C M R 1186

[Supreme Court of Pakistan]

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

ABDUL GHANI----Appellant

Versus

MUHAMMAD SHAFI and 4 others----Respondents

Civil Appeal No.2009 of 2001, decided on 12th September, 2006.

(On appeal from the judgment, dated 11-5-2001 passed by Lahore High Court, Rawalpindi Bench in R.S.A. No.35 of 1987).

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

----S. 12---Transfer of Property Act (IV of 1882), Ss.58 & 60---Constitution of Pakistan (1973), Art. 185 (3)---Leave to appeal was granted by Supreme Court to consider the contention of petitioner that mortgage deed was nothing but an agreement in furtherance of original agreement of sale through which further amount was paid as earnest money and time was also extended---Petitioner also contended that two immediate courts below did not decide the question of clog on equity of redemption in its true perspective inasmuch as according to law, if stipulation in mortgage deed itself had provided that the same transaction would operate as sale deed on the happening of certain events as per its terms, only then the same could operate as clog on equity of redemption but not in a case where parties intended to keep alive and intact the previous agreement of sale and right of prospective vendee to get the same enforced and sale deed executed independently.

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

----S. 12---Transfer of Property Act (IV of 1882), Ss.58 & 60---Contract Act (IX of 1872), S.55---Limitation Act (IX of 1908), Art.113---Specific performance of agreement to sell---Limitation---Computation---Time as essence of agreement---Predecessor-in-interest of defendants without suppression of agreement to sell dated 30-11-1966, executed mortgage deed on 9-3-1967 with plaintiff, wherein it was agreed that suit property would be transferred in the name of plaintiff on payment of balance sale price fixed in agreement to sell---After the death of predecessor-in­interest of defendants, plaintiff filed suit for specific performance of agreement to sell, which was decreed in favour of plaintiff by Trial Court but Lower Appellate Court dismissed the suit---Judgment and decree passed by Lower Appellate Court was maintained by High Court---Plea raised by plaintiff was that agreement of mortgage was executed in continuation of agreement to sell and time was not essence of the agreement---Validity---Time of one year was fixed in the agreement for completion of sale and in absence of any express stipulation in mortgage deed regarding enlargement of time to complete the sale, it would not automatically be extended and even if there was implied intention to extend time, the sale must have been completed within reasonable time---Normal period provided for filing of suit for specific performance of contract provided under Art.113 of Limitation Act, 1908, was three years from the date of execution of the agreement and such statutory period of three years even if considered to have commenced from the date of execution of mortgage deed or from the date of expiry of agreement to sell, had not yet expired---In a case in which time was not expressly provided for performance of contract or in agreement of sale vendor acknowledged the right of vendee in express terms of completion of sale beyond normal period fixed for its performance in the document, and though time might not be the essence of contract the limitation fu, riling of suit might be computed from the date of refusal---Plaintiff failed to show from record that before filing of suit, he made any effort for fulfilling his part of contract and offered payment of sale price within stipulated time or at least within reasonable time to complete the sale---No acknowledgement of right existed either by predecessor-in-interest of defendants or defendants for completion of sale beyond the period mentioned in the agreement---Delay in filing suit beyond normal period provided under law would be fatal and plaintiff would not be entitled to claim decree for specific performance---No legal or factual infirmity was found in concurrent findings of two courts to differ with the conclusion arrived therein---Appeal was dismissed.

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

----S. 12---Contract Act (IX of 1872), S.55---Specific performance of agreement to sell---Time as essence of contract---Scope---Possession delivered under sale agreement is a shield/anchor to protect right of vendee and he may, if time was not fixed' in the agreement for completion of sale on payment of sale price, claim specific performance of agreement within reasonable time and thus in such case time may not be of the essence of contract---Such is not an inflexible rule to be made applicable in every case as remedy of specific performance of contract is an equitable remedy which is always within discretion of court---Suit for specific performance may be defeated if plaintiff, without any legal excuse fails to perform his part of contract within the time specified therein---Limitation in suit for specific performance of contract in normal circumstances, is not enlarged, in the light of general principle that in respect of sale of immovable property, time is not of the essence of contract, unless sufficient cause and strong reason is shown for filing the suit beyond statutory period.

Sheikh Zamir Hussain, Advocate Supreme Court for Appellant.

Hafiz S.A. Rehman, Advocate Supreme Court for Respondents.

Date of hearing: 12th September, 2006.

2007 S C M R 1193

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Ch. Ijaz Ahmed, JJ

Mst. LALAN BIBI and others----Petitioners

Versus

MUHAMMAD KHAN and others----Respondents

Civil Petitions Nos.1477 and 2712 of 2004, decided on 22nd March, 2007.

(On appeal from the judgment/orders, dated 18-5-2004 and 8-11-2004 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Civil Revision No.181/D of 1999 and Review Application No.7-C of 2004 in Civil Revision No.181/D of 1999).

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

----O. VIII, R.13---List of legal representatives---Scope---Non-filing of such list---Effect---Defendant is under legal obligation to file list of legal representatives along with his written statement and to nominate a person to intimate court, of fact of death of defendant and to furnish court with necessary particulars and addresses of his legal representatives and also to make application for their substitution in view of O.VIII, R.13 C.P.C.---Non-compliance of O.VIII, R.13, C.P.C. authorizes court to proceed with suit, notwithstanding death of such defendant---Even if legal representatives of dead party are not impleaded in petition, the same would not be fatal to the proceedings.

Sakina Bibi v. Muhammad Nawaz 2000 SCMR 1051 and Nazir Ahmad Khan v. Muhammad Shaukat Khan 1999 MLD 1193 rel.

(b) Administration of justice---

----Each and every case is to he decided on its own peculiar facts and circumstances.

Muhammad Saleem's case 1994 SCMR 2213 rel.

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

----S. 13---Right of pre-emption, exercise of---Talb-i-Muwathibat --Time, date and place---Non-appearance of pre-emptor in witness box---Effect---Suit filed by pre-emptor was contested by his attorney, who appeared as witness on behalf of pre-emptor---Plaint filed by pre-emptor did not contain time, date and place of making Talb-i-Muwathibat---Trial Court and Lower Appellate Court concurrently decreed the suit in favour of pre-emptor---High Court, in exercise of revisional jurisdiction, modified the judgments and decrees passed by two courts below only to the extent of sale consideration---Plea raised by vendees was that neither time, date and place of making of Talb-i-Muwathibat was mentioned in the plaint nor pre-emptor himself appeared as witness---Validity---Furnishing of date, time and place in plaint was necessary to establish performance of Talb-i-Muwathibat---Plaint wherein Such date, time and place of Talb-i-Muwathibat and date of issuing notice of performance of Talb-i-Irshad in terms of S.13 of Punjab Pre-emption Act, 1991, was not provided, would be fatal to the pre-emption suit---Pre-emptor did not appear before Trial Court, therefore, making of Talb in terms of S.13 of Punjab Pre-emption Act, 1991, was not proved and such fact was not considered by the courts below in its true perspective---Conclusion reached at by High Court and the courts below suffered from serious errors of law, which, unless set right, was likely to result in miscarriage of justice---Misreading and non-reading of evidence also existed on record---Supreme Court converted petition for leave to appeal into appeal, set aside the judgments and decrees passed by the courts below and dismissed the suit filed by pre-emptor---Appeal was allowed.

Atiq-ur-Rehman v. Muhammad Amin PLD 2006 SC 309; Fazal Subhan v. Sahib Jamala PLD 2005 SC 977; Aisha Bibi v. Saghirul Hassan 1985 SCMR 1758; Shabbir Hussain v. Abdul Raoof 1977 SCMR 287; Shah Wall v. Ghulam Din alias Gaman and another PLD 1966 SC 983; Muhammad Nawaz v. Muhammad Sadiq 1995 SCMR 105; Gul Muhammad v. Mataa Muhammad 2004 SCMR 1600; Niaz Muhammad Mann v. Muhammad Ahmad 1988 SCMR 1016; Gul Usman v. Ahmero 2000 SCMR 866; Province of Punjab v. Gul Muhammad Khan 1988 MLD 2110; Shujat Ali v. Muhammad Riasat PLD 2006 SC 140; Nawab Khan v. Fazalur Rahman 1976 SCMR 502; Maqbool Ahmed v. Muhammad Rafiq 1998 SCMR 112; Allah Wasaya v. Irshad Ahmad 1992 SCMR 2184; Faqir Alam v. Ajab Khan 1986 CLC 1320; Municipal Committee, Jhelum v. Muhammad Shafi 1971 SCMR 740; Muhammad Hassan v. Abdul Ghani PLD 1993 Kar. 623; Muhammad Rafique v. Rashida Begum 1979 CLC 823; Civil Appeals Nos.1951 of 2000 and 1178 of 2005; Mst. Salina Bibi's case 1996 SCMR 1067; Salma Bibi's case 1996 CLC 623; Mst. Wazeeran's case 1996 CLC 682; Kanwal Nain's case PLD 1983 SC 53; Oil and Gas Development Corporation's case PLD 1970 Kar. 332; Muhammad Hashim's case PLD 1971 SC 793 and Hakim Muhammad Buta's case PLD 1985 SC 153 ref.

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

----Art. 185---Appeal to Supreme Court---Scope---Findings of fact---Supreme Court being ultimate court in land, as a rule, should give due weight and consideration to the opinions of the courts below---Supreme Court normally does not interfere with the findings of fact reached by the courts below, when it is satisfied that findings of the Courts below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principle concerning appreciation of evidence.

Malik Shahzad Ahmad Khan, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record (absent) for Petitioners (in C.P. No.1477 of 2004).

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record (absent) for Petitioners (in C.P. No.2712 of 2004).

Nemo for Respondent (in C.P. No.1477 of 2004).

Malik Shahzad Ahmed Khan, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record (absent) for Respondents (in C.P. No.2712 of 2004).

Date of hearing: 20th March, 2007.

2007 S C M R 1202

[Supreme Court of Pakistan]

Present: Javed Iqbal and Raja Fayyaz Ahmad, JJ

Mst. SURRIYA PARVEEN----Appellant

Versus

MUZAFFAR ISLAM MALIK and others----Respondents

Civil Appeal No.877 of 2002, decided on 27th February, 2007.

(On appeal from the order, dated 13-7-2001 of the Lahore High Court, passed in Civil Revision No.406/D of 2001 and C.M.As. 1363, 1364/C of 2001).

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

----Art. 185(3)---Leave to appeal was granted by Supreme Court to examine the question that issue relating to right of ownership of house in dispute and question that equity would favour the party, was not properly attended to by High Court.

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

----Ss. 12 & 27(b)---Specific performance of agreement to sell---Bona fide purchaser for consideration---Cancellation of allotment---Condemned unheard, principle of---On the basis of agreement to sell between plaintiff and Capital Development Authority, plot in dispute was allotted to plaintiff, whereon construction was being raised by licensee of the Authority---Licensee failed to complete construction according to plan thus plaintiff stopped making payment of instalments as per agreement---After issuing notice to plaintiff, licensee cancelled the plot---Capital Development Authority, after cancellation of the plot from the name of plaintiff, allotted same to defendant, who raised construction on it---Plaintiff sought specific performance of agreement to sell, which suit was decreed in his favour by Trial Court to the extent of recovery of amount paid by him but Lower Appellate Court modified the decree and found plaintiff entitled to recovery of the possession of the plot in dispute---Judgment and decree passed by Lower Appellate Court was maintained by High Court---Plea raised by defendant was that she being bona fide allottee of the plot raised construction over it and was entitled to retain its possession---Validity---Plot in question was allotted at first instance in favour of plaintiff by whom price of plot was paid to Capital Development Authority, which culminated into agreement between the Authority and plaintiff, which was got registered and physical possession was handed over to him---Plaintiff got sanctioned loan from House Building Finance Corporation, after completing all mandatory formalities to get physical possession---Allotment of plot in question was confirmed by Capital Development Authority and the Authority could not have cancelled the plot that too without issuance of any notice and affording proper opportunity of hearing---Judgment and decree passed by High Court being well based did not warrant interference---Defendant had fulfilled her contractual obligations and being a bona fide purchaser her interest must be protected by Capital Development Authority---Supreme Court directed the Authority that actual amount of construction spent by defendant should be determined and amount deposited by her be returned---Supreme Court also directed that defendant be preferably allotted some constructed house in the same scheme if lying vacant, as it would be in the interest of justice, fairplay and equity---Appeal was dismissed in above terms.

Muhammad Munir Peracha, Advocate Supreme Court for Appellant.

Syed Ali Hassan Gillani, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondent No.1.

Nemo for Respondents Nos.2 and 3.

Date of hearing: 27th February, 2007.

2007 S C M R 1209

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

MUHAMMAD MAHMOOD BAWANI----Petitioner

Versus

DEPUTY CONTROLLER BUILDING ZONE-B and others----Respondents

C.P.L.A. No.168-K of 2006, decided on 12th October, 2006.

(On appeal from order, of High Court of Sindh, Karachi, dated 6-4-2006 passed, in C.P. No.D-39 of 2006).

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

---Art. 199---Constitutional petition involving factual controversies---Maintainability---Constitutional petition would be ill-advised and completely misconceived.

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

----Art. 185---Jurisdiction of Supreme .Court---Scope---Supreme Court was not expected to embark upon inquiry into controversial facts of case and record its findings in exercise of its constitutional jurisdiction, which was meant only for resolving and interpreting pure questions of law.

(c) Public functionaries---

----Duty and function of---To act strictly according to law and within parameters of the duties and functions prescribed under statute.

Syed Shahenshah Hussain, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Petitioner.

Shahid Jamiluddin, Additional Controller, Karachi, Building Control Authority for Respondents Nos.1 to 3.

Dr. Qazi Khalid Ali, Additional Advocate-General, Sindh along with Shah Rukh; S.H.O. Kharadar for Respondents Nos.4 and 5.

Nemo for Respondents Nos.6 and 7.

Date of hearing: 12th October, 2006.

2007 SCMR 1212

[Supreme Court of Pakistan]

Present: Javed Iqbal, M. Javed Buttar and Hamid Ali Mirza, JJ

Mst. HAZAN and 48 others----Appellants

Versus

GOVERNMENT OF BALOCHISTAN and 383 others----Respondents

Civil Appeal No.1030 of 1999, decided on 3rd April, 2007.

(On appeal from the judgment, dated 23-12-1996 of the High Court of Balochistan, Quetta passed in C.P. No.200 of 1995).

West Pakistan Land Reforms Regulations, 1959 (MLR No.64)---

----Para. 21(1) & (2)---Abolishing of Jagirs---Retention of area by Jagirdars---Lands of appellants being Jagirs reverted to Government but appellants were not allowed to retain any piece of land as provided by Para.21(2) of MLR No.64---Validity---Appellants or their predecessor­-in-interest, at the relevant time were recorded in Record of Rights, as Jagirdars and properties in dispute were not subject to assessment of land revenue, hence High Court correctly held that the properties in dispute were "Jagirs" and under para.21(1) of MLR, 64 of 1959, the same stood abolished automatically and reverted to Government free from any encumbrance or charge, with effect from 3-10-1959---Valuable rights had accrued under Para.21(2) of MLR No.64, in favour of persons whose "Jagirs"/grants etc. stood abolished and reverted to Government---Land Reform Authorities were under a duty to determine whether appellants or their predecessors-in-interest, at the relevant time were entitled to those benefits or not but no such exercise was ever undertaken by any Authority---So far it had not been determined that even under Para.21(2) of MLR No.64, appellants or their predecessors-­in-interest were not entitled to retain any area out of their "Jagirs" because they were owners or possessed more than 500 acres of irrigated land or 36000 Produce Index Units in addition to the land under "Jagirs" to disentitle them to claim any benefit---Benefit was conferred on all such Jagirdars automatically and provision of para.21(2) of MLR No.64, was self-explanatory---Supreme Court directed the authorities to immediately initiate proceedings for determining the rights/entitlements, if any, of appellants or their predecessors-in-interest under Para.21(2) of MLR No.64 and to take steps for giving them their entitlement in accordance with law, rules, and regulations etc.---Appeal was allowed accordingly.

1970 SCMR 81; Pakistan Post Office v. Settlement Commissioner and others 1987 SCMR 1119 and Nawabzada Malik Habibullah Khan Tiwana and others v. The Province of West Pakistan and another PLD 1967 Lail. 533 ref.

H. Shakeel Ahmed, Advocate Supreme Court for Appellants.

Salahuddin Mirza, A.-G. Balochistan and Mehmood Raza, Addl. A.-G. Balochistan for Official Respondents Nos.1 to 9.

Basharatullah, Senior Advocate Supreme Court and M.N. Kohli, Advocate-on-Record for Private Respondents Nos.10 to 384 except 22 to 26.

Date of hearing: 9th February, 2007.

2007 S C M R 1223

[Supreme Court of Pakistan]

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

MAQBOOL AHMED and others----Petitioners

Versus

GHULAM HUSSAIN and others----Respondents

Civil Appeals Nos.1314 and 1315 of 1999, decided on 23rd November, 2004.

(On appeal from the judgment, dated 30-9-1998 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Writ petition No.4-R of 1992).

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

----S. 4---Evacuee Property and Displaced Persons Laws (Repeal) Act, (XIV of 1975), S.2(2)---Specific Relief Act (I of 1877), S.55---Suit for permanent injunction---Right of pre-emption is a right of substitution and not of sale---Effect---Findings of Settlement Authority on question of fact---Findings of High Court on question of fact---Plaintiff/appellant was allotted a House bearing No.S-4, on 19-12-1964---Plot bearing No.S-4/B adjacent to S-4 was put to auction sale by Settlement Authority on 26-8-1964 and upon death of auction purchaser, his son sold the plot---Other plaintiff/respondent pre-empted the sale and decree to that effect was passed in his favour which was upheld by High Court in appeal---First plaintiff filed a suit for permanent injunction against vendee of plot S.-4/B as well as the other plaintiff which was dismissed on 19-10-1984 by Trial Court and appeal tiled thereagainst was also dismissed---Revision petitioner filed thereagainst was also dismissed by High Court---First plaintiff also filed an application on 21-6-1968 before Settlement Authority, challenging auction proceedings---Settlement Authority accepted said application on 12-8-1991 and set aside auction proceedings---Other plaintiff challenged order of Settlement Authority through constitutional petition which was accepted---Validity---Settlement Authority had, through inquiry about a question of fact, arrived at an emphatic conclusion that Plot No.S-4/B never existed on the spot and in settlement record nothing was available to be allotted to anyone or to be put to auction---High Court neither had any means nor any reason to refute aforesaid finding of Settlement Authorities regarding a pure question of fact---High Court had no jurisdiction to interfere therewith---Register where Plot No.S-4/B seemed to have cropped up for first time, traces of interpolation, erasures and overwriting were visibly apparent---Conclusion about question of fact arrived at by Settlement Authority was based on correct appraisal of evidence which had been set aside by High Court for no reason at all---On application filed by first plaintiff Settlement Authority on 26-8-1964 had given direction that auction proceedings were not to be confirmed---Matter of auction in dispute within ambit of S.2(2) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 was pending before Settlement Authorities from 1968 onwards which was finally decided through order dated 12-8-1991---Even in absence of any final order passed on application, of first plaintiff, the contents of constitutional petition filed by other plaintiff were to be taken as admission of pendency of matter before Settlement Authority---Other plaintiff/respondent's right of pre-emption was a right of' substitution and not of sale---Rights where so acquired by substitution were bound to fail when original transaction was found unlawful---Every subsequent transaction in the suit was bound to sink along with fate of original auction proceedings---Judgment passed by High Court was set aside and order of Settlement Authority was maintained---Appeals were allowed.

?

Khawaja Muhammad Farooq, Advocate Supreme Court for Petitioners.

A. Rashid Awan, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Respondent No.1.

Other respondents: Ex parte.

Date of hearing: 23rd November, 2004.

2007 S C M R 1227

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Ghulam Rabbani, JJ

MUHAMMAD BAKHSH----Appellant

Versus

Mst. GHULAM FATIMA through L.Rs. and others----Respondents

Civil Appeal No.1897 of 2001, decided on 4th April, 2007.

(On appeal from the judgment, dated 27-11-1998 of the Lahore High Court, Multan Bench, passed in Writ petition No.686 of 1975).

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

----S. 19-A---Cooperative Societies Act (VII of 1925), S.27---Allotment of State land as member of Cooperative Farming Society of the area had already been found by the authorities as eligible for grant of proprietary rights when he passed away---Allottee's interest and rights in the said land stood devolved upon his legal heirs under Muslim Personal Law of inheritance notwithstanding anything contained in the bye-laws of the cooperative society---Nomination of a person by the late allottee would not, by itself, deprive his legal heirs to inherit the estate of deceased--Provisions of S.27, Cooperative Societies Act, 1925 and bye-laws of the Society would not be construed so as to exclude the application of Muslim Personal Law of inheritance, as the bye-laws of a Cooperative Society were meant for the purpose of internal management which did not adversely affect the vested rights of the third party.

Dr. Muhammad Aslam Sial v. Board of Revenue, Punjab and 2 others 2004 CLC 108; Mst. Amtul Habib and others v. Mst. Musarrat Parveen and others PLD 1974 SC 185; Fazal Shah v. Muhammad Din and others 1990 SCMR 868; Manzoor Ahmed v. Mst. Salman Bibi and others 1998 SCMR 388; Mst. Aisha and 23 others v. Member (Colonies) Board of Revenue and 6 others Civil Appeal No.139 of 1987 and Cooperative Central Bank Ltd. and others v. Additional Industrial Tribunal, Andhra Pradesh, Hyderabad and others AIR 1970 SC 245 ref.

Fhsan-ul-Haq Ch. Advocate Supreme Court and Gul Zarin Kiani, Advocate Supreme Court for Appellant.

Syed Asghar Hussain Sabzwari, Advocate Supreme Court for respondents Nos. 1 to 4.

Raja Saeed Akram, A.A.-G. Punjab for Respondents Nos.5, 6 and 8.

Date of hearing: 4th April; 2007.

2007 S C M R 1231

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Tassaduq Hussain Jillani and Karamat Nazir Bhandari, JJ

V.C. UNIVERSITY OF PUNJAB, LAHORE---Petitioner

Versus

Mst. MARIA HIDAYAT KHAN and others----Respondents

Civil Petition No.958-L of 2006, decided on 25th July, 2006.

(On appeal from the order, dated 12-5-2006 passed by the Lahore High Court, Lahore in Writ Petition No.18211 of 2005).

Calendar of University of the Punjab, 1998---

----Vol. II, Chap. IV, Regl.8---First Professional (Composite) M.B.,B.S. Examination---Non-availing of four prescribed chances by candidate to appear in examination---University not allowing candidate to submit admission form for fifth chance to appear in examination---Validity---Candidate was supposed to take examination according to prescribed rules and regulations of University---Where prescribed chances were not availed, then there would be no scope for granting additional chance to such a candidate---Candidate had rightly been declined fifth chance in circumstances.

Omer Naseer Muhammad v. Principal, Nishtar Medical College and others 2006 SCMR 695; University of the Punjab and others v. Mst. Samea Zafar Cheema and others 2001 SCMR 1506; Ali Yousuf and another v. Chairman of Academic Council and Principal, Dow Medical College, Karachi and others 2000 SCMR 1222; Rana Saeed Ahmad v. The Controller of Examination, Bahauddin Zakriya University, Multan 1996 SCMR 792 and Akhtar Ali Javed v. Principal, Quaid-i-Azam Medical College, Bahawalpur 1994 SCMR 532 rel.

Muhammad Arif Raja, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Petitioner.

M. Shahzad Shaukat, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Respondents.

2007 S C M R 1233

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

AKBAR ALI----Appellant

Versus

MUHAMMAD ABDULLAH----Respondent

Civil Appeal No.1832 of 2001, decided on 2nd April, 2007.

(On appeal from the judgment, dated 2-11-1999 of the Lahore High Court, Lahore in Civil Revision No.2278 of 1995).

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

----S. 13(3)---Qanun-e-Shahadat (10 of 1984), Art.79---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider that according to S.13 of Punjab Pre-emption Act, 1991, it was required that notice regarding Talbs should be attested by two truthful witnesses, therefore, it was a document which was required by law to be attested under Art.79 of Qanun-e-Shahadat, 1984 and two attesting witnesses should have been called in Trial Court to prove the same, whereas only one witness was examined and on account of non-production of other witness finding of Trial Court that mandatory requirement as to fulfilment of Talbs was not complied with was correct and suit was liable to be dismissed and was rightly dismissed by Trial Court.

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

----S. 13(3)---Qanun-e-Shahadat (10 of 1984), Art.79---Right of pre­emption---Talb-i-Ishhad, notice of---Proof---Producing only one attesting witness---During trial, pre-emptor produced only one witness to prove notice. of Talb-i-Ishhad---Trial Court dismissed the suit on the ground, that requirement as to making of Talbs was not complied with---Appellate Court set aside the judgment and decree passed by Trial Court and decreed the suit in favour of pre-emptor---Judgment and decree passed by Appellate Court was maintained by High Court---Plea raised by vendee was that pre-emptor had failed to prove notice of Talb-i-Ishhad as only one attesting witness was produced by him---Validity---Demand of Talb-i-Ishhad was to be .expressly made in presence of two witnesses pnd for its proof, it was mandatory that both the witnesses be examined to face the test of cross-examination to determine their truthfulness---Judgment and decrees passed by High Court and lower Appellate Court were set aside by Supreme Court and that of Trial Court was restored---Appeal was allowed.

Hamid Qayum and 2 others v. Muhammad Azeem through Legal Heirs and another PLD 1995 SC 381 and Mahomedan Law, 1987, section 225 ref.

Taki Ahmad Khan, Advocate Supreme Court for Appellant.

Sanaullah Zahid, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondent.

Date of hearing; 29th November, 2006.

2007 S C M R 1238

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Falak Sher, JJ

WAPDA through Superintending Engineer and others----Appellants

Versus

MANZOOR HUSSAIN----Respondent

Civil Appeal No.1390 of 2000, decided on 10th February, 2005.

(On appeal from the judgment, dated 18-7-1998 passed by Federal Service Tribunal, Lahore in Appeal No.1032-L of 1997).

Pakistan Water and Power Development Authority Leave Rules for Water and Power Development Authority Employees, 1982---

----R. 27---Service Tribunals Act (LXX of 1973), S.4---Fundamental Rules, R.18---Constitution of Pakistan (1973), Art.212(3)---Absence without leave for 21 years---Belated issuance of show-cause notice---Effect---Employee joined service of WAPDA in 1974 and in the year 1976, he proceeded on leave and remained absent for 21 years---Employee was issued show-cause notice on 30-9-1997 and his services were terminated in the same year---Federal Service Tribunal on appeal reinstated employee in service after treating his prolonged absence without leave as extraordinary leave without pay on ground that WAPDA was responsible for lapses for not taking notice of such absence at the earliest---Validity---Action of WAPDA against employee was though belated but it was the employee who had to justify his absence of not one day but of more than two decades---Absence of employee was so glaring and unjustifiable that there was no need even to hold an enquiry-Belated action taken by WAPDA was perfectly justified---Employee being in service of an authority, he could not be allowed to rejoin his service at his own pleasure and convenience---Rule 27 of Pakistan WAPDA Leave Rules for WAPDA Employees, 1982, clearly provided that even by combination of different types of leaves, an employee was to cease to be an employee, if he remained absent beyond a prescribed period---Even under Rule 18 of Fundamental Rules, a civil servant who remained continuously absent from duty with or without leave for a period of more than five years ceased to be in government service---Issuance of show-cause notice could at the most be dubbed as a much belated action but this lapse did not in any case regularize an absence of 21 years without leave---Appeal filed by WAPDA was accepted.

Ch. Ghulam Hussain Gulshan, Advocate Supreme Court for Appellants.

Mian Mehmood Hussain, Advocate Supreme Court for Respondent.

Date of hearing: 10th February, 2005.

2007 SCMR 1240

[Supreme Court of Pakistan]

Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ

SARGODHA TEXTILE MILLS LIMITED through General Manager----Petitioner

Versus

HABIB BANK LIMITED through Manager and another----Respondents

Civil Petition No.2142 of 2005, decided on 2nd April, 2007.

(On appeal from the judgment passed by Lahore High Court, Lahore in R.P. No.61 of 2004, dated 21-6-2005).

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

----Arts. 185(3) & 199---Petition for leave to appeal before Supreme Court challenging both orders of High Court dismissing constitutional petition and review petition---Maintainability---High Court had dismissed constitutional petition and review petition on technical ground, but not on merits---Petitioner had availed remedy of review before High Court in good faith and had not consumed time in availing remedy before a wrong forum---Petitioner was not precluded to challenge both such orders before Supreme Court---Petitioner had been condemned unheard on merits and High Court had failed to exercise jurisdiction in proper manner---Supreme Court remanded case to High Court for decision of constitutional petition on merits.

Ghulam Hussain v. Kanwar Ashiq Ali Khan PLD 1980 SC 198; Ghulam Nabi v. Rashid PLD 2000 SC 63; Crown v. Haveli PLD 1949 Lah. 550 and Pir Muhammad v. Education Town Cooperative Society Ltd. 1982 SCMR 995 ref.

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

----Art. 199---Pendency of constitutional petition before High Court---Filing of civil suit and its subsequent withdrawal would not affect maintainability of constitutional petition---Principles.

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

----Art. 199---Constitutional petition---Availing remedy of civil suit on same subject would not bar remedy of constitutional petition in every case---Principles.

The multiplication of litigation on the same subject before the same forum or different forum is not permitted and must be discouraged, but in certain situations the availing of the remedy of civil suit may not be considered bar to avail the remedy of writ petition on the same subject and vice versa. The rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available, is not a rule of barring jurisdiction, but a rule by which the Court regulates its jurisdiction. One of the well-recognized exceptions to the general rule is a case where an order is attacked on the ground that it was wholly without authority. Where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court, in the exercise of its writ jurisdiction, has power to grant relief to the aggrieved party. A question of jurisdiction is a matter for review, which is based not on the merits, but on the legality of the lower authority's 'proceedings.

The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division PLD 1972 SC 279 fol.

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

Shams Mahmood Mirza, Advocate Supreme Court and Legal Advisor, CIRC for Respondent No.1.

Raja Abdul Ghafoor, Advocate Supreme Court for Respondent No.2.

Date of hearing: 7th April, 2006.

2006 S C M R 1245

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Tassaduq Hussain Jillani and Karamat Nazir Bhandari, JJ

COLLECTOR OF SALES TAX AND CENTRAL EXCISE, LAHORE----Petitioner

Versus

Messrs PATTOKI SUGAR MILLS LTD. and others----Respondents

Civil Petitions Nos. 813-L to 820-L and 835-L of 2005, decided on 27th July, 2006.

(On appeal from the order, dated 7-3-2005 passed by the Lahore High Court, Lahore in C.As. Nos.162 to 170 of 2001).

Central Excise Rules, 1944---

----Rr. 10(1)(2)(3), 12 & 13---S.R.O. 547(I)/96 dated 1-6-1996---Customs Act (IV of 1969), S.32-Constitution of Pakistan (1973), Art.185(3)---Evasion of excise duty---Show-cause notice under Rule 10 of Central Excise Rules, 1944--Question of limitation prescribed in Central Excise Rules, 1944---Department issued show-cause notice to Sugar Mills under Rule 10 of Central Excise Rules, 1944, on ground that the latter while exporting sugar had evaded excise duty---Sugar Mills contended; that show-cause notices issued by Department were illegal and beyond limitation; that there was no specific allegation in respect of tax evasion falling under Rule 10(1) of Central Excise Rules, 1944; that Department had knowledge about export of sugar by Mills but no action was taken against them, knowing well that there was no violation of any provision but subsequently vague notices were issued by Department to cover limitation provided in Rule 10 (1)(2)(3) of Central Excise Rules, 1944 and that provision of S.32 of Customs Act, 1969 was similar to that of Rule 10 of Central Excise Rules, 1944---High Court while sustaining contentions of Mills allowed appeals of Mills---Leave to appeal was granted to Department to examine provisions of Rule 10 of Central Excise Rules, 1944 and S.32 of Customs Act, 1969 and ratio of judgments pronounced in Assistant Collector of Customs and others v. Khyber Electric Lamps and others 2001 SCMR 838 and Collector of Sales Tax and Central Excise Lahore v. Zamindara Paper and Board Mills C.P. No. 702-L of 2003.

Assistant Collector Customs and others v. Messrs Khyber Electric Lamps and others 2001 SCMR 838 and Collector of Sales Tax and C.E. Lahore v. Zamindara Paper and Board Mills and others C.P. No.702-L of 2003 rel.

Izhar-ul-Haq, Advocate Supreme Court, Tanvir Ahmad, Advocate-on-Record, Nazim Saleem, Collector Sales Tax and Muhammad Saeed Wattoo, Deputy Collector Sales Tax for Petitioners.

Syed Mansoor Ali Shah, Mian Abdul Ghaffaar, Advocates, Muzammal Akhtar Shabbir, Advocates Supreme Court, M.A. Qureshi, Ch. M. Anwar Khan and Mahmudul Islam, Advocates-on-Record for Respondents.

2007 S C M R 1251

[Supreme Court of Pakistan]

Present: Javed Iqbal and Mian Shakirullah Jan, JJ

REGISTRAR, LAHORE HIGH COURT, LAHORE----Appellant

Versus

MUHAMMAD AFZAL KHAN, CIVIL JUDGE, SAHIWAL and another----Respondents

Civil Appeals Nos.1832 and 1833 of 2003, decided on 26th April, 2007.

(On appeal from the judgment, dated 27-2-2003 passed by the Punjab Subordinate Judiciary Tribunal, Lahore in Service Appeals Nos.84 and 85 of 2003).

(a) Punjab Subordinate Judiciary Service Tribunals Act (XII of 1991)---

----S. 3---Constitution of Pakistan (1973), Art.212(3)---Leave to appeal was granted on the ground that judgment of the Tribunal prima facie appeared to be based on certain assumptions which were not sustainable in law.

(b) Civil service---

----Annual Confidential Report---Allegation of bias---Remarks about the performance of an incumbent may be a, subjective evaluation on the basis of objective criteria where substitution for an opinion of the competent authority is generally avoided unless the same is tainted with mala fide, partiality and bias---Annoyance of the Reporting Officer over the insistence of incumbent for vacation of the official accommodation allotted to him (incumbent) can be a factor.

Zahoor Hussain v. Principal of Government College, Sahiwal and others 2005 SCMR 1035 ref.

(c) Civil service---

----Annual Confidential Report---Expunction of adverse remarks---Civil servant having a long tenure of service of about 23 years had not been given any adverse remarks except the one in question---Service Tribunal had given sufficient reasons for the interference by expunging the adverse remarks from the Annual Confidential Reports and no justification existed to differ with the impugned judgment---Supreme Court dismissed the appeal against order of Service Tribunal in circumstances.

Ms. Afshan Ghazanfar, A.A.-G. and Nazar Hussain, Deputy Registrar for Appellant.

Pervaiz Inayat Malik, Advocate Supreme Court for Respondent No.1.

M. Yousaf, (S.O.) Legal for Respondent No.2.

Date of hearing: 26th April, 2007.

2007 S C M R 1254

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J., Tassaduq Hussain Jillani and Karamat Nazir Bhandari, JJ

ASHFAQ AHMAD BUTT----Petitioner

Versus

MUHAMMAD AZAM----Respondent

Criminal Petition No.566/L of 2006, decided on 24th July, 2006.

(On appeal from the order, dated 28-6-2006 passed by the. Lahore High Court, Lahore in Criminal Miscellaneous No.3523/B of 2006).

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/148/149/109---Anti-Terrorism Act (XVII of 1997), S.7---West Pakistan Arms Ordinance (XX of 1965), S.13---Bail, grant of---Allegation in F.I.R. not supported by injured during trial---Testimony of other eye-witnesses supporting allegation might not be very helpful to prosecution---Prosecution could not throw entire blame on side of accused for non-conclusion of trial for 2-1/2 years---Accused was granted bail in circumstances.

(b) Criminal trial---

----Eye-witnesses, testimony of---Evidentiary value---Allegation in F.I.R. not supported by injured during trial---Testimony of other eye-witnesses supporting allegation might not be very helpful to prosecution.

M.A. Zafar, Advocate Supreme Court and Ch. M. Anwar Khan, Advocate-on-Record for Petitioner.

Muhammad Yasin Chughtai, Advocate Supreme Court and A.H. Masood Advocate-on-Record for Respondent No.1.

Khalid Mehmood Farooqi, Advocate Supreme Court with Abdul Hameed, S.-I. Police Station Mozang, along with original record for the State.

2007 S C M R 1256

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed and Hamid Ali Mirza, JJ

Mst. RAZIA JAFAR and others----Appellants

Versus

GOVERNMENT OF BALOCHISTAN and others----Respondents

C.As. Nos.1847 of 1998, 18 of 2001, C.Ps. Nos.49-Q to 51-Q to 56-Q of 2003 and C.M.A. No.1753 of 2006 in C.P. No.49-Q of 2003, decided on 5th April, 2007.

(On appeal from the judgments, dated 30-4-1998, 27-1-2003 and 21-4-2000 passed by High Court of Balochistan, Quetta in C.Ps. Nos.509 of 1997, 177 of 2000, 1999 of 2000, 234 of 2000 and 155 of 1998).

(a) West Pakistan Board of Revenue Act (XI of 1957)---

----S. 8---Review petition---Objection regarding maintainability of review petition---Duty and obligation of Board of Revenue would be to decide such objection petition after judicial application of mind---Principles.

Gouranga Mohan Sikdar's case PLD 1970 SC 158 and Mollah Ejahar Ali's case PLD 1970 SC 173 rel.

(b) West Pakistan Board of Revenue Act (XI of 1957)---

----Ss. 2(i)(iii), 4(2), 6(1)(2)(3), 7 & 8---Review petition---Cognizance of review petition taken by Full Board consisting of three Members of Board of Revenue and passed various orders after application of mind---Decision of review petition by Senior Member while sitting singly---Validity---Board of Revenue was bound to decide controversy in accordance with law without fear, favour and nepotism---Review petition decided by impugned order was judicial exercise of jurisdiction---If cognizance of review petition was initially taken by one Member, but was finally decided by Full Board, then nobody could be said to have been prejudiced by increase in the number of Members---Application of mind by three persons could not be equated with application of mind by one person---Controversy had been decided between parties by applying mind by one Member instead of three Members---Decision of review petition by single Member was illegal---Supreme Court remanded case to Full Board for its decision in accordance with law.?

Muhammad Yar's case PLD 1991 Lah. 256; Utility Stores Corporation's case PLD 1987 SC 447; Zahid Akhtar v. Government of Punjab PLD 1995 SC 530 and Ch. Zahur Ilahi v. Mr. Zulfiqar Ali Bhutto PLD 1975 SC 383 rel.

(c) Words and phrases---

----"Prejudice"---Definition.?

Words and Phrases Permanent Edition Volume 33 page 461 ref.

(d) Administration of justice---

----Public functionaries---Duty and obligation of---To decide controversy between parties after application of mind.?

(e) Administration of justice---

----Nobody shall be prejudiced by the act of court or act of public functionaries.?

Ahmad Latif Qureshi v. Controller of Examination PLD 1994 Lah. 3; Arshad Hussain's case 1991 CLC Note 20 at p.13; Mian Irshad Ali's case PLD 1975 Lah. 7 and Fateh Khan's case PLD 1991 SC 782 rel.

Tariq Mehmood, Advocate Supreme Court for Appellant (in C.As. Nos.1847 of 1999 and 18 of 2001).

Tariq Mehmood, Advocate Supreme Court for Petitioner (in C.P. No.56-Q of 2003).

Ehsanul Haq Ch., Advocate Supreme Court for Petitioner (in C.P. No.49-Q of 2003).

Muhammad Munir Peracha, Advocate Supreme Court for Petitioner (in C.Ps. Nos.50-Q and 51-Q of 2003).

Mehmood Raza, Additional Advocate-General and Raja Abdul Ghafoor, Advocate-on-Record for official Respondents (in all cases).

Date of hearing: 5th April, 2007.

2007 S C M R 1263

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Tassaduq Hussain Jillani and Karamat Nazir Bhandari, JJ

SHAH MUHAMMAD----Petitioner

Versus

MUHAMMAD ZAMAN and others----Respondents

Criminal Petitions Nos.193 to 195-L of 2006, decided on 25th July, 2006.

(On appeal from the judgment of the Lahore High Court Bahawalpur Bench dated 21-2-2006 passed in Criminal Appeal No.31 of 2004/BWP, Criminal Revision No.85 of 2004/BWP and Criminal Appeal No.141 of 2004/BWP).

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

----Art. 185(3)---Acquittal of accused by High Court---Interference by Supreme Court in impugned judgment---Scope---When the case was that of double presumption of innocence, Supreme Court would be very slow in interfering with impugned judgment.

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

----S. 302/34---Constitution of Pakistan (1973), Art.185(3)---Plea of prosecution was that petitioner and other co-accused brought deceased from street in their house and murdered him by inserting external force through his rectum---One co-accused under S.342, Cr.P.C., stated that on the night of alleged occurrence, other co-accused were not present in the house, when deceased in order to see his sister trespassed in her house by scaling over the wall, he saw him when he was coming near the cot of his sister and gave 2/3 Sota blows upon legs and arms of deceased, who after receiving injuries ran away from the spot after opening the gate from inside and went to his house---Supreme Court granted leave to appeal to examine such aspect of case and other material available on record.

M. A. Zafar, Advocate Supreme Court for Petitioners (in all petitions).

Nemo for Respondents (in all petitions).

2007 SCMR 1266

[Supreme Court of Pakistan]

Present: Javed Iqbal, Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

GUL MEER and others----Appellants

Versus

HASSAN BASRI and others----Respondents

Civil Appeal No.653 of 2005, decided on 15th March, 2007.

(On appeal from the judgment, dated 17-6-2004 passed by Lahore High Court, Lahore in Civil Revision No.50 of 2002).

West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----Ss. 10 & 26---Specific Relief Act (I of 1877), S.42---Suit for declaration of title on basis of correction of old entries made in Revenue Record---Consolidation proceedings, pendency of---Filing of suit on direction of Consolidation Officer to parties to settle such matter through civil court---Refusal of civil court to entertain suit being barred by S.26 of West Pakistan Consolidation of Holdings Ordinance, 1960---High Court set aside order of Trial Court and Appellate Court---Validity---Such direction could not be made in view of bar contained in S.26 of West -Pakistan Consolidation of Holdings Ordinance, 1960---Such direction would not change statutory provision barring entertainment of such lis by civil court---Such suit challenging old entries in Revenue Record, if was entertained, then question of limitation would be a factor to be adjudged---Supreme Court set aside judgment of High Court and remanded case to Consolidation Officer to examine" entire controversy in the light of revenue laws after affording proper opportunity of hearing to parties.

Nawab v. Ghulab and 4 others 2004 SCMR 1833; Ghulam Qadir v. Member, Board of Revenue, West Pakistan, Lahore and 4 others 1970 SCMR 292; Ahmad and others .v. Karam Hussain and another 1986 SCMR 1384; Sardara and 4 others v. Province of the Punjab through Collector, District Jhang and 17 others 2000 CLC 1752 and Farman Ali and 7 others v. Khani Aman and 400 others PLD 2005 Pesh. 186 rel.

Bashir Ahmad, Advocate Supreme Court for Appellants.

Kokab Iqbal, Advocate Supreme Court/Advocate-on-Record for Respondents.

Date of hearing: 15th March, 2007.

2007 S C M R 1269

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Syed Jamshed Ali, JJ

MUHAMMAD RAMZAN----Petitioner

Versus

KHADIM HUSSAIN----Respondent

Civil Petition No.1239/L of 2004, decided on 19th July, 2006.

(On appeal from the judgment/order, dated 9-2-2004 passed by the Lahore High Court, Lahore, in Civil Revision No.1763 of 2001).

Civil Procedure Code (V of 1908)---

----O. XVII, R.3---Order of Duty Judge adjourning proceedings for plaintiff's evidence in rebuttal while Presiding Officer of Court was on leave---Non-production of evidence by plaintiff on adjourned date and closing of his right of defence---Validity---Such order which was composed by Reader of Court and not by the Duty Judge himself, being a routine order could not entail penal provisions of O.XVII, R.3, C.P.C.---Impugned order was set aside in circumstances.

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

Nemo for Respondents.

Date of hearing: 19th July, 2006.

2007 S C M R 1271

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

Messrs IRISMA INTERNATIONAL, KARACHI and 3 others----Petitioners

Versus

UNITED BANK LIMITED, KARACHI and another----Respondents

Civil Petition No.64-K of 2006, decided on 17th November, 2006.

(On appeal from the judgment of High Court of Sindh, dated 13-12-2005, passed in Appeal No.6 of 2005).

Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997)---

----S. 18---Civil Procedure Code (V of 1908), O.XXI, R.65---Constitution of Pakistan (1973), Art. 185 (3)---Execution of decree---Sale of property---Matching bid---Entitlement of judgment-debtors--After getting the property auctioned, Banking Court gave three days time to judgment-debtors to match the highest bid---Instead of judgment-debtors, a third party on their behalf offered price higher than that of the highest bidder---Banking Court confirmed the sale in favour of auction purchaser---Plea raised by judgment-debtors was that confirmation of sale in favour of auction purchaser was in violation of O.XXI, R.65, C.P.C.---Validity---Procedure provided under O.XXI, R.65, C.P.C. might not be strictly applicable in respect of execution of a decree passed by Banking Court in preference to the procedure provided under S.18 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, which was a special law---Provisions of S.18 of Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, having overriding effect, had to be essentially followed by Banking Court for the purpose of execution of decree, except in the matter which was not covered by the special provision---Bid offered by a third person would have no legal effect as he had no locus standi to participate in the matching bid---Judgment-debtors, on the basis of matching bid offered by a stranger to the proceedings, could not claim first right of purchase and maintain appeal before High Court or Supreme Court---Leave to appeal was refused.

Mohib Textile Mills Ltd. v. National Bank of Pakistan 2005 SCMR 1237 and Muhammad Ikhlaq Memon v. Zakaria Ghani PLD 2005 SC 819 ref.

Muhammad Sharif, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Petitioners.

Azizur Rehman, Advocate Supreme Court and A.A. Siddiqui, Advocate-on-Record for Respondent No.1.

Rahid A. Rizvi, Advocate Supreme Court and A. Aziz Khan, Advocate-on-Record for Respondent No.2.

Date of hearing: 17th November, 2006.

2007 S C M R 1275

[Supreme Court of Pakistan]

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

MUHAMMAD ZAHEER AHMAD----Appellant

Versus

TARIQ MAHMOOD and another----Respondents

Civil Appeal No.1320 of 2001, decided on 13th September, 2006.

(On appeal from the judgment, dated 20-12-2001 passed by the Lahore High Court, Lahore in Regular Second Appeal No.201 of 1987).

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

----S. 15---Constitution of Pakistan, (1973), Art.185(3)---Pre-emption suit---Alienation of land through gift deed---Burden of proof---Scope---Plaintiff/appellant filed suit against defendants/respondents regarding suit-land which was gifted away to the latter by donor vide registered gift deed---Plaintiff alleged in his suit that transaction was sale in disguise of gift which was purported to damage his pre-emption right---Trial Court, while holding transaction in question as sale, decreed the suit---First Appellate Court affirmed the finding of Trial Court---High Court took contrary view and non-suited the pre-emptor by holding that transaction was a genuine gift, hence not pre-emptible---Validity---Such pre-emption suits against transaction purporting to be a gift, burden squarely lay on pre-emptor to prove that it was a sale---Amount of consideration either paid or partly paid or promised to be paid, striking of bargain and fixation of consideration were all questions of fact that led to completion of sale---No evidence having been produced by pre-emptor to prove above questions of fact, there was no occasion at all for first two Courts to hold transaction a sale instead of gift---Factum of gift had been challenged on grounds of attending circumstances which were of presumptive nature---Bringing into consideration such circumstances amounted to placing burden on defendant/vendee to prove the gift which was unwarranted as pre-emptor did not make an effort even to shift the burden to defendant---Gift was to be genuine even if made to avoid pre-emption---Valid grounds for making gift were available in evidence, as donor was unmarried, issueless person with no parents, brothers and sisters; defendants had rendered services to plaintiff and had taken care of him and also both donor and defendants/donees belonged to Shia sect---Error or defect discovered in concurrent findings being of substantial character pertaining to procedure provided by law, therefore, High Court could interfere with the same---Appeal was dismissed.

Madan Gopal's case PLD 1969 SC 617 and Mst. Bibi Jan's case PLD 1975 SC 295 rel.

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

----S. 15---Pre-emption suit---Alienation of property by way of gift---Property gifted .away to ward off pre-emption suit---Permissibility---Alienation of property by way of gift in order to ward off any pre-emption suit was hardly illegal or irregular because a device to avoid pre-emption was permissible, provided it was not a disguise---Gift was to be genuine even if made to avoid pre-emption.

(c) Islamic law---

----Gift---Valid gift---Alienation of property by way of gift in order to ward off any pre-emption suit was hardly illegal or irregular because a device to avoid pre-emption was permissible, provided it was not a disguise---Gift was to be genuine even if made to avoid pre-emption.

Gulzarin Kiani, Senior Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Appellant.

Ch. Ghulam Hussain, Advocate Supreme Court for Respondents.

Date of hearing: 13th September, 2006.

2007 S C M R 1278

[Supreme Court of Pakistan]

Before Iftikhar Muhammad Chaudhry, CJ, Mian Shakirullah Jan and Saiyed Saeed Ashhad, JJ

Messrs ARFEEN INTERNATIONAL (PVT.) LTD.----Appellant

Versus

COLLECTOR CUSTOMS (APPRAISEMENT) DRYPORT, LAHORE and others----Respondents

Civil Appeal No.891 of 2003, decided on 8th February, 2007.

(On appeal from the judgment dated 27-2-2003 passed by Lahore High Court in Customs Appeal No.337 of 2001):

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

----Ss. 2(aa), 207, 208 & 209---"Indentor appointed by principal through contract" and "Licensed Agent appointed by Customs Department"---Distinction---Liability of Indentor for violation of provisions of Customs Act, 1969 or rules framed thereunder---Scope---Concept of Indentor not existing in Customs Act, 1969---Principal not bound to appoint Indentor under Ss.207, 208 and 209 of Customs Act, 1969---Office of Indentor being distinct and different from office of Licensed Agent---Business of Licensed Agent would be to interact on behalf of principal with authority of Customs Department---Indentor had no concern with internal business of Customs Department nor legally he could have an access to its affairs---Indentor, if found involved in such violation, could be held responsible for same in his private capacity, but not as an Indentor---Indentor for non-discharging his duty properly could not be penalized under any provisions of Customs Act, 1969---Indentor would not be answerable to any one except to his principal---Papers of consignment received from principal would not be clarified by Indentor for same being the job of Licensed Agent---Principles.

Alliance Insurance Co. Ltd. v. Burjorjee & Co: Karachi and others PLD 1977 Kar. 765 ref.

(b) Administration of justice---

----One cannot be penalized under a particular provision of law, unless established that his action falls within mischief of such provision of law.

Haji Abdul Razzaq v. Pakistan through Secretary, M/O Finance and others PLD 1974 SC 5 ref.

Abdul Hafeez Lakho, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellant.

A. Karim Malik, Senior Advocate Supreme Court and Mumtaz Ahmad Sheikh, Member (L) C.B.R. for Respondents.

2007 S C M R 1285

[Supreme Court of Pakistan]

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

QASIM ALI SHAH----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.143 of 2000, decided on 7th August, 2006.

(On appeal from the judgment, dated 19-3-1999 passed by the Lahore High Court, Lahore in Criminal Appeal No.292 of 1997).

Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Ocular account corroborated by medical evidence---Non­-recovery of blood from spot of occurrence---Effect---Allegation against accused/appellant was that he committed murder of deceased with .12 bore small shotgun---Trial Court convicted and sentenced accused to life imprisonment which was upheld by High Court---Accused contended that there was discrepancy in testimony of eye-witness as to time of incident; that no blood was recovered from spot of occurrence and that crime weapon was not recovered from the accused---Validity---Post-mortem report had supported the time of occurrence as disclosed by complainant---Nature of injuries' showed that they caused internal bleeding and there was likelihood that clothes were stained with blood and blood did not drop on earth---Such injured person, when immediately lifted, possibility of blood dropping on earth was mostly excluded---Non-recovery of crime weapon from accused was immaterial because weapon was not to be recovered from accused who was arrested after abscondence of two years---Grievance among step-brothers as admitted by accused, reflected an existence of motive---Prosecution had proved its case against accused beyond doubt---Appeal was dismissed.

M. Zaman Bhatti, Advocate Supreme Court for Advocate-General, Punjab for Appellant.

Dil Muhammad Tarar, Advocate Supreme Court for the State.

Date of hearing: 7th August, 2006.

2007 SCMR 1288

[Shariat Appellate Jurisdiction]

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

RASHID AHMED alias PAPPU----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No. l (S) of 2004, decided on 23rd December, 2005.

(On appeal from the judgment, dated 16-7-2003 passed by the Federal Shariat Court in Jail Criminal Appeal No.302/L of 2002).

Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Arts. 3 & 4---Constitution of Pakistan (1973), Art.203-F---Reappraisal of evidence---Benefit of doubt---Inimical and interested witnesses---Allegation against accused/appellant was that pursuant to tip- police party, after getting search warrants from Area Magistrate, conducted raid and arrested accused who led to recovery of 2500 grams of heroin---Federal Shariat Court maintained conviction and sentence passed on accused by Trial Court---Accused contended that prior to registration of case against him a criminal case under Ss.452, 341, 342, 384, 148 & 149; P.P.C. was got registered against police including S.H.O. of concerned police station at the direction of High Court; that accused played an active role in registration of case against police and he was cited as witness therein and that habeas corpus petition had been filed in High Court on behalf of accused and in order to justify his illegal detention, police falsely involved him in the present case and also in some other cases of identical nature---Validity---Discrepant prosecution evidence had been furnished against accused by inimical and interested witnesses---Documentary evidence transpired that accused was harassed to such an extent that he was compelled to file suit for damages and writ petition through his wife for his release from illegal detention of police---Police was so much poised against accused that he was involved in so many other cases---Accused had continuously insisted on investigation of case against police by some other investigation agency which fact further aggravated grievance of police against him---Prosecution did not prove case against accused beyond reasonable doubt---Accused was entitled to acquittal on ground of benefit of doubt---Appeal was accepted.

Dr. Babar Awan, Advocate Supreme Court for Appellant.

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

Date of hearing: 23rd December, 2005.

2007 S C M R 1292

[Supreme Court of Pakistan]

Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ

SABIR alias SABRI----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.375 of 2905, decided on 29th June, 2006.

(On appeal from the judgment, dated 25-7-2005 of the Lahore High Court, Lahore, passed in Criminal Appeal No.1198 of 1999).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Interested witness---Scope-Allegation against accused petitioner was that he caused murder of deceased by fire-arm shots---Trial Court convicted accused and sentenced him to death---High Court upheld the finding of Trial Court--Validity---Incident took place in day time, F.I.R. was promptly lodged, and specific role was attributed to accused---Statements of complainant and eye-witness found full corroboration from medical evidence, motive and unexplained abscondence of accused---Complainant and eye-witness were not to be labelled as "interested witnesses" for the simple reason that they had no motive, rancour or animosity to get accused involved in heinous offence---Offence was committed in barbaric manner which did not call for leniency---Prosecution established guilt of accused beyond' any shadow of doubt---Petition for leave to appeal was dismissed.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.

Ch. Munir Sadiq, Advocate Supreme Court for the State.

Date of hearing: 29th June, 2006.

2007 S C M R 1295

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Falak Sher, JJ

ABDUL AZIZ----Petitioner

Versus

Malik AMAN----Respondent

Civil Review Petition No.231 of 2006, decided on 23rd May, 2007.

(On review from the judgment, dated 6-9-2006 of this Court passed in C.P. No.609 of 2006).

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

----S. 13---Constitution of Pakistan (1973), Art.188---Review of Supreme Court judgment---Petitioner had mainly agitated the ground already dealt with in the impugned order and had further relied upon the judgment reported as Mian Pir Muhammad and another v. Faqir Muhammad PLD 2007 SC 302, whereby according to the petitioner, Supreme Court had approved the dictum laid down in case of Haji Muhammad Saleem v. Khuda Bukhsh PLD 2003 SC 315 and Fazal Subhan and others v. Mst. Sahib Jamila and others PLD 2005 SC 977 wherein date, place and time in the plaint were considered necessary to establish the performance of Talb-i-Muwathibat and also the date of issuance of notice of Talb-i-Ishhad in terms of S.13, Punjab Pre-emption Act, 1991---Validity--Held, impugned judgment was passed on 6-9-2006 whereas the judgment referred by a larger Bench was delivered on 12-12-2006, which being prospective in nature could not be applied with retrospective effect---Review petition was rejected.

Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302; Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 and Fazal Subhan and 11 others v. Mst. Sahib Jamila and others PLD 2005 SC 977 ref.

Ch. Imtiaz Ahmad, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Petitioner.

Gul Zarin Kiyani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent.

2007 S C M R 1296

[Supreme Court of Pakistan]

Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ

UMAR HAYAT----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.38 of 2005, decided on 8th May, 2006.

(On appeal from the judgment, dated 13-1-2005 passed by Lahore High Court, Lahore in Criminal Appeal No.376 of 2001).

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Joint liability of accused and co-accused---Rule of sifting grain from chaff---Applicability---Scope---Allegation against accused/petitioner was that he along with co-accused committed murder of deceased with fire-arm shots---Trial Court, while acquitting co-accused, convicted and sentenced accused to death---Appeal filed by. accused against the finding of Trial Court was dismissed by High Court---Accused mainly contended; that prosecution evidence was discrepant; that it was an unseen occurrence which took place in the night time; that prosecution witnesses were interested witnesses and that deceased sustained injuries as a result of firing of both the accused, therefore, possibility of deceased's sustaining fatal injury at the hands of acquitted co-accused was not to be ruled out and that case of accused/petitioner was at par with co-accused hence he deserved same benefit as extended to acquitted co-accused---Validity---Presence of witnesses with deceased in his house was not to be doubted to contend that it was an unseen occurrence---Deposition of eye-witnesses was quite consistent, truthful and confidence-inspiring and the same was sufficient to sustain conviction of accused---Features of case against accused/petitioner were distinguishable from those of co-accused because the latter was attributed general role of causing injuries to deceased but accused was assigned to have caused fire-arm injuries on the sensitive part of the body of deceased which proved fatal to his life---Prosecution proved case against accused by bringing direct evidence on record---Court,, in a case of joint liability, in the light of rule of sifting grain from chaff might give benefit of doubt to an accused but his acquittal might be relevant for determining the guilt of his co-accused---Prosecution had successfully proved charge against accused on the basis of direct evidence of natural witnesses duly supported by medical evidence---Petition for leave to appeal was dismissed.

(b) Maxim---

---Maxim "Falsus in uno falsus in Omnibus"---Court was not obliged to acquit all accused on the basis of rule of falsus in uno falsus in omni bus which was not followed by Courts in Pakistan.

Sardar M. Ghazi, Advocate Supreme Court for Petitioner.

Muhammad Zaman Bhatti, Advocate Supreme Court for the State.

Date of hearing: 8th May, 2006.

2007 S C M R 1300

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Javed Iqbal, Abdul Hameed Dogar, Mian Shakirullah Jan and Saiyed Saeed Ashhad, JJ

Mir GHIAS KHAN and another----Appellants

Versus

CHIEF EXECUTIVE/MINISTER KASHMIR AFFAIRS/NORTHERN AREAS DIVISION, ISLAMABAD and others----Respondents

Civil Appeals Nos.1181 and'1182 of 2002, decided on 2nd April, 2007.

(On appeal from the judgment, dated 18-12-2000 of the Federal Service Tribunal, Islamabad in Appeals Nos.563 and 746-R/C.S. of 2000).

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

----S. 4---Civil Servants Act (LXXI of 1973), S.2(1)(b)---Constitution of Pakistan, 1973, Art.212(3)---Appeal to Service Tribunal---Territorial jurisdiction---Employee in service of Northern Areas---Promotion--Direction of Peshawar High Court, in exercise of constitutional jurisdiction to department to consider employee for promotion---Non­consideration of employee for promotion---Dismissal of appeal by Service Tribunal for lacking territorial jurisdiction---Supreme Court granted leave to appeal to consider question, whether status of petitioner was that of employee of Federal Government and would fall within definition of "civil servant" in terms of S.2(1)(b) of Civil Servants Act, 1973 to be governed by, service laws in the Federation and could avail remedy of appeal before Tribunal or he was member of establishment of Northern Areas am being not employee of Federal Government should approach Civil Court having territorial jurisdiction.

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

----S. 4---Civil Servants Act (LXXI of 1973), S.2(1)(b)---Seniority---Employee in service (BS-17) of Northern Areas---Appeal to Service Tribunal---Territorial jurisdiction---Scope---Matter pertaining to terms and conditions of such employee had been dealt with earlier by High Court and Supreme Court in exercise of constitutional jurisdiction but Chief Executive and Secretary, Kashmir Affairs and Northern Areas and Federal Secretary, Establishment, had not raised objection regarding territorial jurisdiction---Department in parawise comments before Supreme Court had also not raised plea regarding territorial jurisdiction of Tribunal---Disciplinary proceedings against such employee had been initiated by department under Government Servants (Efficiency and Discipline) Rules, 1973---Appointments to such posts were to be made by Chief Executive under Civil Servants Act, 1973 and Civil Servant (Appointment, Promotion and Transfer) Rules, 1973---Held, such employee was `civil servant' within meaning of S.2(1)(b) of Civil Servants Act, 1973 and Tribunal had jurisdiction to entertain and decide appeal relating to terms and conditions of his service.

Fazal Ellahi Siddiqui, Advocate Supreme Court for Appellant (in Civil Appeal No.1181 of 2002).

M. Bilal, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Appellant (in C.A.. No.1182 of 2002).

Ms. Naheeda Mehboob Ellahi, D.A.-G., Abdul Karim Khan Kundi, Advocate Supreme Court, Muhammad Munir Peracha, Advocate Supreme Court, Raja Muhammad Asghar Khan, Advocate Supreme Court, Mehr Khan Malik, Advocate-on-Record, Arshad Ali Ch. Advocate-on-Record, Ch. Muhammad Akram, Advocate-on-Record and Syed Zafar Abbas Naqvi, Advocate-on-Record for Respondents.

Date of hearing: 14th December, 2006.

2007 SCMR 1307

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

LIAQAT ALI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.85 of 2003, decided on 4th January, 2006.

(On appeal from the judgment, dated 14-3-2002 passed by Lahore High Court, Rawalpindi Bench in Criminal Appeal No.269r of 2000).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Circumstantial evidence---Benefit of doubt---Entitlement of accused---Scope---Allegation against accused/appellant was that he had taken deceased from his house and when deceased did not return then during search his dead body was found in a deserted house---Trial Court convicted and sentenced accused to life imprisonment whereas two co-accused were acquitted---High Court upheld the finding of Trial Court---Validity---No direct or ocular evidence was available against accused and entire case against him rested on circumstantial evidence---Circumstances though at the most corroborated version of complainant qua the murder of deceased but the same did not connect accused with crime--Circumstantial evidence, that is, last seen evidence and weak motive, suffered from many infirmities and it was not worth credence---Evidence showed that some articles belonging to a lady were found in the house where dead body of deceased was lying and according to medical evidence some scratches of nail were found on the . body under one of the injuries, which led to fact that murder had taken place in mysterious manner---High Court, instead of drawing inference in favour of accused on principle that accused was entitled to any doubt arising from prosecution case, had drawn inference in favour of prosecution and against accused; which was against principles of administration of criminal justice---Two co-accused had been acquitted by Trial Court on evidence almost of the same standard as against accused---Prosecution, in circumstances, had failed to prove case against accused beyond reasonable doubt---Appeal was allowed.

M. Javed Aziz Sindhu, Advocate Supreme Court for Appellant.

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

Date of hearing; 4th January, 2006.

2007 S C M R 1310

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Ghulam Rabbani, JJ

MEHBOOB AHMAD----Petitioner

Versus

SPECIAL JUDGE, ANTI-TERRORISM COURT, FAISALABAD and others----Respondents

Criminal Petition No.1942/L of 2006, decided on 1st November, 2006.

(On appeal from the judgment/order, dated 5-10-2006 of the Lahore High Court, Lahore, passed in Writ Petition No.8754 of 2006).

Penal Code (XLV of 1860)---

----Ss. 365-A/343/384/148/149/34---Constitution of Pakistan (1973), Art.185(3)---High Court after going through the material placed before it had reached the conclusion that, prima facie, offence under S.365-A, P.P.C. was attracted in the case---Anti-Terrorism Court, therefore, had justifiably assumed jurisdiction---Findings recorded by High Court did not need to be substituted by Supreme Court in the absence of any compelling reason---Impugned judgment did not suffer from any legal infirmity---Leave to appeal was refused accordingly.

M.A. Zafar, Advocate Supreme Court and Ch. Anwar Ahmad Khan, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing; 1st November, 2006.

2007 S C M R 1311

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Syed Jamshed Ali, JJ

DEFENCE HOUSING AUTHORITY, LAHORE----Petitioner

Versus

MUHAMMAD NAEEM-UL-KAREEM and others----Respondents

Civil Petition No.1609/L of 2004, decided on 24th July, 2006.

(On appeal from the judgment/order, dated 12-3-2004 passed by the Lahore High Court, Lahore in Writ Petition 6092 of 2002).

Cooperative Societies Act (VII of 1925)---

----S.70---Defence Housing Authority Lahore Ordinance (LI of 1999), S.18---Civil Procedure Code (V of 1908), O.VII, R.11---Constitution of Pakistan (1973), Art. 185 (3)---Rejection of plaint---Non-filing of notice under S.70 of Cooperative Societies Act, 1925---Contention of Housing Authority was that suit filed by plaintiffs had been rejected for non-issuance of prior notice under S.70 of Cooperative Societies Act, 1925---Plea raised by plaintiffs was that Housing Authority was no longer a cooperative society, therefore, provisions of Cooperative Societies Act, 1925, had ceased to apply during the pendency of the suit---Plaintiffs further contended that provisions' of S.70 of Cooperative Societies Act, 1925, were not attracted to the facts of the suit filed by them--Leave to appeal was granted by Supreme Court to consider the contentions of both the parties.

Lahore Cantt. Cooperative Housing Society Limited v. Messrs Builders and Developers (Pvt.) Ltd. and others PLD 2002 SC 660 ref.

Tariq Masood, Advocate Supreme Court for Petitioner.

Ch. Hafeez Ahmed, Advocate Supreme Court for Respondent No.1.

2007 SCMR 1313

[Supreme Court of Pakistan]

Present: Javed Iqbal, Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

FEDERATION OF PAKISTAN through Establishment Division----Appellant

Versus

Brig. (Rtd.) ZULFIQAR AHMAD KHAN and others----Respondents

Civil Appeal No.1084 of 2002, decided on 26th March, 2007.

(On appeal from the judgment, dated 12-4-2001 passed by Lahore High Court, Rawalpindi Bench in Writ Petition No.8 of 2001).

Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)---

----Ss. 9 & 32---Constitution of Pakistan (1973), Arts.199 & 212---Retirement from civil service---Non-grafting of pensionary benefits to retired Army Officer for non-completing tenure of 10 years in civil service---Complaint to Ombudsman, acceptance of---Representation to the President against order of Ombudsman, acceptance of---Constitutional petition against order of the President---Petitioner's plea that he was not heard before passing of order by the President---Department's plea that such matter pertained to terms and conditions of service, thus, complaint to Mohtasib and constitutional petition before High Court were not maintainable---Acceptance of constitutional petition by High Court---Validity---Petitioner was civil. servant and such matter purely related to terms and conditions of his service---Proper forum for redressal of such grievance was Service Tribunal and not the Ombudsman---Ombudsman had wrongly entertained and accepted complaint of petitioner---Order of Ombudsman on account of lack of jurisdiction was of no legal consequence and could be ignored by High Court---High Court had no jurisdiction to entertain and accept petition---Order of the President setting aside such order of Ombudsman could not be set aside on account of any flaw which might tie of not giving opportunity of hearing to petitioner---Supreme Court set aside judgment of High Court in circumstances.

Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54 and Province of Punjab, through Secretary Education v. Shamshad Begum 2004 PLC (C.S.) 1027 rel.

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

Ch. Afrasiab Khan; Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 26th March, 2007.

2007 S C M R 1316

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Ch. Ijaz Ahmed, JJ

ABDUL KARIM and others----Appellants

Versus

LAHORE CANTT. COOPERATIVE HOUSING SOCIETY LTD. and others----Respondents

Civil Appeal No.1029 of 2003 out of Civil Petition No.1055-L of 2000, decided on 21st September, 2006.

(On appeal from the judgment, dated 2-3-2000 passed by the Lahore High Court, Lahore in Writ Petition No.16741 of 1999).

Land Acquisition Act (I of 1894)---

----S. 17(4)---Acquisition of land---Non-assailing of notification under S.17(4) of Land Acquisition Act, 1894---Property in question was acquired, award was announced and mutation in favour of Society was attested in presence of landowners---Mutation of acquisition was assailed by landowners, which was dismissed by Revenue authorities---Validity---Landowners never challenged acquisition of land and mutation was only to give effect to the award after possession had been delivered---By mere challenging mutation, landowners would not get anything unless land acquisition proceedings and subsequent award were not challenged---Notification under S.17(4) of Land Acquisition Act, 1894, would be deemed to be set aside to the extent of those landowners who had challenged it---High Court had rightly dismissed the petition filed by landowners and had advanced cogent reasons while repelling their contentions---Mere challenge to mutation attested in pursuance of land acquisition proceedings and on the basis of award would be of no consequence---Society had deposited compensation amount and had not withdrawn the whole compensation but had withdrawn only to the extent of the property in respect of which notification under S.17(4) of Land Acquisition Act, 1894 had been cancelled.

Peoples Cooperative Housing Society Ltd. Lahore v. Collector, Lahore District and 4 others 1979 CLC 180 ref.

Maqbool Elahi Malik, Advocate Supreme Court for Appellants.

Tariq Masood Advocate Supreme Court for Respondents.

Khushi Muhammad Tazir, Director Estate, Lahore for Respondents.

Date of hearing: 21st September, 2006.

2007 SCMR 1318

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

WEST PAKISTAN TANKS TERMINAL (PVT.) LTD.----Petitioner

Versus

COLLECTOR (APPRAISEMENT)----Respondent

C.P.L.A. No.1098 of 2006, decided on 21st February, 2007.

(On appeal from judgment, dated 19-9-2006 in Special Customs Reference Application No.152 of 2005 passed by the High Court of Sindh, Karachi)

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

----S. 30---Illegal removal of goods from bonded warehouse for home consumption---Duty and charges, levy of---Determination---Such goods would be charged at highest rate of duty prevalent either on date of in-bonding of goods or date of detection of unlawful removal or date of filing of ex-bonded Bill of Entry after detection of illegal removal or date on which evaded duty and charges were actually deposited---Principles.

Federation of Pakistan v. Khurshid Spinning Mills 1998 SCMR 2173 and Collector of Customs v. Ravi Spinning Ltd. 1999 SCMR 412 rel.

(b) Administration of justice---

----No one can be allowed to take advantage of his wrong act or fraud played by him.

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

---S. 30, proviso [as inserted by Finance Act (II of 2004)]---Proviso to, S.30 of Customs Act, 1969---Effect---Said proviso recognized prevalent practice adopted by customs authorities before its insertion and would not create any additional liability---Party found indulging in unlawful removal of goods with a view to evade payment of duty would not be entitled to take shelter behind the plea that such proviso would not apply retrospectively---Principles.

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

---Ss. 30 & 32---Illegal removal of goods from bonded warehouse---Payment of evaded duty and charges after importer acknowledged in writing commission of illegal act---Importer's plea that notice under S.32 of Customs Act, 1969 issued to him was beyond prescribed period---Validity---Importer would be legally estopped from challenging validity of such notice and claim refund of such amounts.

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

----Ss. 19 & 20---Customs Act (IV of 1969), S. 30---Acknowledgment in writing of time-barred debt/amount would revive period of limitation for its recovery.

(f) Limitation---

----Time-barred claim for money, recovery or adjustment of---Effect---Such recovery/adjustment would not be unlawful---Debtor/obligor could not claim refund of such money on plea of limitation---Principles.

Under the law, where a claim is barred by time, but for any reason it stands recovered or adjusted, then there exists no occasion for the debtor or obligor to seek refund of such recovered or adjusted amount on the plea of limitation. The law of Limitation never extinguishes a right in a time-barred claim. Only remedy for seeking its recovery is barred. Once the time-barred claim stands recovered or adjusted even after the period of limitation has expired such recovery or adjustment cannot be said to be unlawful and the debtor or obligor cannot seek refund of such amount on the plea of limitation.

The spirit behind the law of limitation is that lapse of time does not extinguish the right, but it only bars the remedy.

(g) Contract Act (IX of 1872)---

----S. 60---Amount paid by debtor without specifying its adjustment towards any particular debt---Effect---Creditor would be entitled to adjust such amount towards any particular debt, even though it be barred by time---Principles.

(h) Constitution of Pakistan (1973)---

----Arts. 185(3) & 199---Party not approaching High Court and Supreme Court with clean hands---Effect---Such party would not be entitled to discretionary and equitable relief---Party seeking equity must have equities in his favour---Illustration.

Ali Sibtain Fazli, Advocate Supreme Court for Petitioner. M. Bilal, Senior Advocate Supreme Court for Respondent.

Mumtaz Ahmad Sheikh, Member (Legal), Central Board of Revenue for Respondents.

Date of hearing: 21st February, 2007.

2007 S C M R 1326

[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(b)/324/337-F(ii)---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Concurrent findings of guilt by two Courts---Trial Court convicted accused and awarded him death sentence for brutally murdering deceased, which conviction and sentence was maintained by High Court---Validity---Supreme Court did not find any reason to interfere with concurrent findings with regard to guilt of accused---Eye-witness account furnished by injured and other prosecution witnesses was found to be trustworthy by Trial Court as well as High Court---No inherent defect or material lacuna was found in the evidence of prosecution witnesses whose presence at the site had been established beyond any reasonable shadow of doubt---Supreme Court declined to interfere with conviction and sentence as it was 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.

2007 S C M R 1328

[Supreme Court of Pakistan]

Present: Javed Iqbal, Actg. C.J. Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

Civil Petition No.193 of 2007

CAPITAL DEVELOPMENT AUTHORITY through Chairman and another----Petitioners

Versus

Mrs. SHAHEEN FAROOQ and another----Respondents

(On appeal from judgment dated 20-12-2006 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Writ Petition No.1325 of 2006).

Civil Petition No.194 of 2007

CAPITAL DEVELOPMENT AUTHORITY through Chairman and another---Petitioners

Versus

IQBAL and another---Respondents

(On appeal from judgment dated 20-12-2006 passed by the Lahore High Court, Rawalpindi "Bench, Rawalpindi in Writ Petition No.1326 of 2006).

Civil Petitions Nos.193 and 194 of 2007, decided on 2nd April, 2007.

(a) Capital Development Authority Ordinance (XXIII of 1960)---

----S. 51---Capital Development Authority Conduct of Business Regulation, 1985, Sched.II---General Clauses Act (X of 1897), S.24-A---Verbal order of Chairman of the Authority cancelling allotment of plot--Validity---Only Chairman had powers to allot and cancel plots, who could not delegate such powers to other officer of the Authority---All orders passed and acts performed by State/public functionaries adversely affecting anyone must be in writing---Verbal order of Chairman would have no sanctity in law for its being alien to process of law and courts.

C.D.A. v. Zahid Iqbal PLD 2004 SC 99 rel.

(b) Administration of justice---

---Verbal order of public functionary---Validity---Such order would have no sanctity in law for same being alien to process of law and courts.

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

----S. 24-A---Verbal order of public functionary---Validity---Such order would have no sanctity in law for same being alien to process of law and courts---All orders passed and acts performed by State/Pubic functionaries adversely affecting anyone must be in writing.

Arif Chaudhry, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Petitioners.

Waseem Sajjad, Senior Advocate Supreme Court for Respondent No.1 (in C.P. No.193 of 2007).

Abdul Hafeez Pirzada, senior Advocate Supreme Court for Respondent No.1 (in C.P. No.194 of 2007).

Nemo for respondent No.2.

Date of hearing; 14th March, 2007.

2007 S C M R 1332

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

MUHAMMAD RAFIQUE and others----Appellants

Versus

TUFAIL MUHAMMAD----Respondent

Civil Appeal No.342 of 2002 in C.P.L.A. No.25-L of 2002, decided on 18th September, 2006.

(On appeal from the order, dated 15-10-2001 of the Lahore High Court passed in Civil Revision No.304 of 1991).

Specific Relief Act (I of 1877)---

----S. 12---Colonization of Government Lands (Punjab) Act (IV of 1912), S.19---Land Reforms Regulations, 1972 (M.L.R. 115), para.24---Specific performance of agreement to sell---Concurrent findings of fact by the Courts below---Execution of agreement to sell was not denied by defendants but suit was dismissed by Trial Court on the ground that it was violative of provisions of paragraph 24 of Land Reforms Regulations, 1972 (M.L.R. 115) and S.19 of Colonization of Government Lands (Punjab) Act, 1912---Lower Appellate Court allowed appeal against judgment and decree passed by Trial Court, resultantly the suit was decreed in favour of plaintiff---Judgment and decree passed by Lower Appellate Court was maintained by High Court---Validity---Defendants did not specifically plead in their written statement that the agreement was either not thumb-marked by them or that the same was obtained through fraud or forgery---Defendants merely stated that the agreement to sell was hit by the provisions of Land Reforms Regulation, 1972 (M.L.R. 115) and S.19 of Colonization of Government Lands (Punjab) Act, 1912---Concurrent findings of fact recorded by High Court and Courts below, after appreciation of evidence of parties, were unexceptionable id absence of any misreading or non-reading of material evidence on record---Judgment of High Court was plainly correct which did not suffer from any defect or other legal infirmity so as to warrant interference by Supreme Court---Appeal was dismissed.

Malik Noor Muhammad Awan, Advocate Supreme Court for Appellants.

M. Zaman Bhatti, Advocate Supreme Court and Ch. Arshad Ali, Advocate-on-Record for Respondent.

Date of hearing: 18th September, 2006.

2007 S C M R 1334

[Supreme Court of Pakistan]

Present: Javed Iqbal and Abdul Hameed Dogar, JJ

ABDUL AZIZ----Petitioner

Versus

SECRETARY, MINISTRY OF INTERIOR AND NARCOTICS CONTROL, ISLAMABAD and another----Respondents

Civil Petition No.2399 of 2004, decided on 11th December, 2006.

(On appeal from the order, dated 24-9-2004 of the Federal Service Tribunal, Islamabad, in Appeal No.798(R)(CS) of 2002).

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

----S. 3---Government Servants (Conduct) Rules, 1964, R.10---Dismissal from service---Charge of involvement of civil servant in interest bearing lending business---Proof---Widow relative of civil servant used to invest her savings on profit---Civil servant had stood surety for loan taken by his colleagues from widow under agreement---Civil servant had earlier approached Wafaqi Mohtasib against his non-appointment as A.S.-I., over which Department had become hostile and biased towards him---Civil servant was not beneficiary of such loan---Merely a person who stood surety for taking loan by someone would not constitute an offence of misconduct---Supreme Court directed reinstatement of civil servant with all back-benefits.

Dr. Babar Awan, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.

Raja Muhammad Irshad,' Dy.A.-G., Col. Akhtar Abbas, Joint Director, A.N.F. and Mukhtar Awan, D.S. A.N.F. for Respondents.

2007 SCMR 1338

[Supreme Court of Pakistan]

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

SHAHID GHAFOOR----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.469 of 2005, decided on 5th July, 2006.

(On appeal from the judgment, dated 10-11-2005 of the Lahore High Court, Lahore, passed in Criminal Appeal No.824 of 2000/M.R. No.340 of 2000).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Day light occurrence---Single shot---Defence plea---Trial Court convicted and awarded death sentence to the accused, which was maintained by High Court---Accused did not question conviction but sought reduction in sentence on the ground that it was deceased who took out carbine and during scuffle fire was shot accidentally which hit the deceased on his temple-Validity-Kea taken by accused did not have support from any evidence either from defence or even by inference from prosecution---Supreme Court declined to interfere with the conviction and sentence passed by High Court---Leave to appeal was refused.

Muhammad Arshad and 2 others v. State PLD 1996 SC 122 distinguished.

Syed Muhammad Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCMR 427 rel.

M. Zaman Bhatti, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record (absent) for Petitioner.

M.A. Sheikh, Advocate Supreme Court for the State.

2007 S C M R 1341

[Supreme Court of Pakistan]

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

MUHAMMAD ARIF and others----Petitioners

Versus

TAUQEER AHMED and others----Respondents

Criminal Petition No.37 of 2003 and Jail Petition No.151 of 2004, decided on 6th June, 2006.

(On appeal from the judgment, dated 26-11-2002 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Criminal Appeal No.155 of 2000 and Murder Reference No.358 of 2000).

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

----S. 302/34---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---Accused had been acquitted by High Court essentially on the ground that although the motive which had allegedly led to the murder stood directed against him, yet he was burdened only with a "Lalkara", while the injuries caused on the body of the deceased stood attributed to co-accused---No exception could be taken to the acquittal earned by the accused---Leave to appeal was refused to the complainant accordingly.

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

----S. 302/34---Constitution of Pakistan (1973), Art.185(3)---Complainant party including the two eye-witnesses had no reason to have spared the co-accused against whom they had the real grouse and having falsely substituted him with an unconcerned person i.e. the present accused---Two crime-empties available at the place of occurrence were found by the Forensic Science Laboratory to have been fired from the weapon recovered at the instance of accused-'--Occurrence having taken place in broad daylight in a busy "Bazar" could not have gone un-witnessed, nor the culprit could have gone unidentified---Concurrent finding of guilt stood recorded against the accused who had shot the deceased dead---Contention that the accused was unrepresented in both the Courts below and the powers of attorney available on record were forged, had no substance---Accused had not taken any such plea before the Trial Court, Appellate Court or even in the petition before Supreme Court---Plea taken by accused through an affidavit submitted in Supreme Court, had also not been raised by him before the Trial Court, nor had he entered the witness-box under S.340(2), Cr.P.C.---Conviction and sentence of accused did not call for any interference---Leave to appeal was refused accordingly.

Zulfiqar Ahmad Bhutta, Advocate Supreme Court for Petitioner (in Cr.P. No.37 of 2003).

M. Zaman Bhatti, Advocate Supreme Court for Petitioner (in Jail Petition No.151 of 2004).

Arshad Ali Chaudhry, Advocate-on-Record for Respondent No.1 (in Criminal Petition No.37 of 2003).

Dil Muhammad Tarar, Advocate Supreme Court for the State (in both Petitions).

2007 S C M R 1344

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Hamid Ali Mirza, JJ

Mst. HASAN BANO----Petitioner

Versus

WALI-UR-REHMAN and 2 others----Respondents

Civil Petitions Nos.1446, 1447 and 1448 of 2000, decided on 10th April, 2002.

(On appeal from the judgment, dated 22-5-2000 of Peshawar High Court, Abbottabad Bench passed in Writ Petitions Nos.41, 42, and 43 of 2000 respectively).

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

----S. 13---Talb-e-Muwathibat---Such Talb not made by pre-emptor

herself, but through her husband---Husband not having implied or direct authority on the date when the Talb was made---Non-appearance of pre­emptor before Court to establish that she herself made such Talb---Held: basic requirement of such Talb had not been made in accordance with law---Suit was dismissed in circumstances.

Abdur Rashid Awan, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 10th April, 2002.

2007 SCMR 1346

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Hamid Ali Mirza, JJ

FAUJI FOUNDATION (HEADQUARTERS) through Manager Administration----Appellant

Versus

PUNJAB LABOUR APPELLATE TRIBUNAL and 2 others----Respondents

Civil Appeal No.1621 of 2005, decided on 13th March, 2007.

(On appeal from the judgment, dated 10-10-2003 passed by Lahore High, Rawalpindi Bench in Writ Petition No.2916 of 2000).

(a) Industrial Relations Ordinance (XXIII of 1969)---

----S. 2(ix)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(b)(1)---Charitable Endowments Act (VI of 1890), S.4---Fauji Foundation (a charitable organization registered under Charitable Endowments Act, 1890)---Whether or not such organization covered by definition of "establishment" in Industrial Relations Ordinance, 1969 and West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

(b) Industrial Relations Ordinance (XXIII of 1969)---

----S. 2(1)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(xxviii)---`Workman'--- Definition---Superintendent, designation of---Neither mere supervisory designation nor doing some manual work in supervisory capacity would bring a person in or out of the category of "workman"---Principles.

The expression "Superintendent" in plain words means a person, who exercises the power of superintending in supervisory jurisdiction with some authority or control in certain matters.

The expression "Superintendent" in general is used in a supervisory meanings and a person in such capacity by doing some manual work may not acquire the status of "workman" in terms of IRO, 1969 and Standing Orders Ordinance, 1968. The mere fact that a person in supervisory capacity was also doing some manual work is not sufficient to hold that he is a workman and similarly mere supervisory designation may not bring a person out of the category of "workman".

In public and private organizations, the managerial staff usually does the manual work and probably all persons in supervisory capacity in one way or the other do manual work in discharge of their duty, therefore, it may not be the true test to determine the status of a person, who undertakes any sort of manual work or perform duty in supervisory capacity involving some manual work as a workman.

Abdul Ghafoor v. Karachi Shipyard and Engineering Works Ltd. and others PLC 1987 Labour 697; Abdul Razzaq v. Ihsan Sons Ltd. 1992 SCMR 505; Rehmat Ali v. Security Papers Ltd. PLD 1982 Kar, 912; Pakistan Arab Refinery Ltd. v. Muhammad Rashid 1999 SCMR 373 and Mustehkum Cement Limited v. Abdul Rashid 1998 SCMR 644 ref.

Hotel International v. Bashir A. Malik PLD 1986 SC 103 rel.

(c) Industrial Relations Ordinance (XXIII of 1969)---

----S. 2(f)---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(xxviii)---`Workman'--- Question, whether a person is a "workman" or not---Such question being mixed question of law and facts must be decided in the light of facts of each case.

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

Tariq Mehmood, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondent No.3.

Date of hearing: 28th February, 2007.

2007 SCMR 1355

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Falak Sher and Raja Fayyaz Ahmad, JJ

CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB and others----Petitioners

Versus

MUHAMMAD ARSHAD KHAN NIAZI----Respondent

Civil Petition No.788-L of 2006, decided on 20th December, 2006.

(On appeal from the judgment, dated 28-2-2006 of the Punjab Service Tribunal, Lahore passed in Appeal No.2182 of 2005).

Civil Service---

----Promotion---Pendency of inquiry against civil servant---Selection Board deferred case of civil servant till finalization of inquiry--Promotion of junior officers on officiating basis in BS-19---Civil servant was exonerated from charges in inquiry, which lasted for 4/5 years, during which period he reached maximum stage of BS-19---Civil servant in such circumstances was entitled to pro forma promotion---Juniors to civil servant were allowed move-over to BS-20 and their pays were fixed at higher stage---Civil servant had been deprived of such benefits---Civil servant prevented to perform duties in higher post to which he was entitled---Civil servant had to be paid salary for higher post for the period he was not allowed to perform duties of such higher post---Department should have completed inquiry within prescribed period---Delay in concluding inquiry could not be attributed to civil servant nor could legitimately be made to suffer for lapses on the part of department--Held, civil servant, in circumstances, was entitled to promotion from the date his juniors were promoted.

The Province of Punjab through the Secretary, Services and General Administration, Lahore v. Syed Muhammad Ashraf and others 1973 SCMR 304 rel.

Muhammad Hanif Khatana, Additional Advocate-General, Punjab for Petitioners.

Nemo for Respondent.

2007 S C M R 1357

[Supreme Court of Pakistan]

Before Rana Bhagwandas and Hamid Ali Mirza, JJ

COLLECTOR OF CUSTOMS (VALUATION) and another---Petitioners

Versus

KARACHI BULK STORAGE AND TERMINAL LTD.---Respondent

C.P.L.A. No.676-K of 2004, decided on 17th October, 2006.

(On appeal from order of High Court of Sindh, Karachi dated 14-6-2004 passed in C.P. No.D-651 of 1993).

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

----Art. 199---Constitutional petition before High Court---Maintain­ability-Impugned order found to be illegal, contrary to law or void ab initio---Remedies under departmental hierarchy, non-availing of---Aggrieved party in such case would be entitled to invoke constitutional jurisdiction of High Court.

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

----S. 25---Constitution of Pakistan (1973), Art.199---Constitutional petition before High Court---Maintainability---Rejection of declared value of goods and fixation of its enhanced value without disclosing adequate material or reasons therefor---Remedies under Customs Act, 1969, non-availing of---Such action of authority was arbitrary, whimsical, capricious and in complete disregard of S.25 of Customs Act, 1969---Petitioner was not obliged to avail remedies under Customs Act, 1969, which would have been sheer wastage of time, energy and an exercise in futility---Judgment of High Court accepting constitutional petition in such case was upheld by Supreme Court.

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

Akhtar Ali Mahmud, Deputy Attorney General for Pakistan.

Date of hearing: 17th October, 2006.

2007 SCMR 1359

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Khalil-ur-Rehman Ramday and Nasir-ul-Mulk, JJ

MUNICIPAL COMMITTEE, MANSEHRA and others----Appellants

Versus

Syed MAKHAN SHAH----Respondent

Civil Appeal No.442 of 2002, decided on 1st February, 2006.

(On appeal from judgment of Peshawar High Court, Abbottabad Bench, Abbottabad dated 18-2-2000 passed in R.F.A. No.37 of 1998).

Tort---

----Compensation, suit for---Award of contract in favour of plaintiff by defendant (Municipal Committee), for recovering its current and outstanding dues of water charges---Defendant had initially shown arrears of Rs.7,57,105 against 306 defaulters, which plaintiff, despite hectic efforts, could not recover---Plaintiff's claimed compensation to the extent of Rs.7,57,105, which was adjusted by defendant to the tune of Rs.1,59,390 with intervention of Minister of Local Government---Suit by plaintiff for recovery of remaining amount as compensation---Admission of Tax Officer of defendant (Municipal Committee) as witness that sum of Rs.7,57,105 was due and payable by defendant---Plea of defendant was that after award of compensation to the tune of Rs.1,59,390 with sanction of the Minister, defendant was not bound to compensate plaintiff for un-recovered amount from untraceable water consumers and that plaintiff by accepting Rs.1,59,390 as compensation without any protest was estopped in law from filing suit---Validity---Defendant had fraudulently shown sum of Rs.7,57,105 as arrears in books on account of untraceable water connection charges---In view of admission of defendant's official witness, plaintiff was not legally estopped from suing defendant for redress of his grievance and recovery of compensation amount claimed by him---Suit was decreed in circumstances.

A.R. Khan v. P.N. Boga PLD 1987 SC 107 distinguished.

Syed Sajjad Hussain Shah, Advocate Supreme Court and Bjaz Muhammad Khan, Advocate-on-Record for Appellants.

Abdur Rashid Awan, Advocate Supreme Court for Respondent.

Date of hearing: 1st February, 2006.

2007 S C M R 1362

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, Hamid Ali Mirza and Karamat Nazir Bhandari, JJ

KARIM BUX----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.215 of 2004, decided on 10th April, 2006.

(On appeal from the judgment, dated 17-5-2004 of the High Court of Sindh, Karachi passed in Criminal Appeal No.164 of 2000).

Prevention of Corruption Act (II of 1947)---

----S. 5(2)---Penal Code (XLV of 1860), S.161---Constitution of Pakistan (1973), Art. l85(3)---Complainant, her mother, Magistrate and Mashir of the case, had proved on record the passing on the tainted amount of Rs.4,000 to the accused, which was produced and exhibited in the Court---Accused in his statement under section 342, Cr.P.C. did not disclose any animosity of witnesses for his false implication in the case---Trial Court had already taken a lenient view while sentencing the accused, which did not require any interference---Leave to appeal was refused to accused in circumstances.

A.A. Siddiqui, Advocate Supreme Court for Petitioner.

Muhammad Sarwar Khan, Additional Advocate-General Sindh for the State.

2007 S C M R 1365

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Syed Jamshed Ali, JJ

MUHAMMAD IQBAL----Petitioner

Versus

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

Civil Petition No.1219-L of 2005, decided on 12th July, 2006.

(On appeal from the judgment, dated 9-3-2005 passed by the Punjab Service Tribunal, in Appeal No.2640 of 2000).

Constitution of Pakistan (1973)---

----Art. 212(3)---Petitioner was arrested in a criminal case and was sent to judicial lock-up, but subsequently he was acquitted from said case---No question, in circumstances of wilful absence of petitioner from duty would arise---Leave to appeal was granted to consider the fact and other submissions of petitioner---Short points of law being involved in the case, office was directed to fix appeal for final hearing on its present record within a period of six months.

Saiful Haq Ziay, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2007 SCMR 1366

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, Falak Sher and Tassaduq Hussain Jillani, JJ

THE STATE through Advocate-General, N . -W . F. P., Peshawar----Petitioner

Versus

SAHIBZADA HAYATULLAH----Respondent

Criminal Petition No.19-P of 2003, decided on 7th February, 2007.

(Against the judgment of the Peshawar High Court, Peshawar dated 13-11-2002 passed in Criminal Appeal No.254 of 2000).

Constitution of Pakistan (1973)---

----Art. 185(3)---Petition for leave to appeal---Counsel for the petitioner had contended that High Court, while acquitting respondent, had not appreciated evidence adduced by prosecution in its true perspective and judgment was based on conjectures and surmises and that complainant as well as prosecution witness and eye-witnesses had fully supported the case of prosecution and there was no reason to discard their testimony---Contentions raised requiring consideration, leave to appeal was granted to reappraise prosecution evidence in its entirety for safe administration of justice.

M. Zaman Bhatti, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

2007 SCMR 1367

[Supreme Court of Pakistan]

Before Rana Bhagwandas, Nasir-ul-Mulk and Syed Jamshed Ali, JJ

PAKISTAN through Secretary Finance and others----Appellants

Versus

Messrs LUCKY CEMENT and another----Respondents

Civil Appeals Nos.1388 and 1389 of 2002, 410 to 418 of 2005 and 266, 267 and 395 of 2006, decided on 15th February, 2007.

(a) Central Excise Act (I of 1944)---

----S. 4(2)---Value of goods for purposes of excise duty determination of---Excise duty would be levied on retail price fixed by manufacturer, which would include charges, taxes other than sales tax---Term "tax". would not in all situations be taken to include "duty" for both being separate and distinct impositions---Terms "duty" and "taxes" used in S.4(2) of Central Excise Act, 1944 would not include the other---Excise duty would not be included in fixing retail price of goods, thus, such inclusion, would be illegal---Excise duty would be levied only once after retail price of goods was fixed---Same goods could not be subjected twice to levy of excise duty---Principles.

The Marriage Hall Association v. Government of Sindh 1999 YLR 1247; Messrs Elahi Cotton Mills Ltd. and others v. Federation of Pakistan through Secretary M/o Finance, Islamabad and others PLD 1997 SC 582; Messrs Central Insurance Co. and others v. The Central Board of Revenue; Islamabad and others 1993 SCMR 1232; Atlas Battery Ltd. v. Superintendent Central Excise and Land Customs, Circle 'C' Karachi and others. PLD 1984 SC 86; The Province of Madras v. Messrs Boddu Paidanna & Sons AIR (29) 1942 Federal Court 33; Governor General in Council v. Province of Madras AIR (32) 1945 Privy Council 98 Federal Court; Muhammad Ismail and others v. The State PLD 1969 SC 241; Government of Pakistan and others v. 'Hashwani Hotel Limited (Messrs) PLD 1990 SC 68; Pakistan Textile Mill Owners Association, Karachi and 2 others v. Administrator of Karachi and 2 others PLD 1963 SC 137; Messrs Hirjina & Co. (Pakistan) Ltd., Karachi v. Commissioner of Sales Tax Central, Karachi 1971 SCMR 128; The State v. Zia-ur-Rahman and others PLD 1973 SC 49; United Bank Limited v. Canadian Apparel Company Ltd. and others PLD 1995 Kar. 577; Messrs Lucky Cement Limited v. C.B.R. and others 2003 PTD 1002; Pakistan Beverages Limited v. Federation of Pakistan C.P. No.D-1926 of 2002 and High Court of Sindh, Karachi, Collector of Customs and Central Excise Customs House, Multan v. Messrs Dairies, Kabirwala and others C.Ps. 1527/L to 1530/L and 1576/L to 1579/L of 2000 Supreme Court ref.

(b) Interpretation of statutes---

----Words used in statute---Meaning---Assigning word its ordinary meaning, unless context dictates otherwise.

(c) Interpretation of statutes---

----Fiscal statute---Where two interpretation of statutory provision were possible or any ambiguity existing therein, then interpretation favourable to taxpayer would be preferred.

(d) Interpretation of statutes---

----Different words used in same section or subsection of a statute-- Effect-Intention of legislature in such situation would be not to assign all such words same meaning.

The State v. Zia ur Rahman and others PLD 1973 SC 49 fol.

M. Sardar Khan, Senior Advocate Supreme Court and M. Mumtaz A. Sh., Legal Member for Appellants (in Civil Appeals Nos.1388 and 1389 of 2002).

M.S. Khattak, Advocate-on-Record and Ejaz M. Khan, Advocate-on-Record for Respondents (in Civil Appeals No.1389 of 2002).

Sh. Izhar-ul-Haq, Advocate Supreme Court, Mumtaz Ahmad Sh. Legal Member C.B.R. for Appellants (in Civil Appeals Nos.410 and 411 of 2006).

Ali Sibtain Fazli, Advocate Supreme Court for Respondents (in Civil Appeal No.411 of 2005).

Ashtar Ausaf Ali, Advocate Supreme Court for Respondents (in Civil Appeal No.411 of.2005).

Sh. Izhar-ul-Haq, Advocate Supreme Court for Appellants (in Civil Appeals Nos.412 to 418 of 2005).

Ashtar Ausaf Ali, Advocate Supreme Court for Respondents (in Civil Appeals Nos.412 and 414 of 2005).

Ali Sibtain Fazli, Advocate Supreme Court for Respondent (in s Civil Appeals Nos.413, 415 to 417 of 2005).

Sh. Izhar-ul-Haq, Advocate Supreme Court, Mumtaz A. Sh., Legal Member C.B.R. for Appellants (in Civil Appeal No.266 of 2006).

S. Najmul Hassan Kazmi, Advocate Supreme Court for Respondent No.1 (in Civil Appeal No.266 of 2006).

Sh. Izhar-ul-Haq, Advocate Supreme Court, Mumtaz A. Sh., Member Legal, C.B.R. for Appellants (in Civil Appeal No. 267 of 2007).

Wasim Sajjad, Senior Advocate Supreme Court for Respondent (in Civil Appeal No. 267 of 2006).

Sh. Izhar-ul-Haq, Advocate Supreme Court for Appellants, (in Civil Appeal No. 395 of 2006).

Wasim Sajjad, Senior Advocate Supreme Court for Respondents (in Civil Appeal No. 395 of 2006).

Date of hearing: 15th February, 2007.

2007 SCMR 1375

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Actg. C.J. Tassaduq Hussain Jillani and Nasir-ul-Mulk, JJ

ABDUL KARIM----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.51 of 2001, decided on 26th April, 2007.

(On appeal from judgment of Balochistan High Court, Quetta, dated 30-8-1999 passed in Criminal Appeal No.102 of 1999).

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

-----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to accused by Supreme Court to reappraise the evidence and to examine the question of exercise of right of private defence raised by him at the trial.

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

----Ss. 302(b) & 302(c)---Appraisal of evidence-Accused had not acted in a pre-planned or premeditated manner to take the life of the deceased in order to saddle him with the criminal liability arising under S.302(b), P.P.C.---Accused in a sudden flare up and in the heat of passion had acted in a manner, which could not be totally justified to bring his case within the ambit of S.302(b), P.P.C.---Injuries on the person of the accused were concealed in the F.I.R. as well as at the trial and despite his arrest on the same day he was not got medically examined---Non-­explanation of the said facts by the prosecution had diminished the liability of the accused for the act committed by him---Conviction of accused under S.302(b), P.P.C. was restored to S.302(c), P.P.C. and his sentence of imprisonment for life was reduced to that of already undergone by him in circumstances, which would come to about 8-1/2 years' R.I.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Mehmood Raza, Additional Advocate-General, Balochistan for the State.

Date of hearing: 26th April, 2007.

2007 S C M R 1378

[Supreme Court of Pakistan]

Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ

MUHAMMAD IRSHAD----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.407 of 2005, decided on 8th May, 2006.

(On appeal from the judgment, dated 11-10-2005 passed by Lahore High Court, Rawalpindi Bench, in Criminal Appeal No.627 of 2002).

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

----S. 9(c)---Constitution of Pakistan (1973), Art.185(3)---Huge quantity of opium contained in bags was recovered from the possession of accused in presence of witnesses and he was arrested at the spot---Recovery was proved by the member of raiding party who had no personal reason to involve the 'accused in a false case---No material discrepancy or contradiction could be pointed out in the evidence suggesting a slight doubt in the prosecution case arising in favour of accused-Concurrent findings of the two Courts regarding the guilt of accused did not suffer from any legal or factual defect calling for interference of Supreme Court---Leave to appeal was declined to accused in circumstances.

Sardar Abdul Majeed, Advocate Supreme Court for Petitioner.

Muhammad Zaman Bhatti, Advocate Supreme Court for the State.

Date of hearing: 8th May, 2006.

2007 SCMR 1380

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

ALL PAKISTAN SEAMEN'S WORKERS UNION through General Secretary---Petitioner

Versus

PAKISTAN SEAMEN'S UNION through Secretary and others----Respondents

C.P.L.A. No.460-K of 2006, decided on 13th November, 2006.

(On appeal from order of High Court of Sindh Karachi dated 24-8-2006 passed in C.P. No.D-486 of 2000).

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 22-A(4), (8)(d) & 22-B(2)(b), (3)(b)---Registration of industry-wise Trade Union---Entrustment of application for registration by Chairman to Deputy Registrars of National Industrial Relations Commission---Report of Deputy. Registrar favouring registration-- Chairman of Commission approving such report without applying mind---Validity---Registration of such Union was a function to be performed by Commission, which would include its Chairman and Members appointed under S.22-A(4) of Industrial Relations Ordinance, 1969---Powers vested in Commission exercisable by its Chairman or its Bench could not be delegated or entrusted to its officer including the Registrar--Supreme Court upheld Order of High Court declaring such registration to be illegal and without lawful authority---Principles.

Essa Cement Industries Workers' Union Registrar of Trade Unions 1998 SCMR 1964 distinguished.

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

Muhammad Tasneem, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Respondent No.1.

Ghulam Nabi Dareshak, Deputy Registrar, NIRC for Respondent No.2.

Masood Ahmad Shipping Master for Respondent No.3.

Agha Faqir Muhammad, Advocate Supreme Court and Raja Sher Muhammad Khan, Advocate-on-Record for Respondent No.7.

Nemo for Respondents Nos.4 to 6 and 8 to 10.

Date of hearing: 13th November, 2006.

2007 S C M R 1382

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Saiyed Saeed Ashhad, JJ

BASHUMAL----Petitioner

Versus

THE STATE and another----Respondents

Criminal Petition No.78-K of 2006, decided on 16th October, 2006.

(On appeal from the order, dated 4-10-2006 of the High Court of Sindh, Karachi, in Criminal Bail Application No.407 of 2006).

Criminal Procedure Code (V of 1898)---

----S. 497---Constitution of Pakistan (1973), Art.185(3)---Bail, grant of---High Court had cancelled the bail granted to accused on the allegation that he had given threats to the complainant in the Court premises using abusive language and thus, misused the concession of bail---High Court did not provide an opportunity to the accused to rebut and deny the aforesaid allegation and passed the impugned order in great haste without observing the requirements for cancellation of bail---Bail once granted could not be cancelled unless plausible satisfactory and credible material was placed on record to establish the allegation---No material was available to show that the accused had misused the concession of bail---Accused was admitted to bail in circumstances.

F.M. Javed, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Abbas Ali, Additional Advocate-General Sindh for the State.

2007 SCMR 1384

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Sardar Muhammad Raza Khan and Falak Sher, JJ

JALAL DIN----Petitioner

Versus

THE STATE and another----Respondents

Criminal P.L.A. No.377-L of 2006, decided on 13th December, 2006.

(On appeal from the judgment of the Lahore High Court, Lahore dated 6-4-2006 passed in Criminal Appeals Nos.579 and 789 of 2000 and Murder Reference No.218-T of 2002).

Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---Leave to appeal was granted by Supreme Court against the accused in order to re-examine and reappraise the evidence with a view to ascertain whether the principles for safe administration of criminal justice laid down by Supreme Court had been fully adhered to.

Raja Abdul Rehman, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2007 SCMR 1385

[Supreme Court of Pakistan]

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

MUHAMMAD GUL----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.125 of 2005, decided on 11th May, 2006.

(On appeal from the judgment/order, dated 29-3-2005, passed by the High Court Balochistan, Quetta, in Criminal Jail Appeal No.8 of 2005).

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

----S. 9---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to accused to consider inter alia the contentions that neither he was produced before any Magistrate immediately after his arrest, nor the delay of four days in lodging the F.I.R. was explained and that the prosecution had failed to prove its case against the accused for the recovery of 1100 grams of "Chars".

Niaz Ahmad Rathore, Advocate Supreme Court for Petitioner.

Nemo for the State.

2007 S C M R 1386

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Actg. C.J., Tassaduq Hussain Jillani and Ghulam Rabbani, JJ

Criminal Petition No.109-P of 2003

THE STATE through A.-G. N.-W.F.P.----Petitioner

Versus

GHULAM HAIDER and others----Respondents

(Against the judgment of the Peshawar High Court, Peshawar dated 3-6-2003 passed in Criminal Appeal No.239 of 2002, Criminal Revision No.96 of 2002 and Criminal Revision No.91 of 2002).

Criminal Petition No.120-P of 2003

STATE through A.-G. N.-W.F.P.----Petitioner

Versus

GHULAM HAIDER and others----Respondents

(Against the judgment of the Peshawar High Court, Peshawar dated 3-6-2003 passed in Criminal Appeal No.239 of 2002, Criminal Revision No.96 of 2002 and Criminal Revision No.91 of 2002).

Criminal Petition No.249 of 2003

SHER BAHADAR----Petitioner

Versus

GHULAM HAIDER and Others----Respondents

(Against the judgment of the Peshawar High Court, Peshawar dated 3-6-2003 passed in Criminal Appeal No.239 of 2002, Criminal Revision No.96 of 2002 and Criminal Revision No.91 of 2002).

Criminal Petitions Nos.109-P, 120-P and 249 of 2003, decided on 7th May, 2007.

Penal Code (XLV of 1860)---

----Ss. 302, 324 & 148---Constitution of Pakistan '(1973), Art.185(3)--- Leave to appeal was granted to State in order to ascertain whether the principles for appraisal of evidence laid down by Supreme Court for safe administration of criminal justice ,system were fully adhered to and whether reasons recorded by High Court could be sustained at law for reversing a judgment of conviction into acquittal.

M. Zaman Bhatti, Advocate Supreme Court for Petitioners (in Criminal Petitions Nos.109-P and 120-P of 2003).

Nemo for Respondents (in Criminal Petitions Nos.109-P and 120-P of 2003).

Dr. Babar Awan, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner (in Criminal Petition No.249 of 2003).

Nemo for Respondents (in Criminal Petition No.249 of 2003).

2007 SCMR 1388

[Shariat Appellate Jurisdiction]

Present: Justice Sardar Muhammad Raza Khan, Chairman Justices Ch. Ijaz Ahmed, Dr. Allama Khalid Mehmood and Allama Rashid Ahmad Jullundhari, Members

IZZAT KHAN and another----Petitioners

Versus

THE STATE----Respondent

Jail Shariat Petition No.21 of 2003, decided on 27th November, 2006.

(On appeal from the judgment, dated 4-12-2002 of the Federal Shariat Court, Peshawar passed in Criminal Appeal No.35-P of 2002).

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

----Ss. 11 & 10(3)---Constitution of Pakistan (1973), Art.203-F(2B)--- Abductee as well as natural witnesses who were inmates of the house had involved the accused in the commission of the offence of abduction---Real sister of complainant having been married to one of the accused, no such charge could be brought by the complainant unless true---Other accused in his statement under S.342, Cr.P.C. had admitted having taken away the abductee on the plea that she was his wife, but no Nikah between them was at all proved and such clear admission of abduction had further proved the commission of Zina as well---Leave to appeal was refused to accused in circumstances.

Niaz Ahmad Rathore, Advocate Supreme Court for Petitioners.

Pir Liaqat Ali Shah, A.-G. N.-W.F.P. for the State.

Date of hearing: 27th November, 2006.

2007 S C M R 1390

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Actg. C.J., Tassaduq Hussain Jillani and Nasir-ul-Mulk, JJ

THE STATE through A.-G. N.-W.F.P.----Petitioner

Versus

MEHMOOD KHAN and others----Respondents

Criminal Petition No.153-P of 2003, decided on 27th April, 2007.

(Against the judgment of the Peshawar High Court, Peshawar, dated 2-7-2003 passed in Criminal Appeal No.235 of 2002).

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

----Ss. 302/34 & 324/34---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---High Court had neither acted illegally nor arbitrarily in not relying upon ocular account furnished by the witnesses---Reappraisal of evidence by High Court did not suffer from any misreading, non-reading or misconstruction of evidence on record-- Recovery of weapon from one of the accused was not attached any importance for valid and logical reasons---Acquittal of accused could not be shown as fanciful, artificial and conjectural warranting any interference by Supreme Court in exercise of constitutional jurisdiction---Order of acquittal had doubled the initial presumption of innocence of accused which would be stronger in case of verdict of acquittal recorded by a Court of record---Leave to appeal was refused to the State accordingly.

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

----S. 417---Appeal in case of acquittal---Double presumption of innocence of accused---An order of acquittal ordinarily doubles the initial presumption of innocence of an accused which would be stronger in the case of verdict of acquittal recorded by a Court of record.

M. Zaman Bhatti, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2007 S C M R 1392

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Ghulam Rabbani, JJ

RIZWAN IQBAL----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.769-L of 2006, decided on 15th November, 2006.

(On appeal from judgment/order, dated 17-10-2006 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.3224/B of 2005).

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.420/467/468/471---Constitution of Pakistan (1973), Art.185(3)---Pre-arrest bail, grant of--- Accused had allegedly forged an agreement to sell in respect of a plot--­F.I.R. had been registered against the accused after about seven years and that too at a police station lacking territorial jurisdiction over the property in dispute---Divergence of opinion exited between the State counsel and the counsel for the complainant over the reports of Handwriting Experts---Case against accused, thus, called for further inquiry---Ad interim pre-arrest bail allowed to accused was confirmed in circumstances.

Talib H. Rizvi Senior Advocate Supreme Court, C.M. Latif Advocate-on-Record for Petitioner.

Imtiaz Ahmed Chaudhry, Advocate Supreme Court, Javed Iqbal, Sub-Inspector, Police Station Green Town, Lahore for Respondent.

M.A. Zafar Advocate Supreme Court for the Complainant.

Date of hearing: 15th November, 2006.

2007 S C M R 1394

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Ch. Ijaz Ahmed, JJ

PUNJAB INDUSTRIAL DEVELOPMENT BOARD----Petitioner

Versus

UNITED SUGAR MILLS LIMITED----Respondent

Civil Petition No.2717 of 2005, decided on 22nd March, 2007.

(On appeal from the judgment/order, dated 25-8-2005 passed by High Court Sindh, Karachi in H.C.A. No.142 of 2000).

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

----O. XLI, R. 33---Duty of Appellate Court to decide controversy between parties after applying independent and judicial mind thereto---Principles.

It is duty and obligation of the Appellate Court to decide the controversy between the parties after judicial application of mind.

Appellate Court has to decide the appeal after independent application of mind and mere reproduction of the judgment of the Trial Court and thereafter dismissing the appeal would not be in consonance with the law laid down by Supreme Court in Ghulam Mohayyauddin's case PLD 1964 SC 829. After addition to section 24-A in the General Clauses Act, 1894, even the public functionaries are duty bound to decide the applications of citizens while exercising statutory powers with reasons after judicial application of mind.

Mollah Ejahar Ali v. Government of Pakistan PLD 1970 SC 173; Gouranga Mohan Sikdar v. Controller of Import and Export and 2 others PLD 1970 SC 158; Ghulam Mohayyauddin's case PLD 1964 SC 829 and Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268 rel.

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

----Art. 185---Concurrent findings of fact reached by High Court and

Courts below---Effect-Supreme Court normally would not interfere

with such findings, if same were wholly reasonable and not arrived at by disregarding any provision of law or accepted principle concerning appreciation of evidence.

Syed Najam-ul-Hassan Kazmi, Advocate Supreme Court for Petitioner.

Ch. M. Anwar Khan, Advocate-on-Record for Respondent.

Date of hearing; 22nd March, 2007.

2007 S C M R 1399

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Ghulam Rabbani, JJ

MASAL KHAN and another----Petitioners

Versus

THE STATE----Respondent

Jail Petition No.345 of 2005, decided on 30th April, 2007.

(On appeal from the judgment/order, dated 10-9-2006 passed by the Peshawar High Court, Peshawar, in Jail Criminal Appeal No.419 of 2004).

Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)---

----S. 17(3)---Anti-Terrorism Act (XXVII of 1997), S.7---Constitution of Pakistan (1973), Art.185(3)---Benefit of S.382-B, Cr.P.C., grant of---Petition was not pressed on merits and only benefit of S.382-B, Cr.P.C. was sought---Counsel for the State had no objection---Jail petition was converted into appeal and the same was allowed partly by condoning the delay---Impugned judgment of High Court was modified to the extent that accused would be entitled toile benefit of S.382-B, Cr.P.C. for the period they remained under-trial prisoners.

Ghulam Murtaza v. The State PLD 4998 SC 152 ref.

Niaz Ahmed Rathore, Advocate Supreme Court for Petitioners.

Muhammad Zaman Bhatti, Advocate Supreme Court for the State.

2007 S C M R 1400

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed and Hamid Ali Mirza, JJ

STATE LIFE INSURANCE CORPORATION OF PAKISTAN through Chairman----Petitioner

Versus

RAZ MUHAMMAD SHANWARI and others----Respondents

Civil Petition No.224 of 2007, decided on 17th April, 2007.

(On appeal from the judgment, dated 7-2-2007 of the Peshawar High Court, Peshawar passed in Writ Petition No.1541 of 2006).

Constitution of Pakistan (1973)---

----Art. 185(3)---Petition for leave to appeal---Petitioner had sought leave to appeal from judgment of High Court whereby petitioner Corporation was directed to implement judgment of Service Tribunal, reinstating respondent---Stay granted in case had only suspended implementation of judgment of Service Tribunal and could not, by any stretch of arguments, be considered to be one setting aside judgment in question---High Court had rightly directed implementation of judgment of Service Tribunal.

Muhammad Mubeen-ul-Islam and others v. Federation of Pakistan PLD 2006 SC 602 ref.

Agha Tariq Mehmood Khan, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Zulfiqar Khalid Maluka, Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 17th April, 2007.

2007 SCMR 1402

[Supreme Court of Pakistan]

Present: Javed Iqbal and Muhammad Nawaz Abbasi, JJ

MUHAMMAD NAZIM and others----Petitioners

Versus

THE STATE----Respondent

Criminal Petitions Nos.109-L and 110-L of 2005, decided on 5th April, 2006.

(On appeal from the judgment, dated 8-2-2005 of the Lahore High Court, Lahore, passed in Criminal Appeal No.320 of 2003).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted on the points; (i) whether evidence which had come on record had been appreciated in its true perspective in accordance with the settled norms of justice and the well-entrenched principles enunciated by Supreme Court qua the safe administration of justice; that whether the capital punishment could have been awarded on the basis of interested and partisan evidence furnished by the interested witnesses in absence of any corroboration and in view of admitted background of enmity; that whether the factum of absconsion could be considered as a corroboratory piece of evidence in case of capital punishment and that whether the judgment impugned was in consonance with the law as laid down in case reported as 1995 SCMR 1373 qua factum of absconsion.

Rasool Muhammad v. Asal Muhammad 1995 SCMR 1373 ref.

Sayyed Mazhar Ali Akbar Naqvi, Advocate Supreme Court for Petitioner (in Criminal Petition No.110-L of 2005).

Muhammad Akram Sheikh, Nasiruddin Khan Nayyar and M.A. Zaidi, Senior Advocate-on-Record for Petitioner, (in Criminal Petition No.109-L of 2005).

Zahid Hussain Bukhari, Advocate Supreme Court for the Complainant.

2007 S C M R 1404

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, Falak Sher and Tassaduq Hussain Jillani, JJ

Malak JEHANGIR KHAN and others----Petitioners

Versus

SARDAR ALI and 2 others----Respondents

Criminal Petitions Nos.7-P and 36-P of 2003, decided on 6th February, 2007.

(On appeal from the judgment of the Peshawar High Court, Peshawar dated 12-12-2002 passed in Criminal Appeal No.217 of 2002 and Murder Reference No.8 of 2002).

Penal Code (XLV of 1860)---

----Ss. 302(b) & 201---Constitution of Pakistan (1973), Art.185(3)--- Appeal against acquittal---Only piece of evidence against the accused was retracted judicial confession which even according to High Court was not corroborated by any other independent evidence and was disbelieved---No illegality, misreading or non-appreciation of evidence warranting interference by Supreme Court could be pointed out---Impugned judgment acquitting the accused had been passed after duly appraising the entire evidence collected by the prosecution---Leave to appeal was refused accordingly.

Arif Khan, Advocate Supreme Court and M. Zahoor Qureshi, Advocate-on-Record for Petitioner (in Criminal Petition No.7-P of 2003).

M. Zaman Bhatti, Advocate Supreme Court for Petitioners (in Criminal Petition No.36-P of 2003).

Nemo for Respondents Nos.1 and 2 (in Criminal Petition No.7-P of 2003).

M. Zaman Bhatti, Advocate Supreme Court for Respondent No.3 (in Criminal Petition No.7-P of 2003).

Nemo for Respondents (in Criminal Petition No.36-P of 2003).

Date of hearing: 6th February, 2007.

2007 S C M R 1406

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Actg. C.J. Tassaduq Hussain Jillani and Nasir-ul-Mulk, JJ

HAZARA DEVELOPMENT AUTHORITY, ABBOTTABAD/MANSEHRA DEVELOPMENT AUTHORITY, MANSEHRA----Appellant

Versus

DISTRICT COUNCIL, ABBOTTABAD through Administrator/Tehsil Municipal Officer, Abbottabad and others----Respondents

Civil Appeal No.972 of 2006, decided on 17th April, 2007.

(On appeal from the judgment of the Peshawar High Court, Circuit Bench Abbottabad, dated 10-2-2004 passed in Civil Revision No.88 of 2003).

(a) North West Frontier Province District Council (Tax on Transfer of Immovable Property) Rules, 1963---

----Constitution of Pakistan (1973), Art. 185 (3)---Leave to appeal was granted by Supreme Court to consider; whether plaintiff was liable to pay tax on transfer of property merely on the basis of paper transaction when possession of the land was not taken by plaintiff and acquisition proceedings were eventually dropped.

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

----S. 42---North West Frontier Province District Council (Tax on Transfer of Immovable Property) Rules, 1963---Declaration of title---Auction of plots---Past and closed transaction---Land in question was acquired by plaintiff-Authority and mutation was attested---Authority did not pay transfer tax due on the land acquired by it, therefore, District Council auctioned certain plots of the Authority to recover its transfer tax---Plaintiff-Authority filed suit against such auction on the ground that the land acquired by it was de-acquisitioned and returned to its owners---Trial Court and Appellate Court concurrently dismissed the suit filed by plaintiff-Authority---Judgments and decree passed by two courts below was maintained by High Court in exercise of revisional jurisdiction--­Validity---Plots owned by plaintiff-Authority had already been auctioned, whereas notification of de-acquisition was issued more than one year after filing of the suit---Plaintiff-Authority did not assail in time the process under Recovery of Tax Rules, 1980, initiated by District Council for recovery of tax, which eventually resulted in sale of plaintiff's plots through public auction---Auction proceedings were completed and sale certificates were issued to auction-purchasers before filing of the suit; by then it was a past and closed transaction---Plaintiff-Authority, in the plaint assailed sale of plots through auction but did not implead auction purchasers as defendants---Supreme Court did not find any justification to reverse concurrent findings of three courts below---Appeal was dismissed.

Raja Muhammad Ibrahim Satti, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Appellant.

Gulzarin Kiani, Advocate Supreme Court with Raja Abdul Ghafoor, Advocate-on-Record for Respondents.

Date of hearing: 17th April, 2007.

2007 S C M R 1410

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan Falak Sher and Raja Fayyaz Ahmad, JJ

GUL MUHAMMAD and another----Appellants

Versus

MUHAMMAD AFZAL and others----Respondents

Criminal Appeals Nos.449 and 450 of 2000, decided on 16th February, 2007.

(On appeal from the judgment, dated 3-2-2000 of the Lahore High Court, Bahawalpur Bench, Bahawalpur passed in Criminal No.56 of 1997/BWP and Murder Reference No.10 of 1997).

Constitution of Pakistan (1973)---

----Art. 185---Criminal appeal---Counsel for the accused had submitted an application for their withdrawal from the case on the ground that the appellant was not interested in the case and they could not make contact with him despite their best efforts---Appeal was dismissed for non-prosecution in circumstances---Accused in other appeal had served out his sentence and his appeal was dismissed as infructuous.

Nemo for Appellants (in Criminal Appeal No.449 of 2000)

M. Zaman Bhatti, Advocate Supreme Court for Appellants (in Criminal Appeals Nos.449 and 450 of 2000).

Ch. Munir Sadiq, DPG for the State.

2007 SCMR 1411

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, J

SAIFULLAH KHAN and another----Appellants

Versus

THE STATE----Respondent

Criminal Miscellaneous Application No.500 of 2006 in Criminal Appeal No.152 of 2006 out of Jail Petition No.285 of 2003, decided on 28th February, 2007.

(On appeal from the judgment, dated 6-5-2003 of Peshawar High Court, Peshawar passed in Criminal Appeal No.368 of 2001).

Constitution of Pakistan (1973)---

----Art. 185---Withdrawal of criminal appeal---Out of two accused, one accused had applied for withdrawal of appeal on the ground that he had served out his sentence and now wanted to deposit the fine as well as Diyat before the Trial Court, which was not accepted due to the pendency of the present appeal---Appeal so far as the present accused was concerned, was dismissed as withdrawn with the direction that he would not be released unless the amount of fine and Diyat was paid in Court.

Babar Ali, Advocate Supreme Court with Ch. Muhammad Akram Advocate-on-Record for Appellant No.2.

Muhammad Zaman Bhatti, Advocate Supreme Court for Advocate-General, N. -W . F . P.

2007 S C M R 1412

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Abdul Hameed Dogar, JJ

MUHAMMAD ASLAM and another----Petitioners

Versus

THE STATE----Respondent

Crl. P.L.A. No.13-K of 2007, decided on 1st March, 2007.

(On appeal from order of Sindh High Court, Sukkur Bench, Sukkur dated 12-1-2007 passed in Criminal Bail Application No.557 of 2006).

Criminal Procedure Code (V of 1898)---

----S. 498---Constitution of Pakistan (1973), Art.185(3)---Pre-arrest bail, refusal of---Accused were directly nominated in the F.I.R. with active roles of causing Sota blows as well as injuries by backside of hatchet to two ladies---Accused had been challaned in the case and as per observation of High Court despite delay in lodging the F.I.R., no element of mala fide appeared to exist on the face of the record---Discretion exercised by High Court in the matter of pre-arrest bail did not suffer from any illegality or arbitrariness---No good ground for interference with the exercise of discretion by High Court was available---Petition was dismissed accordingly and leave to appeal refused.

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

Nemo for the State.

2007 S C M R 1413

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Actg. C.J, Tassaduq Hussain Jillani and Nasir-ul-Mulk, JJ

MUHAMMAD RIAZ and another----Appellants

Versus

THE STATE and another----Respondents

Criminal Appeal No.297 and Criminal Petition No.176 of 2001, decided on 9th May, 2007.

(On appeal from the judgment of the Lahore High Court, dated 4-6-2001 passed in Criminal Revision No.286 of 1992).

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

----S. 302/34---Criminal Procedure Code (V of 1898), S.439---Qatl-i-Amd-Sentence of life imprisonment awarded by Trial Court to two accused was enhanced to death sentence by High Court in revisional jurisdiction---Validity---Three accused were charged for murder of deceased with their respective weapons---Motive of Offence was financial dispute between parties---Incident occurred in the dark of night at 9-00 p.m. when a bulb attached to a wooden rod was available at place of occurrence---Prosecution witnesses had pointedly ascribed act of each accused in firing at different parts of body of deceased from their respective weapons---Medical report revealed that two injuries were caused to deceased from some distance---Difficult to ascertain in ordinary course of events as to which injury was caused by which accused---Both injuries were individually and collectively sufficient to cause death of deceased in ordinary course of nature---Medico-Legal Expert during cross-examination did not deny possibility that both injuries could be the result of a single fire---Not easy to ascertain as to which of the accused out of three assailants was responsible for causing such injuries---Discretion in matter of sentence exercised by Trial Court did not suffer from perversity or any arbitrariness---High Court, though was bound to record valid, cogent and strong reasons for awarding capital punishment to accused, but had not assigned reasons for discarding opinion of Trial Court in matter of sentence--Supreme Court set aside judgment of High Court and restored conviction and sentence recorded by Trial Court.

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

----S. 302---Qatl-i-Amd---Determination of quantum of sentence--- Principles.

No doubt, normal penalty for an act of commission of Qatl-i-­Amd provided under law is death, but since life imprisonment also being a legal sentence for such offence must be kept in mind wherever the facts and circumstances warrant mitigation of sentence, because no hard and fast rule can be applied in each and every case.

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

M. Munir Peracha, Advocate Supreme Court for the Complainant.

Ch. Munir Sadiq, Deputy Prosecutor-General, Punjab for the State.

Date of hearing: 9th May, 2007.

2007 S C M R 1417

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Actg. C.J. Tassaduq Hussain Jillani and Nasir-ul-Mulk, JJ

THE STATE through Advocate-General N.-W.F.P., Peshawar----Petitioner

Versus

HAMAYUN and others----Respondents

Criminal Petition No.41-P of 2003, decided on 11th April, 2007.

(On appeal from the judgment of the Peshawar High Court, Peshawar, dated 14-1-2003 passed in Criminal Appeal No.252 of 2002).

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

----Ss. 302/149, 307/149 & 148---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---F.I.R. was lodged promptly ruling out consultations and deliberations---Accused belonging to the same village were known to the complainant party, distance between the eye-witnesses and the accused ranged from 14 to 105 paces, occurrence had taken place in daylight, identification of accused by. the eye­witnesses thus was not open to any doubt---Abscondence of accused for more than six years was not satisfactorily explained---Confidence inspiring ocular testimony of three injured eye-witnesses was corroborated by medical evidence, motive and abscondence of accused---Reasons given by High Court for acquitting the accused were based on conjectures unsupported, by evidence and were not justified---Impugned judgment of High Court acquitting the accused was consequently set aside and the convictions and sentences awarded to accused by Trial Court were restored in circumstances.

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

----Art. 185(3)---Penal Code (XLV of 1860), Ss.302/149, 307/149 & 148---Appeal against acquittal---Supreme Court although is slow in reversing orders of acquittal, yet interference is required when reasons for acquittal are fanciful, not borne from the evidence on record.

M. Zaman Bhatti, Advocate Supreme Court for Petitioner.

Raja Abdul Ghafoor, Advocate Supreme Court for Respondents Nos.1 and 2.

Date of hearing: 11th April, 2007.

2007 S C M R 1423

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Abdul Hameed Dogar, JJ

GHULAM ASGHAR ABBASI----Petitioner

Versus

REGISTRAR, HIGH COURT OF SINDH and others----Respondents

C.P.L.A. No.301-K of 2006, decided on 3rd March, 2007.

Constitution of Pakistan (1973)---

----Art. 185(3)---Petition for leave to appeal---Grievance of the petitioner, a Judicial Officer, was that his constitutional petition could have been conveniently and justifiably decided by the Division Bench of the High Court without condemning and criticizing the act and conduct of the petitioner, who had been punished unheard and without any notice---Supreme Court observed that as the impugned judgment was tendered by a Division Bench and career of a Judicial Officer was involved in the petition, leave to appeal was granted against the part of the judgment relating to strictures against the petitioner with the direction that appeal arising out of the present petition shall be listed for hearing within six months.

Muhammad Punhal v. Abdul Wahid Abbasi 2003 SCMR 1406 ref.

Ghulam Qadir Jatoi, Advocate-on-Record/Advocate Supreme Court for Petitioner.

Dr. Qazi Khalid Ali, Additional Advocate-General Sindh for Respondents.

2007 S C M R 1424

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Actg. C.J. Tassaduq Hussain Jillani and Nasir-ul-Mulk, JJ

AHMED SULTAN and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.52 of 2001, decided on 26th.April, 2007.

(On appeal from the judgment and order of the High Court of Balochistan, Quetta, dated 6-12-2000 passed in Criminal Miscellaneous Quashment No.40 of 2000).

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

----S. 302/34---Constitution of. Pakistan (1973), Art.185(3)---High Court had refused to order the sentences of imprisonment for life awarded to accused in the two cases to run concurrently---Question of directing the said sentences to run concurrently required examination by Supreme Court keeping in view the principles laid down by Supreme Court---Leave to appeal was granted to examine the case of accused thoroughly in the light of cases decided by Supreme Court.

Javed Sheikh v. The State 1985 SCMR 153; Muhammad Ramzan v. The State 1989 SCMR 1405; Bashir and 3 others v. The State PLD 1991 SC 1145 and Bhai Khan v. The State PLD 1992 SC 14 ref.

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

----S. 302/34---Criminal Procedure Code (V of 1898), S.397-Request for direction for sentences to run concurrently, refusal of---Motive for the three murders according to the confessional statements of the accused was the same and the crime was committed also on the same day; but one deceased was murdered by strangulation at a place different than the one where other two deceased were murdered also by strangulation---Incident had taken place within the limits of two different police stations---Accused, therefore, were tried in the two cases separately, though the judgment was announced on the same day---Sentences of imprisonment of a person convicted for offences in different cases, as provided by S.397, Cr.P.C. were to run consecutively, but discretion was left with the Trial Court to order the concurrent running of the sentences of imprisonment in separate cases---Unless such discretion was exercised in favour of accused, the sentences would run consecutively---Neither the Trial Court nor the High Court or even the Supreme Court in the petitions for leave to appeal had exercised the said discretion in favour of the accused persons; even otherwise, on merits too, keeping in view the gruesome murders of three persons for a petty object committed by the accused, such discretion of directing the sentences to run concurrently was not exercised in their favour---Appeal was dismissed by Supreme Court accordingly.

Javed Sheikh v. The State 1985 SCMR 153; Muhammad Ramzan v. The State 1989 SCMR 1405; Bashir and 3 others v. The State PLD 1991 SC 1145 and Bhai Khan v. The State PLD 1992 SC 14 distinguished.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellants.

Mehmood Raza, Additional Advocate-General Balochistan for the State.

Date of hearing: 26th April, 2007.

2007 SCMR 1427

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan Ch. Ijaz Ahmed and Hamid Ali Mirza, JJ

Dr. ISRAR-UL-HAQ----Petitioner

Versus

•MUHAMMAD FAYYAZ and another----Respondents

Criminal Petition No.153 of 2004, decided on 4th April, 2007.

(On appeal from the judgment, dated 8-3-2004 of the Lahore High Court, Rawalpindi bench, passed in Criminal Appeal No.51 of 1995).

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

----S. 417---Appeal against acquittal---Parameters regarding interference in case of acquittal laid down.

Ghulam Sakindar's case PLD 1985 SC 11 and Muhammad Iqbal's case 1994 SCMR 1928 ref.

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

----Ss. 302/324---Appreciation of evidence---Substitution---Principle--- Substitution of innocent person when a single accused is named in a murder case is a rare phenomenon, but it depends from case to case.

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

----Ss. 302/324---Appreciation of evidence---Principles---Direct evidence having failed, corroborative evidence was of no help---When ocular evidence is disbelieved in a criminal case then the recovery of an incriminating article in the nature of weapon of offence does not by itself prove the prosecution case.

Dhuende's case ILR 19 Lah. 995 ref.

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

----Ss. 302/324---Constitution of. Pakistan (1973), Art.185(3)---Appeal against acquittal---Doubts which induced High Court to uphold the acquittal of accused were substantial doubts affecting the possibility of belief in the truth of the prosecution case---Case against accused was not one in which a finding of guilt could be reached with confidence---Complainant and the deceased had a dispute with the accused and both the Courts below had rightly discarded their veracity as their statements did not inspire. confidence---Ocular evidence had been disbelieved by the Trial Court and High Court for cogent reasons---Direct evidence having failed, corroborative evidence could not help the prosecution---No evidence had come on record to connect the accused with the commission of offence-Evidence on record had been properly appreciated by the Courts below and acquittal of accused had been endorsed by High Court with cogent reasons---Leave to appeal was refused to complainant in circumstances.

Ghulam Sakindar's case PLD 1985 SC 11; Muhammad Iqbal's case 1994 SCMR 1928; Dhuende's case ILR 19 Lah. 995; Muhammad Ashraf's case PLD 1977 SC 538; Din Muhammad's case 1970 SCMR 857, Matiur Rehman's case 1970 SCMR 877 and Abdul Khaliq's case 1996 SCMR 1553 ref.

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

----Art. 185(3)---Penal Code (XLV of 1860), Ss.302/324---Appeal against acquittal---Principles---Supreme Court does not interfere with the concurrent conclusions reached by the Courts below with regard to the innocence of accused while exercising power under Art.185(3) of the Constitution.

Muhammad Ashraf's case PLD 1977 SC 538; Din Muhammad's case 1970 SCMR 857, Matiur Rehman's case 1970 SCMR 877 and Abdul Khaliq's case 1996 SCMR 1553 ref.

Sardar Astnatullah, Advocate Supreme Court for Petitioner.

Sh. Zamir Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 4th April, 2007.

2007 S C M R 1434

[Supreme Court of Pakistan]

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

AMMANULLAH KHAN LEGHARI----Appellant

Versus

ABID SHAIKH AHMED----Respondent

Civil Appeal No.2585 of 2001, decided on 3rd February, 2007.

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

----S. 21 [as amended by Sindh Rented Premises (Amendment) Ordinance (XIV of 2001)---Civil Procedure Code (V of 1908), Preamble---Appeal---Order of dismissal of appeal was passed by the High Court before amendment of S.21, Sindh Rented Premises Ordinance, 1979---Question arose as to whether after dismissal of first rent appeal by the High Court under the Sindh Rented Premises Ordinance, 1979 High Court, after the amendment introduced in S.21 conferring powers of appeal on the District Judge, was competent to re­admit the appeal dismissed for non-prosecution at the instance of the appellant upon showing sufficient cause---Held, broad and equitable principles of Civil Procedure Code (V of 1908) could always be invoked for ensuring complete and substantial justice between the parties---Order of the dismissal of appeal for non-prosecution having been passed by the High Court, it would be appropriate for the High Court to entertain a prayer for its recall and re-admission---High Court should not in such cases, suffer from abdication of jurisdiction and rather exercise its jurisdiction for securing complete ends of justice and suppressing the mischief rather than technically knocking out a person---Supreme Court directed that restoration application shall be deemed to be pending 'before the High Court and shall be disposed of on its own merits strictly in accordance with law with utmost expedition in view of the anxiety expressed by respondent who has been litigating for the enforcement of his right for the last more than sixteen years.

Rizwan Ahmed Siddiqui, Advocate Supreme Court for Respondent.

2007 S C M R 1435

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Syed Jamshed Ali and Ghulam Rabbani, JJ

WAJID KHAN----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.54 of 2005, decided on 10th April, 2007.

(Against the judgment, dated 22-12-2004 passed by Peshawar High Court, Peshawar in Criminal Appeal No.773 of 2003).

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

----S. 9(c)---Constitution of Pakistan (1973), Art.185(3)---Recovery of 189 kilograms Charas and 12 kilogram opium from accused was duly proved by the prosecution---Each packet of Charas and opium weighing one kilogram, provisions of S.9(c) of the Control of Narcotic Substances Act, 1997, were fully attracted-Prosecution evidence was properly considered by the Courts below in juxtaposition with the plea taken by accused---No reason for false involvement of accused existed despite some concessions made by a prosecution witness---Impugned judgment did not suffer from any legal infirmity so as to warrant interference by Supreme Court---Leave to appeal was refused to accused in circumstances.

Sardar M. Sadiq Khan, Advocate-General, N.-W.F.P., Peshawar for Petitioner.

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

2007 S C M R 1437

[Supreme Court of Pakistan]

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

DAULAT KHAN----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.2-K of 2007, decided on 13th February, 2007.

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

----S.9(c)---Constitution of Pakistan (1973), Art:185(3)---Leave to appeal was granted by the Supreme Court to consider questions as to whether the accused could be held guilty for possessing 30 kilograms of contraband Charas when out of 30 packets possessed by the accused sample was drawn from only one packet which, on examination, was found to be narcotic substance by the Chemical Examiner and that the sentence awarded to the accused was harsh and excessive in view of drawal of a sample only from one packet.

Waris Khan v. State 2006 SCMR 1051 and Muhammad Hashim v. State PLD 2004 SC 856 ref.

Muhammad Ilyas Khan, Advocate Supreme Court and Raja Sher Muhammad Khan, Advocate-on-Record (absent) for Petitioner.

2007 SCMR 1438

[Supreme Court of Pakistan]

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

Mst. SHAHNAZ BIBI----Petitioner

Versus

MUHAMMAD LIAQUAT alias KHITTA and 2 others----Respondents

Criminal Petition No.80 of 2007, decided on 13th March, 2007.

(On appeal from the judgment, dated 12-1-2007 passed by Peshawar High Court, Abbottabad Bench in Criminal Appeal No.85 of 2001).

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

----S. 302/34--Constitution of .Pakistan (1973), Art.185(3)---Appeal against acquittal---Ocular account was furnished by wife and son of the deceased who being inmates of the house were certainly natural witnesses, but the essential question for determination was regarding the time and manner the occurrence had taken place and identification of the assailants at the spot---Prosecution version regarding the time of death was contradicted by medical evidence which had strongly suggested that the occurrence had taken place during the night and the possibility that culprit was not identified in the dark, could not be ruled out---Enmity between the parties was admitted and interested witnesses could not safely be relied upon without independent corroboration, which was not available---Rule of corroboration, being rule of abundant caution, might not be necessarily applied in each case, but where direct evidence did not inspire confidence and was of doubtful character, Court must follow the rule of corroboration for safe administration of justice---Accused had earned double presumption of innocence and concurrent findings of two Courts did not require any interference by Supreme Court against their acquittal on the basis of partisan ocular testimony-- Leave to appeal was declined to complainant in circumstances.

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

----S. 302/34---Evidence---Rule of corroboration, applicability of---Rule of corroboration, being rule of abundant caution, may not be necessarily applied in each case, but in a case in which direct evidence is not confidence-inspiring or is of doubtful character, Court must follow the rule of corroboration for safe administration of justice.

Zulfiqar Khalid Maluka, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 13th March, 2007.

2007 SCMR 1442

[Supreme Court of Pakistan]

Present: Javed Iqbal, Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

CHIEF EXECUTIVE, AYUB MEDICAL INSTITUTION, ABBOTTABAD and another----Petitioners

Versus

Dr. WAQAR-UR-REHMAN QURESHI and 3 others----Respondents

Civil Petition No.233 of 2007, decided on 26th March, 2007.

(On appeal from the judgment, dated 1-12-2006 of the Peshawar High Court, Abbottabad Bench in Writ Petition No.339 of 2005).

North West Frontier Province Medical Institutions Rules, 2001---

----R. 10---Constitution of Pakistan (1973), Art. 185(3)---Repatriation to parent department---Probation period---Deputation abroad---Respondent was lecturer in. Khyber College of Dentistry and on 21-8-2000, he was provisionally appointed as Assistant Professor Dentistry in Ayub Medical College---Respondent was to undergo probation for a period of two years, which could be extended for another one year---On 11-1-2002, respondent availed ex-Pakistan leave without pay for a period of 730 days and went abroad but on 27-7-2002, Authorities of Ayub Medical College repatriated him to his parent department---Such act of the Authorities was set aside by High Court in exercise of Constitutional jurisdiction---Validity---No provision existed in law that period of probation could either be suspended or postponed or extended beyond the period of three years---Respondent was employee of Ayub Medical College, on completion of his three years of service, his deputation abroad was allowed by Ayub Medical College and no fault or default of respondent was found during the period of first three years of his service---Government employees already posted to Institution, under R.10 (1) of North West Frontier Province Medical Institutions Rules, 2001, would continue to work as civil servants till retirement, if they had not opted for absorption in service of the Institution---Before termination of service of respondent with Ayub Medical College and his repatriation to Government of North West Frontier Province, it was incumbent upon the Authorities to hold 911 inquiry to ascertain the fault, if any, committed by respondent---On the contrary, entire action was taken unilaterally without affording any opportunity of being heard which was not only against the principles of natural justice but also against the settled norms of service laws/rules prescribed for all Institutions of same nature through North West Frontier Province Medical Institutions Rules, 2001---Judgment passed by High Court was based on valid and sound reasons and was entirely in consonance with the law laid down by Supreme Court---Neither there was any misreading nor non-reading of material evidence or misconstruction of facts and law---Leave to appeal was refused.

Muhammad Munir Peracha, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 26th March, 2007.

2007 S C M R 1446

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Syed Jamshed Ali and Ghulam Rabbani, JJ

ATTA MUHAMMAD----Appellant

Versus

MAULA BAKHSH and others----Respondents

Civil Appeal No.874 of 2005, decided on 11th April, 2007.

(On appeal from the judgment, dated 14-6-2005 passed by Lahore High Court, Multan Bench, Multan in Civil Revision No.209-D of 1992).

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

----S. 42---Declaration, relief of---Scope---Relief of declaration is discretionary and plaintiff who seeks discretionary relief must come to court with clean hands.

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

----S. 42---Limitation Act, (IX of 1908), S.18---Declaration of title--­Limitation---Fraud---Failure to prove---Effect---Mutation of inheritance attested in year 1942 was assailed by plaintiffs in year 1988---Trial Court and Lower Appellate Court concurrently dismissed the suit and appeal filed by plaintiffs---High Court, in exercise of revisional jurisdiction, decreed the suit in favour of plaintiffs---Plea raised by defendant was that plaintiffs failed to establish that they were the descendants from the owner of the suit-land whose mutation of inheritance was assailed-- Validity---Two courts below found that the suit was barred by time but High Court by making a sweeping statement that there was no limitation in the cases of inheritance, had in fact, re-written the law of limitation---Present was not a case of inheritance between co-sharers because case of plaintiffs was that defendant was a stranger---No justification, factual or legal to overlook the delay of 46 years existed in assailing the mutation of inheritance by filing suit---Delay of 46 years existed adversely reflected on the bona fides of the claim of plaintiffs---Extension of limitation for a suit was provided for under S.18 of Limitation Act, 1908---Averment in the plaint regarding sharing of produce was found to be false and there was no specific averment to bring the case within S.18 of Limitation Act, 1908, therefore, suit was hopelessly barred by time---Even if law of limitation was not 'strict' senso applicable, delay and laches being wholly incompatible with exercise of discretion to grant declaration, the suit was rightly dismissed---Judgment and decree passed by High Court was set aside and those of Trial Court and Lower Appellate Court were restored---Appeal was allowed.

Ahmad Din v. Muhammad Shall and others PLD 1971 SC 762; Mst. Phaphan through L.Rs. v. Muhammad Bakhsh and others 2005 SCMR 1278 and Luqman and others v. Gul Muhammad and others 1984 .SCMR 63 ref.

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

----Preamble---Law of limitation---Object and scope---Public interest requires that there should be an end to litigation---Law of limitation provides an element of certainty in the conduct of human affairs---Statutes of limitation and prescription are thus statues of peace and repose---In order to avoid difficulty and errors that necessarily result from lapse of time, the presumption of coincidence of fact and right is rightly accepted as final after a certain number of years---Whoever wishes to dispute such presumption, must do so within that period otherwise his rights, if any, will be forfeited as a penalty for such neglect---Law of limitation is a law which is designed to impose quietus on legal dissensions and conflicts---Law requires that persons must come to court and take recourse to legal remedies with due diligence.

S.M. Tayyab, Senior Advocate Supreme Court for Appellant.

Abdul Sadiq Chaudhry, Advocate Supreme Court for Respondents.

Date of hearing: 11th April, 2007.

2007 S C M R 1451

[Supreme Court of Pakistan]

Present: Javed Iqbal and Ch. Ijaz Ahmed, JJ

ASIM KHAN and others----Petitioners

Versus

ZAHIR SHAH and others---Respondents

Civil Petition No.747-P of 2006, heard on 30th April, 2007.

(On appeal from the judgment/order, dated 11-10-2006 passed by the Peshawar High Court, Peshawar, in Writ Petition No.254 of 2006).

Constitution of Pakistan (1973)---

----Art. 185(3)---Civil service---Appointment letters, withdrawal of---Vested right---Principles of natural justice---Applicability---Domiciled candidates-Classification---Respondents secured their appointment regarding posts in question as PTC teachers after recommendations of Departmental Selection Committee duly constituted by competent authority---Later on the appointment letters were withdrawn by the authorities on the ground that respondents did not have valid domicile certificates of category "A"---High Court in exercise of constitutional jurisdiction restored the appointment letters of respondents---Validity--­Respondents had secured vested right, which right could not be taken or withdrawn without fulfilling the requirement of principles of natural justice---Order passed by the authority, withdrawing appointment letters being in violation of principles of natural justice, therefore, High Court was justified to accept their constitutional petition---Principles of natural justice must be read in each and every statute unless and until the same were excluded from the wording of the statute itself---Creation of classification among domiciled candidates was discriminatory---No infirmity or illegality in the judgment of High Court was found---Authorities failed to raise any question of public importance---Constitutional jurisdiction being equitable jurisdiction, Supreme Court declined to exercise its discretion in favour of authorities---Leave to appeal was refused.

Army Welfare's case 1992 SCMR 1652; Fazlur Rahman's case PLD 1964 SC 410; Faridsons' case PLD 1961 SC 537; Zakir Ahmed's case PLD 1965 SC 90; Pakistan and others v. Public-at-large and others PLD 1987 SC 304; Pakistan Chrome Mine's case 1983 SCMR 1208; Ahmad Hassan's case PLD 1992 Pesh. 1; Khan Bahadur's case 1992 CLC 395; Farrah Deedar's case 1986 MLD 2429; Shushma's case 1992 CLC 895; Murree Brewery's case PLD 1972 SC 279; Messrs Pak Saudi Fertilizer Ltd.'s case 2001 SCMR 777; Hudaibia Textile Mills' case 2001 SCMR 209; Rifat Parveen's case 1981 SCMR 1002; D.P. Joshi's case AIR 1955.SC 334; Gohar Masdood's case 2001 SCMR 1128; Farah Deedar's case 1986 MLD 2429; Nawab Syed Raunaq Ali's case PLD 1973 SC 236 and Muhammad Saifullah Khan's case PLD 1989 SC 166 ref.

M. Zahoor Qureshi, Advocate Supreme Court/Advocate-on­-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 30th April, 2007.

2007 SCMR 1456

[Supreme Court of Pakistan]

Present: Javed Iqbal, Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

MUZAFFAR HUSSAIN and others----Appellants

Versus

IFTIKHAR HUSSAIN and others----Respondents

Civil Appeals Nos.958 to 965 of 2002, and Cr.O.P. Nos. 40 to 42 of 2003, decided on 27th March, 2007.

(On appeal from the judgment, dated 1-6-2000 of the Lahore High Court, Lahore, passed in Writ Petition No.12/R of 2000).

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

----S. 2---Punjab Tenancy Act (XVI of 1887), S.114---Petitioners who were occupancy tenants from generations had alleged that Notified Officer assumed jurisdiction which did not vest in him to allot land in dispute and order passed by the authorities was illegal and even no notice was issued to them---Leave to appeal was granted by Supreme Court to consider the contentions of petitioners.

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

----S. 2---Punjab Tenancy Act (XVI of 1887), S.114---Allotment of land---Occupancy tenants---Entitlement---Notified Officer, jurisdiction of---Appellants were occupancy tenants over the land in question and were aggrieved of the allotment made by Notified Officer in favour of respondents---Order passed by Notified Officer was maintained by High Court---Validity---Provisions of S.114(2)(b), Punjab Tenancy Act, 1887 were capable enough to meet all such eventualities---Evacuee share in such land was 1/2 and occupancy tenant was considered as owner for the remaining half share in occupied land---Appellants were occupancy tenants and they were accommodated accordingly and half of the land was allotted to respondents-Such allotment could have been done only by Notified Officer as forums available in hierarchy of revenue law; were not concerned with the same---Notified Officer had rightly interpreted the provisions as contained in 5.114 of Punjab Tenancy Act, 1887---Respondents having preferential rights on account of having abandoned their agricultural land in India were entitled to allotment of land in question against their claim which was available for allotment--After satisfaction of their claim, appellants could approach the forum concerned for allotment of remaining land subject to all legal exceptions---Order passed by Notified Officer was rightly upheld by Judge in Chambers of High Court---Supreme Court declined to interfere with the judgment passed by. High Court---Appeal was dismissed.

Hakim Ali v. Ghulam Muhammad 1995 SCMR 549 and Zahoor Hussain v. Abdul Hamid 1991 SCMR 164 ref.

Yousaf Farooq, Advocate Supreme Court and Iqbal Ahmed Qureshi, Advocate-on-Record for Appellants.

Maqbdol Ellahi Malik, Senior Advocate Supreme Court for Respondents.

Date of hearing: 27th March, 2007.

2007 SCMR 1460

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Hamid Ali Mirza, JJ

MUHAMMAD AFZAL----Appellant

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, LAHORE through Secretary----Respondent

Civil Appeal No.1659 of 2006, decided on 1st March, 2007.

(On appeal from the judgment, of Lahore High Court, Lahore dated 19-7-2006, passed in Writ Petition No.18294 of 2004).

(a) Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976)---

----S. 12---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider; whether petitioner was entitled to incentive of advance increments upon acquisition of higher academic qualifications of Intermediate, B.A. and M.A., as per policy of Board.

(b) Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976)---

----S. 12---Rules---Implied applicability---Contention of authorities was that Provincial Government was controlling authority of the Board, therefore, all service Rules and Regulations applicable to the employees of Provincial Government would be impliedly applicable to employees of the Board---Validity---Unless Rules and Regulations of Provincial or Federal Government were specifically adopted by a statutory body controlled by such Government, the same could not be made applicable to employees of statutory body.

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

----Art. 22---Right of--Improving Educational qualification---Benefit of advance increment---Appellant improved his qualification and in terms of policy of the Board, applied for grant of advance increments---Board declined to grant benefit of advance increment on the ground that appellant improved his educational qualification without permission of competent authority---Validity---Right of education being an inalienable right of every person, no one could be denied such right---Notwithstanding the requirement of prior permission to appear in examination for official purposes, the improvement in educational qualification without permission of the concerned authorities might have no penal consequences to refuse the benefit of the scheme of grant of advance increment to an employee who had improved his qualification during service---Subject to fulfillment of criteria and other conditions, if any, appellant was entitled to grant of advance increment in terms of policy of Board---Appellant was wrongly denied benefit of advance increment---Appeal was allowed.

Muhammad Zahid Abbasi, Advocate Supreme Court for Appellant.

Ch. Muhammad Hussain, Additional Advocate-General, Punjab for Respondent No.2.

Date of hearing: 1st March, 2007.

2007 SCMR 1464

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Actg. C.J., Tassaduq Hussain Jillani and Nasir-ul-Mulk, JJ

TASNEEM ISMAIL and others----Appellants

Versus

Messrs WAFI ASSOCIATES and others----Respondents

Civil Appeal No.823 of 2000, decided on 4th April, 2007.

(Against the judgment/order, of the Lahore High Court, dated 11-5-1999 passed in F.A.O. No.74 of 1999).

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

----Ss. 12 & 35---Civil Procedure Code (V of 1908), O.XX, R.3---Rescission of contract--Decree of Court for specific performance of agreement--Extension of time for deposit of consideration---Scope--­Decree in a suit for specific performance is not a final decree so as to debar court from extending period fixed for depositing sale consideration---Such decree is in the nature of preliminary decree which partakes character of contract---Purchaser has to deposit purchase price and has to take other necessary steps for framing and execution of conveyance deed, while seller has to appear in court and sign conveyance deed---Such being so, the decree/contract continues to subsist unless it is rescinded by the court in terms of S.35 of Specific Relief Act, 1877---Extension of time is not an alteration or modification of a decree to be hit by O.XX, R.3 C.P.C.

Manicka Gounder v. Samikannu Gounder AIR 1967 Mad. 397; Amjad Malik v. Muhammad Saleem and others 1992 MLD 31; Bhujangrao Ganpati v. Sheshrao Rajaram AIR 1974 Born. 104; Shmt. Sarupi and others v. Har Gian and others AIR 1975 Punjab and Haryana 231 and Shabbir Ahmed and another v. Zahoor Bibi and others PLD 2004 SC 790 ref.

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

----Ss. 12 & 35---Agreement to sell---Decree for specific performance---Rescission of contract---Failure to deposit decretal amount---Extension of time--Suit was decreed in favour of plaintiff. on the basis of consent decree--Decree holder had transferred his rights to third person, therefore, the assignee and decree holder sought permission to deposit the decretal amount but Trial Court refused---High Court in exercise of appellate jurisdiction extended the period for deposit of decretal amount and allowed the assignee to deposit decretal amount but assignee failed to deposit the amount---Effect---Decree did not provide for dismissal of suit forthwith in the event of default, it had to precede an order of court in terms of S.35 of Specific Relief Act, 1877 and court still had discretion to extend time---Decree holder moved Trial Court for extension of time, which was wrongly refused and High Court rightly set aside the judgment of Trial Court and allowed application of plaintiff and assignee---Assignee defaulted in payment of purchase money, hence his case was squarely hit by S.35 (c) of Specific Relief Act, 1877 and contract merited rescission on such ground alone---Judgment and decree passed by High Court were set aside and suit filed by plaintiff was dismissed---Appeal was allowed.

Syed Ahmed Shah and 2 others v. Muhammad Yar and 6 others 1974 SCMR 191; Sirajud Din Banjmin through his Legal Heirs and another v. Haji Abdul Latif and 4 others 1983 SCMR 836; Saat Malook v. Rozi Khan 1979 SCMR 593; Ch. Muhammad Nawaz v. Ch. Rehmat Ali and another 1994 SCMR 349; Synthetic Chemicals Co. Ltd. In re: PLD 1988 Kar. 429; Begum Rashida Nawaz v. Ch. Muhammad Amin and 3 others PLD 1998 Lah. 503; Haji Abdul Hameed Khan v. Ghulam Rabbani 2003 SCMR 953; Corpus Juris Secundum Vol.81, pages 983 and 984; Dar Okaz Printing and Publishing Limited Liability Company v. Printing Corporation of Pakistan Private Limited PLD 2003 SC 808; Dr. Iftikhar Ahmed Zahid v. Mrs. Nilofer Akhtar and another 2004 SCMR 96; Abdul Hameed and others v. Settlement Authority and others 2004 SCMR 790; Mrs. Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189 and Shah Wali v. Ghulam Din. PLD 1966 SC 9831 ref.

S.M. Zafar, Senior Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Appellants.

Syed Sharifuddin Pirzada, Senior Advocate Supreme Court, Amir Alam Khan, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondent No.1.

Farooq Amjad Mir, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Applicants (in C.M.A. No.1954 of 2003).

Nemo for Respondent No.2.

Date of hearing: 4th April, 2007.

2007 S C M R 1478

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Ghulam Rabbani, JJ

MUHAMMAD ISHAQ----Appellant

Versus

MUHAMMAD SADIQ----Respondent

Civil Appeal No.1229 of 2001, decided on 19th September, 2006.

(On appeal against the order, dated 4-10-1999 passed by the Lahore High Court, Lahore in R.S.A. No.2 of 1979).

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

----S. 4---Civil Procedure Code (V of 1908), O.XXII, R.2---Constitution of Pakistan (1973), Art. 185 (3)---Leave to appeal was granted by Supreme Court to consider; whether right of pre-emption was heritable or otherwise; whether High Court failed to follow principles of law and facts enunciated by Supreme Court in judgments passed in cases titled Aziz-ur-Rehman v. Muhammad Nawaz, reported as PLD 1988 Supreme Court 384 and Muhammad Younas v. Khushal, reported as 1989 SCMR 69; and whether High Court was right in holding that after amendment in O.XXII, R.2, C.P.C. suit of pre-emption would not abate on the death of original pre-emptor.

Aziz-ur-Rehman v. Muhammad Nawaz PLD 1988 SC 384 and Muhammad Younus'v. Khushal 1989 SCMR 69 ref.

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

---Ss. 4 & 21---Right of pre-emption, exercise of---Principles--­Improving of status by pre-emptor---During pendency of suit, original pre-emptor died and his legal heirs were impleaded as pre-emptors---One of the sons of deceased pre-emptor with the permission of Court pursued the suit in his personal capacity also---Trial Court decreed the suit in favour of all legal heirs of deceased pre-emptor---Appeals filed by vendee were contested by the son only, and were concurrently dismissed by Lower Appellate Court and High Court---Validity---Pre-emptor who had no right on the date of sale could not improve his right after the sale, by inheritance as cause of action had already come into existence--- Subsequent qualification by inheritance could not vest the pre-emptor with superior status after accrual of cause of action---Pre-emption suit filed by such pre-emptor must fail as he lacked necessary qualification on the date of sale---High Court did not give weight to such pivotal/relevant points in the case---Deceased pre-emptor as well could not establish his subsisting title on the basis of decree palpably continued to have feeble and predatory right of pre-emption enforced---Son of deceased pre­emptor had no right on the date of sale and thereafter to pre-empt the same by inheritance, and he could not improve his qualifications to have such right, if any, enforced after the sale, accordingly---Judgments and decrees passed by the courts below were set aside and the suit was dismissed---Appeal was allowed.

Aziz-ur-Rehman v. Muhammad Nawaz PLD 1988 SC 384; Muhammad Younus v. Khushal 1989 SCMR 69 and Chhajju and others' case AIR 1947 All. 297 fol.

PLD 1975 Lah. 1205; 1976 SCMR 121; Faqir Ali Shah's case 133 PR 1907 p.636; Wajid Ali v. Shaban ILR 1909 Vol. 31 All. 623; Faiz Muhammad's case AIR 1944 Lah. 172 and Muhammad Younus v. Khushal Civil Revision No.115 of 1978 ref.

(c) Words and phrases---

----`Heritable"---Meaning.

Concise Oxford Dictionary Ninth Edition of 1995 edited by Della Thompson and Black's Law Dictionary (English Edition by Bryan A. Garner) ref.

Kh. Muhammad Farooq, Advocate Supreme Court for Appellant, Muhammad Munir Peracha, Advocate Supreme Court for Respondent.

2007 S C M R 1485

[Supreme Court of Pakistan]

Present: Rana Bhagwandas Actg. C.J. Tassaduq Hussain Jillani and Nasir-ul-Mulk, JJ

MUHAMMAD YOUSAF and others----Appellants

Versus

SAIN AKHTAR----Respondent

Civil Appeal No.1086 of 2004, decided on 17th April, 2007.

(On appeal from the judgment of the Lahore High Court, dated 25-1-2002 passed in Civil Revision No.373 of 1995).

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

----S. 21---Constitution of Pakistan (1973), Art. 185 (3)---Leave to appeal was granted by Supreme Court to consider; whether the High Court was legally competent and justified to extend period for deposit of part of pre-emption amount specifically directed by Trial Court to be deposited before a particular date and upheld by appellate forum.

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

----S. 21---Pre-emption suit---Decretal amount, non-deposit of---Extension of period---Self-operative default clause in decree---Suit filed by pre-emptor was decreed in his favour by Trial Court, subject to deposit of decretal amount within a specific date---Pre-emptor did not deposit full decretal amount, therefore, Lower Appellate Court dismissed the suit---High Court, in exercise of revisional jurisdiction allowed pre­emptor to deposit remaining decretal amount and suit was decreed---Plea raised by vendee was that High Court could not have extended the period for deposit of decretal amount----Validity---Explicit self-operative default clause existed which stipulated that if decree holder did not deposit sale consideration on or before a specified date, suit would be dismissed---Decree was passed on 22-7-1984, appeal against judgment passed by Trial Court was admitted to regular hearing on 30-8-1984---No stay order was issued against the decree---Judgment passed by High Court was neither based on correct appreciation of facts nor the law declared---Judgment and decree passed by High Court was set aside and that of Lower Appellate Court was restored and suit of pre-emptor stood dismissed---Appeal was allowed.

1975 SCMR 1426; Haji Nawab Khan v. Fazalur Rahman 1976 SCMR 502; 1997 SCMR 420; Muhammad Taj v. Subedar Muhammad Rasheed 1989 SCMR 505; Bhai Khan v. Allah Bakhsh 1986 SCMR 849; Nazir Ahmad v. Ghulama 1987 SCMR 1704; Dost Muhammad v. Nazar Hussain Khan 1984 SCMR 325; Muhammad Arshad v. Ch. Fazal Haq 1991 SCMR 2149; Khurshid Akbar v. Mian Manzur Ahmed 1982 SCMR 824; Muhammad Nawaz v. Muhammad Sadiq 1995 SCMR 105; Rehman­-ud-Din v. Sahibzada Jehanzeb 2004 SCMR 418 and Riaz Hussain v. Nazar Muhammad 2005 SCMR 1664 ref.

Ch. Muhammad Nawaz Sulehria, Advocate Supreme Court for Appellants.

Sardar M. Ishaq Khan, Senior Advocate Supreme Court for Respondent No.1.

Ch. Khan Muhammad Bajwa, Advocate Supreme Court for Respondent.

Date of hearing: 17th April, 2007.

2007 S C M R 1491

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Ghulam Rabbani, JJ

ABDUL REHMAN----Appellant

Versus

Haji GHAZAN KHAN----Respondent

Civil Appeal No.488 of 2003, decided on 27th September, 2006.

(On appeal against the judgment, dated 27-6-2002 passed by the Lahore High Court, Rawalpindi Bench in Civil Revision No.370 of 1995).

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

----S. 13---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider; whether it was a legal necessity that all witnesses of Talb-i-Muwathibat should have been examined by pre-emptor; and whether Courts below had erred in holding that Talb-i-Muwathibat was not made by pre-emptor in accordance with law.

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

---S. 96---Appellate Court---Scope---Appellate court is the final Court of fact and appeal is continuity of original proceedings before superior Tribunal.

Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94 rel.

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

---S. 13---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Right of pre­emption---Talb-i-Muwathibat---Proof---Solitary statement of pre­emptor---Concurrent findings of fact, by two courts below---Pre-emptor neither mentioned time, date and place in plaint where he made Talb-i-­Muwathibat nor plaint contained names of persons in whose presence Talb-i-Muwathibat was made---Pre-emptor, during evidence, disclosed the name of one witness in whose presence Talb-i-Muwathihat was made but that person was not produced before the court as witness---Trial Court decreed the suit in favour of pre-emptor but lower Appellate Court allowed the appeal and dismissed the suit---Judgment and decree passed by Lower Appellate Court was maintained by High Court---Validity---In order to satisfy judicial mind of court that immediate demand was made as prescribed, pre-emptor first needed to state in his pleadings, necessary/material particulars, such as date on which he received information, name of informer and names of those persons who constituted the sitting (Majlis) in which pre-emptor claimed to have received information, then to lead evidence in line with his pleading--- Pre-emptor had to seek corroboration to satisfy reasonably the judicial mind of court that Talb-i-Muwathibat was made by him enabling him to make other demand (Talb-i-Ishhad)---Failure to put informer in witness box raised a presumption that pre-emptor feared that the witness if examined could not stand test of cross-examination or that the witness would not support him or that his evidence would be against him---Supreme Court declined to interfere with concurrent findings of High Court and lower Appellate Court as the same did not suffer from any legal defect or infirmity---Appeal was dismissed.

Muhammad Mall Khan v. Allah Yar Khan 2002 SCMR 235 and Fazal Subhan and 11 others v. Mst. Sahib Jamala and others PLD 2005 SC 977 rel.

Muhammad Munir Peracha, Advocate Supreme Court for Appellant.

Gulzarin Kiani, Senior Advocate Supreme Court for Respondent.

2007 SCMR 1496

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Actg. C.J., Tassaduq Hussain Jillani and Nasir-ul-Mulk, JJ

ABDUL JABBAR----Appellant

Versus

THE STATE and others----Respondents

Criminal Appeal No.538 of 2000, decided on 26th April, 2007.

(On appeal from the judgment of the Lahore High Court, Lahore dated 20-7-1998 passed in Criminal Appeal No.275 of 1994).

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

----S. 302(a)---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider; whether lesser sentence in such-like case could be awarded, when case under Hudood Ordinance was got registered against deceased and her husband but they were acquitted upto the level of Shariat Appellate Bench of Supreme Court, therefore, it was a sufficient proof of the petitioner/complainant and deceased being husband and wife, in such circumstances the ground of sudden provocation or family honour would not arise at all.

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

----Ss. 302 & 304---Qatl-i-Amd---Punishment---Principles---Qatl-i-Amd is punishable with death as Qisas if proof in either of the forms specified in S.304 P.P.C. is available---In absence of such proof Qatl-i-Amd can be visited with punishment of death or imprisonment for life as Tazir under S.302(b), P.P.C. having regard to the facts and circumstances of the case.

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

----Ss. 304 & 309---Right of Qisas, waiver of---Principles---Adult sane Wali, under S.309, P.P.C. can waive his right of Qisas even without compensation but only if proof in terms of S.304 P.P.C. (for Qisas) is available against accused.

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

----Ss. 302(b), 309 & 338(E)---Criminal Procedure Code (V of 1898), S.345---Qatl-i-Amd---Punishment as Tazir---Compounding of offence--Principles-Conviction/sentence under Tazir can be compounded only if all heirs forgive the offender and relevant provisions for compounding such offences are S.338 (E), P.P.C. read with S.345, Cr.P.C. and not S.309, P.P.C.

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

----Ss. 302 (b) (c), 309 & 338(E)---Reappraisal of evidence---Qatl-i­-Amd---Punishment as Tazir---Grave and sudden provocation, principle of---Applicability---Partial compromise---Effect---Complainant and his wife contracted marriage against the wishes of the family of his wife---Both accused armed with guns in a broad-daylight, chased the victims who tried to take refuge in a nearby hotel but accused broke open the door and made repeated fires, as a result complainant was injured and his wife was murdered---During trial, only the parents of deceased forgave the accused and compounded the offence, thus Trial Court convicted the accused and sentenced them to 25 years of imprisonment---High Court found it to be a case of grave and sudden provocation, therefore, reduced the sentence to what they had already undergone---Validity---Case was that of partial compromise---Offence of Tazir under S.302 P.P.C. could be compounded only by the heirs of Victim---All heirs did not compound the offence but only parents of deceased had done so and not her husband---Accused having been tried and convicted as Tazir, they could be extended benefit of compromise only if all legal heirs had compounded the offence---High Court failed to appreciate that neither S.302(c) nor 5.309, P.P.C. which stipulated Afw by Wali were applicable as those would have been relevant only if evidence led trial and sentence awarded was for Qatl-i-Amd as Qisas---Offence of Qatl-i­-Amd having been proved against accused as Tazir and all heirs of victim having not compounded the offence, the accused ought to have been sentenced under S.302(b), P.P.C. to life imprisonment and not under S.302(c), P.P.C.---Deceased and complainant claimed to be husband and wife pursuant to a registered Nikah Nama, veracity of which was affirmed by Federal Shariat Court in judgment delivered subsequent to the occurrence---Motive alleged, weapons used, the manner of attack and place of occurrence reflected pre-meditation and planning both---Provocation was neither sudden nor grave---Ground of grave and sudden provocation taken by High Court to reduce sentence was not available to warrant award of lesser punishment---Judgment thus, was not sustainable---Supreme Court set aside the sentence awarded by High Court and restored that of Trial Court---Appeal was allowed.

Walayat v. The State 1998 PCr.LJ 111; Riaz Ahmed v. The State 1996 PCr.LJ 43; Manzoor Hussain and 4 others v. The State 1994 SCMR 1327; Muhammad Aslam v. Shaukat Ali 1997 SCMR 1307; Niaz Ahmed v. State PLD 2003 SC 635; Mohib Ali v. The State 1985 SCMR 2055; Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 and Abdul Zahid and another v. The State 2000 SCMR 406 ref.

Ms. Asma Jahangir, Advocate Supreme Court for Appellant.

Muhammad Ilyas Siddiqui, Advocate Supreme Court and Ch. Akhtar Ali Advocate-on-Record for Respondents Nos.2 and 3.

Ch. Munir Sadiq, Deputy P.G. Punjab for the State.

Date of hearing: 26th April, 2007.

2008 SCMR 1498

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Muhammad Nawaz Abbasi, JJ

ZAHID HUSSAIN alias ZAHIDA----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.455 of 2002, decided on 10th February, 2005.

(On appeal from the judgment, dated- 22-10-2002 passed by Lahore High Court, Multan Bench, Multan in Criminal Appeal No.29 of 2002(A.T.A.).

Penal Code (XLV of 1860)---

----Ss. 302/34, 324/34 & 353/34---Anti-Terrorism Act (XXVII of 1997), S.7---Constitution of Pakistan (1973.), Art.185(3)---No describable contradiction and discrepancy in the 'evidence or lacuna in the prosecution case creating doubt qua the participation and identification of the accused and his guilt, was available on the record---Material facts determining the guilt of accused beyond doubt had been established---Witnesses being members of police force having been attacked while on patrol duty in the area, their presence at the spot was quite natural and they had no personal reason or motive against the accused to substitute him with ' the unknown culprit on their own or at the instance of their superiors---Witnesses had consistently supported the prosecution case as set up in the F.I.R. and without any omission or addition they had categorically stated that the accused and his companions while reaching at the scene armed with kalashnikovs opened firing at the police officials as a result of which an A.S.-I. and a constable lost their lives whereas the complainant and a constable luckily survived---Direct and natural evidence of injured witnesses had sufficiently established the charge against the accused---Leave to appeal was refused to accused in circumstances.

M. Zaman Bhatti, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 10th February, 2005.

2007 SCMR 1510

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Syed Jamshed Ali and Ghulam Rabbani, JJ

MUHAMMAD ANWAR and another----Appellants

Versus

DARUL ULOOM GHAUSIA HANFIA MOHALLA DHABWALA----Respondent

Civil Appeal No.585 of 2004, decided on 12th April, 2007.

(On appeal from the judgment, dated 23-6-2003 passed by the Lahore High Court, Lahore in R.S.A. No.3 of 1999).

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Limitation Act (IX of 1908), Arts.136, 142 & 144---Declaration of title and recovery of possession---Limitation--­Computation---Adverse possession---Scope---Suit-land was allotted to plaintiff in year, 1962 and suit was filed in year, 1981---Trial Court as well as Lower Appellate Court concurrently dismissed the suit and appeal, being barred by limitation---High Court allowed second appeal and decreed the suit in favour of plaintiff---Validity---Suit Was based on title to which Art.144 of Limitation Act, 1908 was applicable---Period of 12 years would start from the date when possession of defendant had become adverse to plaintiff---Suit based on possessory title was governed by Art.142 of Limitation Act, 1908, while Art.144 of Limitation Act, 1908, governed suit based on proprietary title---Possession for any length of time would not be adverse unless it was open, hostile and notorious to the knowledge of real owner---Except passing reference of Qabza Mukhalfana, based on possession for number of years, no such plea was raised that such possession amounted to an act of ouster to the, knowledge of the real owner---Disputed property being evacuee vested in the custodian and therefore, plea of continuous possession was not sustainable because plea of adverse possession was not available against the Custodian till the property lost its character of being evacuee---Supreme Court declined to interfere with the judgment and decree passed by High Court---Appeal was dismissed.

Moulvi Noor Muhammad v. Sheikh Abdul Qadeem 1995 SCMR 522; Saw En Hoke v. Ma Po Yin and others AIR 1934 Rang. 223 and Official Assignee of the High Court of. West Pakistan, Karachi Bench, Karachi v. Muhammad Hussain and 28 others PLD 1978 Kar. 27 ref.

M. Munir Peracha, Advocate Supreme Court for Appellants.

Zulfiqar Khalil Maloka, Advocate Supreme Court for Respondent.

Date of hearing: 12th April, 2007.

2007 S C M R 1513

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

Sh. MUHAMMAD IQBAL----Petitioner

Versus

Syed ASIM HASSAN and another----Respondents

Criminal Petition No.70 of 2007, decided on 28th March, 2007.

(On appeal from the order, dated 9-2-2007 of the Lahore High Court, Rawalpindi Bench in Criminal Miscellaneous No.1430/B of 2007).

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/324/452/34---Constitution of Pakistan (1973), Art.185(3)---Cancellation of bail, refusal of---Accused was physically handicapped and according to his medical report the ailment which appeared to be somewhat serious could be fatal to his life---According to the Medical Board accused was still disoriented and he was unable to convey himself and speak properly---High Court had rightly granted bail to the accused on medical ground and no case for cancellation of bail was made out---Leave to appeal was declined to the complainant by Supreme Court accordingly.

Faqirullah v. Khalil-uz-Zaman and others 1999 SCMR 2203 distinguished.

Peer Mukaram-ul-Haq v. National Accountability Bureau (NAB) through Chairman and others 2006 SCMR 1225 ref.

Sheikh Zamir Hussain, Advocate Supreme Court for the Petitioner.

Dr. Babar Awan, Advocate Supreme Court for Respondent No.1.

Ms. Yasmeen Sehgal, D.P.G. along with Muhammad Riaz, S.-I. for Respondent No.2.

2007 S C M R 1519

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad and Raja Fayyaz Ahmad, JJ

ZAHOOR AHMED----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.85 of 2006, decided on 17th April, 2007.

(On appeal from the judgment, dated 15-2-2006 of the Lahore High Court, Bahawalpur Bench Bahawalpur passed in Criminal Appeal No.62 of 2002 and Murder Reference No.33 of 2002).

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

----S. 302---Reappraisal of evidence---Substitution---Scope---Blood relation does not spare real culprit to involve innocent person in the case.

(b) Criminal Trial---

---Prosecution evidence---Not essential for prosecution to produce each of the cited witnesses at trial.

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

---S. 302(b)---Criminal Procedure Code (V of 1898), S.340(2)---of Pakistan (1973), Art.185(3)---Reappraisal of evidence--- Natural witnesses---Specific defence plea---Both the parties were closely related to each other---Trial Court having found ocular account corroborated by medical evidence, recovery of weapon of offence and motive part of prosecution, convicted the accused and awarded him death penalty, which was maintained by High. Court---Validity---Accused did not come forward to make statement on oath within the purview of S.340(2), Cr.P.C., nor produced any evidence in defence in support of specific defence plea---Nothing was available on record to suggest that defence plea was true, reasonable or even probable---Motive part of prosecution case, as set up in F.I.R. got support from the testimony of ocular account of complainant---No mitigating circumstance was spelt out from evidence available on record to which exception could be taken and lesser punishment of life imprisonment could be imposed---Entire evidence available on record was correctly scrutinized, assessed and appraised in its true perspective by both the courts, which excluded all reasonable hypothesis of innocence of accused---Leave to appeal was refused.

Raja Mehmood Akhtar, Advocate Supreme Court for Petitioner.

Ms. Yasmin Sehgal, Deputy Prosecutor-General for the State.

Date of hearing: 17th April, 2007.

2007 S C M R 1525

[Supreme Court of Pakistan]

Present: Javed Iqbal and Raja Fayyaz Ahmad, JJ

Haji ABDUL HAQ and others----Appellants

Versus

PROVINCE OF PUNJAB and others----Respondents

Civil Appeal No.753 of 2002, decided on 23rd April, 2007.

(On appeal from the judgment, dated 14-3-2002 of the Lahore High Court, Lahore passed in Writ Petition No.162 of 1971).

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

----S. 17---Letter No.1841-C, dated 28-4-1932---Exchange of State land with private land---Scope---Past and closed transaction---Effect---Land regarding which proprietary rights were granted in favour of appellants was got exchanged by them with State land in possession of Agriculture Department---High Court, in exercise of Constitutional jurisdiction set aside the order of exchange passed. by the authorities in favour of appellants---Validity---Order of exchange was passed by Commissioner in casual and cursory manner without diligent application of mind by ignoring the fact that State land could not have been exchanged with private land proprietary rights whereof were obtained by appellants about thirteen years back and mutations were also attested in their favour and duly registered in Register Haqdaran Zamin---Closed and past transactions could not have been reopened by the Commissioner having no locus standi whatsoever which amounted to misuse and abuse of authority never conferred upon him---Commissioner had violated the instructions contained in letter No.1841-C, dated 28-4-1932, which made it clear that once proprietary rights had been acquired in a grant, no application for exchange could be entertained---If the allocation of land in favour of appellants was not by way of grant, even then State land pertaining to Agriculture Department could not have been transferred with private land, proprietary rights whereof had been conferred upon the appellants-Commissioner had ignored that only State land could be exchanged for State land and therefore, order passed by him was in violation of S.17 of Colonization of Government Lands (Punjab) Act, 1912---Supreme Court directed the authorities to hand over the possession of land originally allocated to appellants and appellants were directed to vacate the possession of State land---Appeal was disposed of accordingly.

Syed Najamul Hassan Kazmi, Advocate Supreme Court for Appellants.

Raja Saeed Akram, Assistant Advocate-General and Fayyaz Ahmad, Secretary Agriculture for Respondents Nos.1 to 3.

Date of hearing; 1st March, 2007.

2007 SCMR 1531

[Supreme Court of Pakistan]

Present: Javed Iqbal, Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ

ALI MUHAMMAD----Appellant

Versus

MUHAMMAD BASHIR----Respondent

Civil Appeal No.1843 of 2001, decided on 23rd January, 2007.

(On appeal from the judgment, dated 29-2-2000 of the Lahore High Court, Lahore in R.F.A. No.114 of 1998).

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

----Art. 185(3)---Islamic Law---Pre-emption---Leave to appeal was granted by Supreme Court to consider; whether in suits filed under Islamic Law, there was no requirement of proving Talb-i-Muwathibat; and whether Talb-i-Ishhad in presence of two witnesses only, was required to be proved and in such a case whether requirements of making the same through notice attested by two witnesses had been dispensed with and pre-emptor led evidence to prove Talb-i-Ishhad in presence of two witnesses which had been ignored on erroneous assumption of law that Talb-i-Muwathibat and Talb-i-Ishhad were required to be proved and the latter too through registered notice attested by two truthful witnesses.

(b) Islamic Law---

----Pre-emption right, exercise of---Requisite Talbs---Proof---Suit was filed in year 1990, during the interregnum when no law of pre-emption was in field---Trial Court as well as High Court concurrently dismissed the suit and appeal filed by pre-emptor on the ground that requisite Talbs were not proved in accordance with the injunctions of Islam---Validity--- Performance of requisite Talbs were mandatory and non-performance of any of them would result in dismissal of suit---Out of two witnesses of Talb-i-Ishhad, only one witness was examined which established that Talb-i-Ishhad was not performed in accordance with law---Even neither the time nor particulars, such, as date and place had been specifically mentioned by pre-emptor in the plaint claiming the right of pre-emption on the basis of being co-sharer in the property---Supreme Court declined to interfere with the judgment and decree passed by High Court---Appeal was dismissed.

Government of N.-W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 and Mian Pir Muhammad v, Faqir Muhammad (deceased) through L.Rs. and others C.A. No.1951 of 2000 rel.

Muhammad Hussain Awan, Advocate Supreme Court for Appellant.

Ch. Riasat Ali, Advocate Supreme Court for Respondent.

Date of hearing: 23rd January, 2007.

2007 S C M R 1535

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed and Hamid Ali Mirza, JJ

MUHAMMAD WARIS----Petitioner

Versus

THE STATE and another----Respondents

Criminal Petition No.87 of 2007, decided on 6th April, 2007.

(On appeal from the judgment, dated 24-1-2007 of the Peshawar High Court, Peshawar passed in Jail Criminal Appeal No.299 of 2005).

(a) Penal Code (XLV of 1860)-

----Ss. 302, 324 & 337---Constitution of Pakistan (1973), Art.185(3)--- F.I.R. was promptly lodged keeping in view the odd hour of the night---Testimony of the injured witness and the complainant, relied upon as ocular, was strongly supported by the post-mortem report of the deceased and the medico-legal report of the injured witness---Inmates of the house at odd hours of the night were the most natural witnesses whose presence could not be doubted---Prosecution had given a motive to kill while 'there was no motive at all for false implication of accused---Co-accused brother of accused was an absconder even today---Concurrent finding of the two Courts did not suffer from any mis-appreciation or non-appreciation of evidence, warranting interference by Supreme Court---Leave to appeal was declined to accused in circumstances.

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

----S. 154---Information in cognizable cases---No hard and fast rule exists as to who among those claiming to be eye-witnesses should or must lodge the report--Anyone of them would be equally competent.

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

---Ss. 302, 324 & 337---Appreciation of evidence---Motive--- Principles---Where the assailants stand strongly connected with the commission of offence, the proof or non-proof of motive becomes irrelevant.

Malik Anwar-ul-Haq, Advocate Supreme Court with Mehr Khan Malik Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 6th April, 2007.

2007 S C M R 1539

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed and Hamid Ali Mirza, JJ

MUHAMMAD AKRAM----Appellant

Versus

THE STATE and others----Respondents

Criminal Appeal No.146 of 2001, decided on 17th April; 2007.

(On appeal from the judgment/order, dated 12-10-2000 passed by the Lahore High Court, Multan Bench in Criminal Appeal No.115 of 1994 and Criminal Revision No.96 of 1994).

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

----S. 324---Constitution of Pakistan (1973), Art.185(3)---High Court had not applied S.34, P.P.C. only on the ground that it might have been a case of sudden flare up---Leave to appeal was granted to .complainant to consider that in the presence of positive evidence could a judgment be given on conjectures.

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

----Ss. 324 & 304 Part-II/34---Appraisal of evidence---Accused along with the principal co-accused, both armed with "Chhuris", came to the spot when principal co-accused gave a fatal blow to the deceased and the accused gave an injury to the deceased on his buttock---Co-accused had been acquitted on the basis of compromise with the legal heirs of the deceased---Deceased had died or. account of the said injuries---Incident took place initially all of a sudden on account of minor dispute of electric connection, but then the accused came fully prepared along with co-accused with common intention to take revenge from the deceased and, .thus, he was vicariously liable for the murder of the deceased---High Court had erred in law to convict the accused under S.324, P.P.C.---Accused was consequently convicted under section 304 . Part-II/34, P.P:C. (old) and sentenced to seven years' R.I. in circumstances.

Ghulam Sikandar's case PLD 1985 SC 11; Inayat's case PLD 1961 Lah. 195; Shahadat Khau's case PLD 1969 SC 158; J.M. Desai's case AIR 1960 SC 889; Banwarilal's case AIR 1956 All. 341; Majeed's case 1971 SCMR 693; Imam Bakhsh's case. PLD 1983 SC 35; Amir's case 1987 SCMR 270; Mahbub Shah's case AIR 1945 PC. 118; Hayat's case .PLD 1957 SC (Pak.) 207; Bahar's case PLD 1954 FC 77; Seraj Mia's case 1969 SCMR 490; Muhammad Arshad's case PLD 1996 SC 122; Muhammad Siddiqui's case 1993 SCMR 2114 and Khushi Muhammad's case 1969 SCMR 599 ref..

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

----S. 324---Constitution of Pakistan (1973), Art.185---Appeal against acquittal and appeal 'against conviction---Reappraisal of evidence---Different parameters and principles exist to reappraise the evidence qua conviction awarded by the Courts below to the accused and qua his acquittal by the lower Courts, as laid down by Supreme Court.

?

Ghulam Sakindar's case PLD 1985 SC 11 ref.

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

----S. 34---Acts done by several _persons in furtherance of common intention---Applicability---Where knowledge as well as intention are shared, S.34, P.P.C. applies---Ingredients of S.34, P.P.C. embody participation of accused in some action with the common intention of committing a crime---Once such participation is established, 5.34; P.P.C. is at once attracted.

Inayat's case PLD 1961 Lah. 195; Shahadat Khan's case PLD 1969 SC 158; J.M. Desai's case AIR 1960 SC 889; Banwarilal's case AIR 1956 All. 341; Majeed's case 1971 SCMR 693 and Imam Bakhsh's case PLD 1983 SC 35 ref.

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

----S. 34---Acts done by several persons in furtherance of common intention---Determination of the mention of a person qua the commission of an offence through positive affirmative evidence, is a very rate phenomenon---Intention, generally speaking, is to be gathered from the conduct of the person and the attending circumstances.

Bahar's case PLD 1954 FC 77 ref.

Sh. Khizar Hayat, Advocate Supreme Court for Appellant.

M. Ismail Qureshi, Advocate Supreme Court for Respondents Nos.2 and 3.

Mrs. Yasmin Sahgal, Deputy Prosecutor-General for the State.

Date of hearing: 17th April, 2007.

2007 S C M R 1546

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

Ch. BASHARAT KARIM----Petitioner

Versus

MUHAMMAD ISHFAQ CHANDOOR and another----Respondents

Criminal Petition No.81 of 2007, decided on 6th April, 2007.

(On appeal from the judgment, dated. 6-2-2007 of the Lahore High Court, Rawalpindi Bench in Criminal Miscellaneous No.624/B of 2006).

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

----S. 498---Pre-arrest bail---Principles---Bail before arrest can be granted when the arrest of accused is with ulterior motive, mala fide or due to false implication apparent on the face of record---Political rivalry is also an ingredient for the grant of pre-arrest bail.

Murad Khan v. Fazal-ur-Rehman and another PLD 1983 SC 82 ref.

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

---S. 497(5)---Penal Code (XLV of 1860), Ss.420/467/471---Constitution of Pakistan (1973), Art.185(3)---Cancellation of pre-arrest bail, refusal of---Signatures of accused on the agreement to sell the house were found to be forged by the Handwriting Expert---Suit with regard to some controversy was also pending adjudication in a civil court---Arrest of accused would be with ulterior motive and would cause irreparable injury to his reputation and liberty---Pre-arrest bail granted to accused was not cancelled in circumstances and leave to appeal .was refused accordingly.

Murad Khan v. Fazal-ur-Rehman and another PLD 1983 SC 82; Jamaluddin v. The State 1985 SCMR 1949 and Meeran Bux v. The State and another PLD 1989 SC 347 ref.

G.N. Gohar, Advocate Supreme Court/Advocate-on-Record for Petitioner.

Tariq Mahmood, Senior Advocate Supreme Court for Respondent No.1

Ch. Munir Sadiq, D.P.G.. Punjab for Respondent No.2 (State).

2007 S C M R 1549

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed and Hamid Ali Mirza, JJ

GHULAM MURTAZA and another----Appellants

Versus

MUHAMMAD AKRAM and others----Respondents

Criminal Appeals Nos.498 and 499 of 2000,, decided on 25h April, 2007.

(On appeal from the judgment, dated 25-4-2000 of the Lahore High Court Rawalpindi Bench, Rawalpindi, passed in Criminal Appeal No.45 of 1995 and Criminal Revision No.37 of 1995).

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Enhancement of sentence, refusal of---Accused had served out the sentence of imprisonment for life awarded to him and his appeal had become infructuous---Prosecution had suppressed the injuries of the accused in the F.I.R.---Accused had given only one Chhuri injury to the deceased and did not repeat the same---Said factors had cumulatively made out a case for mitigation of sentence---No misreading or non-reading of evidence on a very substantial point resulting in miscarriage of justice, was available calling for interference by Supreme Court---Trial Court and High Court were justified to award life imprisonment to accused---Appeal was dismissed in circumstances.

Muhammad Iqbal's case 1994 SCMR 1928; Ghulam Sikandar's case PLD 1985 SC 11; Ansar Ahmed Khan Bargi's case 1993 SCMR 1660; Muhammad Arshad's case PLD 1996 SC 122 and Muhammad Akram's case 1999 SCMR 52 ref.

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---Interference by Supreme Court---Principles---Presumption of innocence of the accused with the acquittal, becomes double, one that till found guilty he is innocent, and two that after his trial a Court below has confirmed the assumption of his innocence; unless all the grounds on which ,High Court had purported to acquit the accused were not supportable from the evidence on record, Supreme Court would be reluctant to interfere, even though upon the same evidence it may be tempted to come to a different conclusion; unless the

conclusion recorded by a Court below was such that no reasonable person would conceivably reach the salve, Supreme Court would not interfere; unless the judgment of acquittal is perverse and the reasons therefor are artificial and ridiculous, Supreme Court would not interfere and Supreme Court would interfere in exceptional cases on overwhelming proof resulting in conclusive ,and irresistible conclusion, and that too with a view only to avoid grave miscarriage of justice and .for no other purpose.

Muhammad Iqbal's case 1994 SCMR 1928 and. Ghulam Sikandar's case PLD 1985 SC 11 ref.

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---Case of accused to some extent was at par with that of co-accused who had been acquitted on the basis of same evidence---Reasons given by High Court in extending benefit of doubt to accused were neither irrelevant nor extraneous to record---Reappraisal of evidence did not reveal any infirmity, illegality or miscarriage of justice in the impugned judgment---Medical evidence might confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence, but it would not connect the accused with the commission of the crime---Considerations on which acquittal of accused was based were well grounded and discretion .exercised by High Court was in conformity with the accepted principles of criminal justice---Appeal was dismissed accordingly.

Muhammad Luqman v. State PLD 1970 SC 10; Machia's case PLD 1976 SC 695 and Muhammad Iqbal's case 1994 SCMR 1928 ref.

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

----S. 302(b)---Appreciation of evidence---Medical evidence---Corroboration---Medical evidence may confirm the ocular evidence with regard to seat of injury, nature of injury, kind of .weapon used in the occurrence, but it would not connect the accused with the commission of the crime.

Machia's case PLD. 1976 SC 695 and Muhammad Iqbal's case 1994 SCMR 1928 ref.

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

---S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Sentence, enhancement of---Supreme Court sparingly exercise its power to enhance the sentence and sentence be enhanced only in cases where failure to enhance the sentence would lead to a serious miscarriage of justice.

Malik Rab Nawaz Noon, Advocate Supreme Court for Appellants (in Criminal Appeal No.498 of 2000).

M. Javed Aziz Sindhu, Advocate Supreme Court for Appellants (in Criminal Appeal No.499 of 2000).

Muhammad Munir Peracha, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents (in Criminal Appeal No.498 of 2000).

Malik Rab Nawaz Noon, Advocate Supreme Court for Respondent (in Criminal Appeal No.499 of 2000).

Ch. Munir Sadiq, Deputy Prosecutor-General for the State (in both cases).

Date hearing: 25th April, 2007.

2007 S C M R 1556

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Falak Sher, JJ

MUHAMMAD JAMSHED----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.118 of 2007, decided on 28th May, 2007.

(On appeal from the judgment, dated 26-3-2007 of the Peshawar High Court D.I. Khan Bench in Criminal Appeal No.20 of 2006).

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

----S. 5(2)---Penal Code (XLV of 1860), S.161---Constitution of Pakistan (1973), Art.185(3)---Accused while serving as Reader in the Court of Judicial Magistrate had demanded Rs.1,500 from the complainant for getting the surety bonds attested from the Court in a bail granted to the brother of the complainant---Accused. had kept the bail bond pending on one pretext or the other---Senior Civil Judge on the directions of District and Sessions Judge conducted the raid and secured tainted money along with the file containing_ the bail bond and three photo copies of NIC of sureties and identifier---Defence plea that accused had received the amount as loan given by him, had shown that the tainted amount was recovered from him---Trial Court as well as High Court had deeply scrutinized the entire evidence and attended to all the material aspects of .the case, which did not suffer from any misreading or non-reading of the evidence---No illegality or infirmity could be pointed out in the impugned judgment---Leave to appeal was refused to accused in circumstances.

(b) Administration of criminal justice---

----Principle---While deciding criminal cases the circumstances of each case are to be examined independently, as the facts of one case differ from the facts of the other case.

Abdul Karim Khan Kundi, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioner.

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

Date of hearing: 28th May, 2007.

2007 S C M R 1560

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khart, Ch. Ijaz Ahmed and Hamid Ali Mirza, JJ

REHMAT DIN and others----Petitioners

Versus

Mirza NASIR ABBAS and others----Respondents

C.M.A. No.683 of 2007 in C.A. No.2568 of 2001, decided on 8th May, 2007.

(On appeal from the judgment, dated 15-11-2000 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Civil Revision No.37-D of 1988).

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

---Art. 185---Dead person, appeal/petition against---Non-filing of rectification application by appellant/petitioner---Effect---No appeal/ petition could be filed against dead person as same would be nullity.

Partap Chand v. Krishna Devi AIR 1988 Delhi 267 rel.

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

---Art. 185---Civil Procedure Code (V of 1908), O.I. R.10---Appeal/petition against five respondents, out of whom two had died before its filing---Effect---Name of dead respondents could be struck off under O.I, R.10, C.P.C.

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

---S. 5---Delay, condonation of---Discretion of Court to condone or not to condone delay after its satisfaction that there was sufficient cause for its condonation.

(d) Discretion---

----Court not vested with power to exercise discretion arbitrarily---Principles.

It is the duty and obligation of Court to exercise its discretion keeping in view the principle of equity and fairplay in judicial manner and has no power to exercise discretion arbitrarily.

Kanshi Ram's case AIR 1932 Lah. 183; Kishan Chand's case AIR 1942 Lah. 94; Arura's case AIR 1947 Lah. 76 and Badri Prasad's case 1933 All. 294 rel.

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

----Preamble---Object of Limitation Act, 1908 was to help vigilant and not indolent.

(f) Supreme Court Rules, 1980---

----O. XV, R.5---Dismissal of appeal for non-prosecution---Application for restoration of appeal with delay of 621 days--Source of knowledge qua such dismissal not mentioned in application for condonation of delay---Effect---Such conduct of applicant would amount to concealment of material facts from court---Such fact alone would be sufficient not to exercise equitable jurisdiction/discretion in his favour.

(g) Supreme Court Rules, 1980---

----O. XV, R.5---Dismissal of appeal for ,non-prosecution---Application for restoration of appeal with delay of 621 days---Source of knowledge qua such dismissal not mentioned in application for condonation of delay---Effect---Such conduct of applicant would amount to concealment of material facts from court---Such fact alone would be sufficient not to exercise equitable jurisdiction/discretion in his favour---Name of applicants' counsel was mentioned in cause list of relevant date---Respondent, after granting leave to appeal had made application for dismissal of appeal for its filing against dead persons---Petitioners had not replied such application, which showed that they after granting leave had not contacted their counsel---Petitioners had failed to explain delay of each day---Petitioners'' plea to have come to know of dismissal of appeal through friend three months later would not be a ground to condone delay of 84 days---Vested rights had accrued in favour of respondent by expiry of time---Supreme Court dismissed application for restoration of appeal as time-barred.

Badri Prasad's case 1933 All. 294 rel.

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

----S. 5---Supreme Court Rules, 1980, O.XV, R.S---Delay, condonation of---Expiry of limitation would vest a person with a valuable right, which could not be taken away by condoning delay---Negligence regarded as human would be condonable, but not gross negligence---Court must demand strict proof of sufficient ,cause for each day of delay---Sufficient cause could be ascertained from contents of application---Involvement of an important point in a case would not allow court to exercise. its discretion in an arbitrary way to override provisions of Limitation Act, 1908 and Supreme Court Rules, 1980---Principles.

The courts have been lenient and have been condoning some negligence i.e. negligence to the extent to which it is regarded as human, but gross negligence had never been condoned, but courts had always been strict in demanding proof of sufficient cause for every day, which expired after the period of limitation.' This eau be ascertained only from the contents of application.

Law of limitation is to be construed strictly, coupled with the maxim that each day of delay has to be explained by the party concerned. Where long period of delay has not been explained, then, application would merit dismissal as time-barred.

Even if an important point is involved in a case, that would not, in any case, allow the Court to use its discretion in arbitrary way to override the provisions of Limitation Act, 1908 and Supreme Court Rules, 1980.

Expiry of limitation vests a person with a valuable right. It cannot be taken away by condonation of delay. It is a well-known maxim "delay defeats equities", and the words of Lord Camdan "a Court of equity has always refused its aid to stale demands, where a party has slept over upon his rights and acquiesced for a great. length of time".

Muhammad Younis Bhatti, Advocate Supreme Court for Petitioners.

Abdul Baseer Qureshi, Advocate Supreme Court for Respondents.

Date of hearing: 8th May, 2007.

2007 S C M R 1566

[Supreme Court of Pakistan]

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

MUHAMMAD ZARAT end others----Appellants

Versus

AKBAR ALI through L.Rs. and others----Respondents

Civil Appeal No.317 and Civil Petition No.784 of 2001, decided on 7th March, 2007.

(On appeal from the judgment, dated 20-2-2001 of the Lahore High Court, Lahore passed in Regular Second Appeals Nos.37 and 82 of 1988).

Land Reforms Regulation, 1.972 (M.L.R. 115)---

----Para. 25(3)(d)---Punjab Pre-emption Act (1 of 1913), 5.15---Superior right of pre-emption---Doctrine of sinker---Applicability---Out of two vendees only one was tenant on the suit-land while the other joined him and both purchased the suit-land jointly---Trial Court decreed the suit in favour of pre-emptors which decree was maintained by High Court in second appeal---Plea raised by vendees was that principle of sinker was not applicable to the suits filed under M.L.R.115---Validity---Tenant-had been granted a superior right of pre-emption, under para.25(3)(d) of M.L.R. ,115, regarding land under his tenancy, no more and no less---Only difference was that if a tenant had exercised such right as pre-emptor, he would resort to Revenue Court which to all intents and purposes, would exercise. the powers of a Civil Court---Such superior light was to be read impliedly as part of S.15 of Punjab Pre-emption Act, 1913---So far as remaining principles of pre-emption, like limitation, waiver sinker were concerned, those were applied to a tenant as well, whether emanating Prom text lam or from the case-law---Tenant, therefore, if defendant, could not escape from the clutches of-the principle of sinker---High Court had rightly noted that tenant joined a Stranger with him, therefore, he had to sink with that stranger---Both having purchased the land in equal share and both being co-sharers in each and every inch of the laud, the transaction was not divisible so as to save the share of tenant---Supreme Court declined to interfere with the judgment and decree passed by High Court---Appeal was dismissed.

Malhi Khan's case PLD 1991 SC 824 and Muhammad Khan's case PLD 1981 SC 155 ref.

Kh. Muhammad Farooq, Senior Advocate Supreme Court for Appellants/Petitioners (in both cases).

Mian Allah Nawaz, Advocate Supreme Court for Respondents (in both cases).

Date of hearing: 7th March, 2007.

2007 S C M R 1569

[Supreme Court of Pakistan]

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

SUNRISE TEXTILES LIMITED through Ex-Managing Director----Petitioner

Versus

CRESCENT COMMERCIAL BANK LIMITED and others----Respondents.

Civil Petition No.401 of 2007, decided on 7th May, 2007.

(On appeal from the judgment, dated 12-4-2.007 of the Lahore High Court, Lahore passed in Writ Petition No.418 of 2005).

National Accountability Ordinance (XVIII of 1999)---

----Ss. 5(r), 25-A & 31-D---State Bank of Pakistan BPD Circular No.29, dated 15-10-2002---Constitution of Pakistan (1973), Art.185(3)---Wilful default---Determination---Reconciliation Committee---Circular. No.29 issued by State Bank of Pakistan---Petitioner-Company had already been would up and suit for recovery of loan was decreed in favour of Bank---National Accountability Bureau, on receipt of Reference from Governor State Bank of Pakistan, had riled Reference in Accountability Court .against Director of the petitioner-Company---Plea raised by Director of the company was that prosecution under S.31-D of National Accountability Ordinance, 1999 could not be launched unless declared wilful defaulters by civil or Banking Court---Validity---Question as to whether a wilful default was or was not committed, squarely fell within the jurisdictional domain of Accountability Court, which was required to be determined on the basis of evidence---Application of 5.25-A of National Accountability Ordinance, .1999, would in the first instance be examined by Accountability Court---Scope of Circular No.29 by State Bank of Pakistan was properly dealt with by High-Court keeping in view the peculiar facts and circumstances of the case---Supreme Court declined to pre-empt the functions of Accountability Court without any' jurisdictional defect having been found---Leave to appeal was refused.

Asim Textiles Ltd. and others v. The National Accountability Bureau and others PLD 2004 Kar. 638 distinguished.

Mrs. Shahida Faisal v. The Federation of Pakistan and others PLD .2005 SC 323. and Manzar Qayyum v. The, State PLD 2006 SC 343 rel.

Tariq Mehmood, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 7th May, 2007.

2007 S C M R 1572

[Supreme Court of Pakistan]

Present: Javed Iqbal Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

NOOR MUHAMMAD----Petitioner

Versus

CHIEF ENGINEER, WORKS AND SERVICES DEPARTMENT, N-W.F.P., PESHAWAR and 3others----Respondents

Civil Petition No.642-P of 2004, decided on 8th May, 2007.

(On appeal from the judgment, dated 1-7-2004 of the Peshawar High Court, Peshawar in Writ Petition No.393 of 2004).

Constitution of Pakistan (1973)---

---Art. 185(3)---Auction---Cancellation of bid---Highest bid of petitioner was rejected by the authorities without assigning any reason---Decision. of authorities was maintained by High Court in exercise of constitutional jurisdiction---Validity---It had been specifically mentioned in auction/ publicity notice of the bid that competent authority had the right to reject bid without assigning airy reason---Authorities could not be forced to accept the bid of petitioner which was lower than the reserved price---No provision existed in auction/publicity bid notice that while cancelling the bid, petitioner would be given opportunity of hearing by the competent authority---Judgment passed by High Court was based on valid and sound reasons and did not warrant any interference by Supreme Court---Leave to appeal was refused.

Muhammad Jamil Khan, Advocate Supreme Court for Petitioner.

Nemo for respondents.

Date of hearing; 8th May, 2007.

2007 S C M R 1574

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Raja Fayyaz Ahmad, JJ

GOVERNMENT OF BALOCHISTAN through Secretary Board of Revenue, Balochistan Quetta and others---Appellants

Versus

MUHAMMAD ALI and 11 others----Respondents

Civil Appeal No.1359 of 2003, decided on 18th January, 2007.

(On appeal from the judgment, dated 28-2-2002 of the High Court of Balochistan, Quetta passed in Civil Revision No.282 of 1997).

(a) Public functionaries---

----Duties, functions and obligations---Scope---Public functionaries are supposed and required to act accordingly, under law and to defend any legal proceedings concerning public property before any court or forum effectively---Public functionaries should preserve, protect and defend title, rights and 'interest of public property in accordance with law---It is the bounden duty of all concerned to act and proceed promptly and effectively to take appropriate steps and to pursue available remedies against any proceedings, orders or decree of a court within the prescribed period of limitation..

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), Ss.96 & 115---. Declaration of title---Appeal barred by limitation---Public property---Public functionaries, negligence of---Plaintiffs sought declaration of title against suit property, ownership of which vested with Forest department---Trial Court decreed the suit in favour of plaintiffs---Appeal against judgment .and decree passed by Trial Court was dismissed by Lower Appellate Court solely on the ground of its being barred by limitation---High, Court in exercise of revisional jurisdiction after discussing merits of the case declined to interfere with the judgment .passed by Lower Appellate Court---Plea raised by authorities was that as appeal before Lower Appellate Court was not decided on merits, therefore, merits of the case should not have been dilated upon by High Court---Validity---Due to serious lapses and failure to discharge legal duties .promptly and within the prescribed period of limitation by all concerned in the matter, in view of the decree of the Trial Court, no actual loss, damage or deprivation of rights had occurred to public functionaries concerned in the matter, rather Government and Forest Department stood completely deprived of the public property solely meant to be used, utilized and dealt with in public interest being a public property of which Government and the Department through its functionaries were the custodian---Decree of Trial Court was not assailed before Lower Appellate Court within the prescribed period of limitation and for such reason alone, appeal was dismissed, upheld by High Court as well, consequently Government stood divested of huge property for being its custodian and thereby interests of public stood completely jeopardized merely because of grave omissions and inaction on the part of concerned public functionaries---Supreme Court, in view and for doing complete justice; took notice. of delay in preferring appeal before Lower Appellate Court and having preferred civil petition for leave to appeal before Supreme Court much beyond the prescribed period of limitation- and condoned the delay---Judgment and decree passed by Lower Appellate Court was set aside and appeal was remanded to Lower Appellate Court for decision afresh on merits---Supreme Court directed the competent authority to proceed against all the concerned delinquent officers and public functionaries by taking disciplinary action under the appropriate law and rules for not having approached Lower Appellate Court and Supreme Court within the prescribed period of limitation and in accordance with law---Appeal was allowed.

Mehmood Raza Khan, Additional Advocate-General for Appellants.

Respondents Nos.1 to 12: Ex parte.

Date of hearing; 18th January, 2007.

2007 S C M R 1581

[Supreme Court of Pakistan]

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

AMIN-E-ADAM----Appellant

Versus

CENTRAL BOARD OF REVENUE. and another----Respondents

C.A. No.2588 of 2001, decided on 1st February, 2007.

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

----Rr. 4(1)(b)(ii) & 5---Constitution of Pakistan (1973), Art.212---Compulsory retirement after issuing show-cause notice and holding inquiry against appellant on allegations of declaration of wrong assess, purchase of car without prior permission from competent authority etc.---Departmental appeal against said punishment having remained unresponded, appellant tiled appeal before Service Tribunal which was dismissed---One of the Members of Service Tribunal accepted appeal filed by appellant and reduced penalty of compulsory retirement to that of censure and appellant was directed to be reinstated in service with back-benefits---Other Member of the Service Tribunal, however, disagreed with findings of the first Member and found appellant guilty of charges against him---Other. Member slid not advance any cogent reason for the act of Inquiry Officer in discarding documentary evidence and the explanation relating to the sources of income of appellant like sale of Jewelry receipts from family settlement and personal savings, without assigning any plausible grounds---No reason existed for the other Member to look with suspicion -the assertion of appellant and the Member had no right to import his personal knowledge to the facts of the case that such claim was usually made by corrupt officers and defaulters of income tax---findings of the other Member, were not sustainable being based on conjectures, surmises and his personal knowledge---- Chairman of the Service Tribunal, while accepting version of the other Member, did not assign any reason as to why the findings of the Member were to be given preference over the findings/pronouncement of first Member---Effect---Chairman of the Tribunal was hound to have given sound and .cogent reasons for discarding version of first Member and accepting the version of the other Member, but he failed to do that---Observations of the Chairman, in circumstances, would be without any legal basis, arbitrary and capricious---Judgment of Service Tribunal, in circumstances could not be sustained---Allowing appeal judgment of Service Tribunal was modified---Penalty of compulsory retirement was converted into the penalty of censure---Appellant was reinstated in service from the date of his compulsory retirement with back-benefits.

Syed Shahenshah Hussain, Advocate Supreme Court and A. Aziz Khan Advocate-on-Record (absent) for Appellant.

Muzaffar Ali Khan, Advocate-on-Record for Respondent.

2007 S C M R 1587

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed and Hamid Ali Mirza, JJ

MUHAMMAD OVAIS and another----Petitioners

Versus

FEDERATION OF PAKISTAN through Ministry of Works and Housing Pakistan, Islamabad and others----Respondents

Civil Petition No.285 of 2007, decided on 23rd April, 2007.

(On appeal from the judgment, dated 8-3-2007 of the High Court of Sindh, Karachi, passed in Civil Petition No.D-1126 of 2006).

Civil Procedure Code (V of 1908)---

----O. XX, R. 1---Constitution of Pakistan (1973), Art.199---Constitutional jurisdiction of High Court---Proceedings, nature of---Delayed pronouncement of judgment---Effect---Provisions of Civil Procedure Code, 1908---Applicability---Judgment was announced by High Court ten months after hearing arguments on Constitutional petition---Plea raised by appellants was that judgment passed by High Court had caused prejudice to them---Validity---Proceedings initiated by High Court involved assertion and enforcement of civil rights hence considered as civil proceedings---Regardless of whether jurisdiction exercised by High Court was original, appellate or Constitutional, once proceedings before High Court were of civil nature, the provisions of Civil Procedure Code; 1908 would apply unless any provision was specifically excepted---Unreasonable delay. of ten months in pronouncement of judgment by High Court had caused prejudice---Bulk of documentary evidence going to the root of the case did not find mention in the judgment of High Court, such omission was caused only due to delay of ten months---Supreme Court converted petition for leave to appeal into appeal, set aside judgment passed by High Court and remanded the case to High Court for rehearing and re-deciding in accordance with law.

Hussain Bakhsh's case PLD 1970 SC l; Pathana v. Mst. Khandal PLD 1952. BJ 38; Syed Iftikhar-ud-Din Haider Gardezi v. Central Bank of. India Limited 1996 SCMR 669 and Juma .Khan v. Mst. Bibi Zenaba PLD 2002 SC 823 ref.

Abid S. Zuberi, Advocate Supreme Court with M.S. Khatak, Advocate-on-Record for Petitioners.

Salim, S.O. Housing and Works for Respondent No.1.

Arshad Ali Ch., Advocate-on-Record/Advocate Supreme Court, Shahid Jamil, Additional Controller (Legal) for Respondent No.3.

Badar Alam, Advocate Supreme Court for Respondent No.4.

M. Ali Mazhar, Advocate Supreme Court with Ejaz Muhammad Khan Advocate-on-Record for Respondent No.5.

Syed Iqbal Haider, Advocate Supreme Court with Ch. Muhammad Akram, Advocate-on-Record for Respondents Nos.9 and 10.

Nemo for Respondents Nos.2 and 6 to 8.

Date of hearing: 20th April, 2007.

2007 S C M R 1590

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Ghulam Rabbani, JJ

MADARASA HAMMADIA MAHMOODIA----Petitioner

Versus

KHALIL AHMED and another.----Respondents

C.P. No.458-K of 2006, decided on 9th March, 2007.

Islamic law---

----Waqf---Leave to appeal was granted by the Supreme Court to examine the question as to whether a Waqif, after making Waqf and delivery of possession of Waqf property, had no power to revoke the Waqf and a party had any locus standi to file the suit for revocation of Wagf---Constitution of Pakistan (1973), Art.185(8).

Shamsuddin Khalid Ansari, Advocate Supreme Court along with Aminullah Farooqui, Advocate-on-Record.

2007 S C M R 1591

[Supreme Court of Pakistan]

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

Mst. TAJ BIBI----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.333 of 2005, decided on 25th April, 2006.

(On appeal from the judgment, dated 27-10-2004 of Lahore High Court, Rawalpindi Bench, passed in Criminal Appeal No.559 of 2002).

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

----S. 9(c)---Constitution of Pakistan (1973), Art.185(3)---Sentence, reduction of---Recovery was satisfactorily proved in the case reinforced by the physical arrest of the accused on the spot as well as the report of Chemical Examiner which was in positive---No exception thus, could be taken to the conviction of accused---Accused, however, seemed to be a carrier and being a lady, a lenient view was taken by the Supreme Court and after converting the petition into appeal, sentence of imprisomnent of six years and fine of Rs.50,000 was awarded instead of eight years' RI. and a fine of Rs.1,00,000 with benefit of 5.382-B, Cr.P.C.

Niaz Ahmad Rathore, Advocate Supreme Court for Petitioner.

Dil Muhammad Tarar, Advocate Supreme Court for the State.

Date of hearing: 25th April, 2006.

2007 S C M R 1593

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad and Ch. Ijaz Ahmed, JJ

ABDUL HAMEED and others----Petitioners

Versus

SPECIAL SECRETARY, EDUCATION (SCHOOLS), GOVERNMENT OF PUNJAB and others----Respondents

Civil Petitions Nos.1622 to 1632-L of 2006, decided on 6th September, 2006.

(On appeal from the judgment, dated 10-7-2006 by the Punjab Service Tribunal, Lahore in Appeal No.1644 to 1654 of 2006).

Constitution of Pakistan (1973) ---

----Arts. 212(3) & 189---Punjab Service Tribunals Act (IX of 1974), S.4---Impugned order of Service Tribunal had shown that Service Tribunal appeared to be in great haste in disposing of appeal and did not advert to the very material points/questions which were required to be considered in deciding appeals justly and' fairly---Service Tribunal did not bother to look into the judgments and orders of Supreme Court and issues involved in appeals, which was violation of Art.189 of " the" Constitution which required that judgment of Supreme Court was binding on, all the .Courts and Tribunals---Petitions for leave to appeal were converted into appeals and were allowed---Impugned orders of the Tribunal were set aside and case was remanded to the Service Tribunal for fresh decision alter taking into consideration the grounds mentioned in the memo of the appeal.

Hafiz Tariq Nasim, Advocate Supreme. Court with Tanvir Ahmad, Advocate-on-Record for Petitioners.

Ch. M. Sadiq, Additional Advocate-General for Respondents (oil Court's call).

Date of hearing: 6th September, 2006.

2007 S C M R 1595

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Nasir-ul-Mulk, JJ

Mian AHMAD RAZA and 2others----Appellants

Versus

KARIM BAKHSH through L.Rs. and others----Respondents

Civil Appeal No.2025 of 2001, decided on 17th January, 2007.

(On appeal from the judgment, dated 24-11-1999 passed by Lahore High Court, Lahore, in Civil Revision No.413 of 1985).

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

----S. 15---West Pakistan Land Revenue Act (XVII of 1967), S.42---Qanun-e-Shahadat (10 of 1984), Art.90---Pre-emption suit--Superior right of pre-emption claimed on basis of relationship and being co-sharer in Khata---Tendering in evidence certified copies of Revenue Record by pre-emptor without. making statement in support of his claim--Validity---Presumption of truth attached to Revenue Record---Scope---Jamabandi by itself would not be sufficient to prove contents of plaint in absence of any other oral or documentary evidence---Pre-emptor must prove such right by producing cogent and convincing evidence both oral and documentary, failing which he would have to face consequence of dismissal of suit---Mere tendering in evidence such documents would not be sufficient to discharge heavy burden of proving such right---Pre­emptor having failed to prove his such right his suit was dismissed.

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

----S. 15---Pre-emption suit---Superior right of pre-emption claimed as co-sharer in Khata---Pre-emptor in his affirmative statement not claiming such right---Effect---Inference would be that pre-emptor had abandoned such claim.

Gulrarin Kiani, Advocate Supreme Court for Appellants.

Mian Saeedur Rehman Farrukh, Advocate Supreme Court for Respondents.

Date of hearing:.17th January, 2007.

2007 S C M R 1599

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Mian Sahakirullah Jan and Saiyed Saeed Ashhad, JJ

Mst. KANEEZ FATIMA----Petitioner

Versus

MUHAMMAD RIAZ ROSHAN and others----Respondents

Civil Petition No.906 of 2006, decided on 4th December, 2006.

(On appeal from the judgment, dated 22-9-2006 passed by Lahore High Court, Bahawalpur Bench, in Writ Petition No.893 of 2006/BWP).

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.185(3)---Suit for recovery of dowry, maintenance and dower was dismissed in view of the fact that parties had entered into compromise---Petitioner lady, thereafter alleged .that compromise had not been implemented, whereas the claim of respondent was that compromise had been implemented---Petitioner in the meantime riled a civil suit before Family Court for permanent injunction against respondent to the effect that in terms of compromise, respondent could not contract another marriage---Petitioner in said suit

had herself admitted that- compromise had been implemented---High Court had held that petitioner had herself admitted in her suit that compromise had been complied with---Judgment of the High Court could be maintained on the ground that compromise arrived at between part: had been implemented---If petitioner would perform her part of obligation according to offer of respondent, she would be entitled to past and future maintenance---Petition was dismissed with said observations.

Tariq Mehmood for Petitioner.

Muhammad Ozair Chughtai for Respondent.

2007 S C M R 1602

[Supreme Court of Pakistan]

Present: Falak Sher and Ch. Ijaz Ahmed, JJ

MUHAMMAD SHAFI and others----Petitioners

Versus

SULTAN----Respondent

Civil Petition No.3767/L of 2001, decided on 24th July, 2007.

(On appeal from the order, dated 10-9-2001 passed by Lahore High Court, Lahore, in R.S.A.547 of 1967).

(a) Pleadings---

----Parties are bound by their pleadings.

Mst. Murad Begum's PLD 1974 SC 322 rel.

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

----Art. 185(3)---Colonization of Government Lands (Punjab) Act (IV of 1912), Ss. 10 & 19---Specific Relief Act (I of 1877), S.42---Petition for leave to appeal---Interference by Supreme Court in concurrent findings of Courts below---Scope---Concurrent findings of tact by the courts below---Violation of mandatory provisions of law---Onus to prove---Contention of plaintiffs was that all the courts below had decided case against them in violation of mandatory provisions of Ss.10 & 19 of Colonization of Government Lands (Punjab) Act, 1912---Validity---Supreme Court could not go behind concurrent findings of fact recorded by courts below, unless it was shown that such findings were, on the 'face of it, against the evidence Cr so patently improbable, or perverse that to accept them would amount to perpetuating a grave miscarriage of justice, or if there had been any misapplication of principle relating to appreciation of evidence or finally, if finding could be demonstrated to be physically impossible---Such being practice and rule of court in civil petitions, burden was heavily on plaintiff's to show that concurrent findings recorded by High Court were not sustainable on record and should be interfered with by Supreme Court---Plaintiffs failed to point -out any infirmity or illegality in the judgment passed by Nigh Court and did not bring the case within the parameters prescribed by superior courts---Supreme Court declined to interfere with the judgment and decree passed by High Court---Leave to appeal was refused.

Allen's case1887 Vol. 12 AC 101; Bibhabati's case AIR 1947 PC 19 and Ali Ihsan's case PLD 1967 SC 249 rel.

Ch. Muhammad Ashraf, Advocate Supreme Court for Petitioners.

Mian Iqbal Hussain Kalanuri, Advocate Supreme Court for Respondent.

2007 S C M R 1605

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Abdul Hameed Dogar, JJ

BEGUM SALMA AHMED----Petitioner

Versus

THE STATE through Chairman----Respondent

C.P. L. A. No.627-K of 2001.

National Accountability Ordinance (XVIII of 1999)---

----S. 10---Criminal Procedure Code (V of 1898), S.540---Constitution of Pakistan (1973), Art.185(3)---Summoning witnesses for examination---Questions with regard to summoning of witness after close of evidence, did not appear to have been discussed by both Trial Court as well as the High Court in detail---Leave to appeal was granted to examine questions raised in detail---Operation of impugned order would remain suspended till hearing of appeal.

Farooq H. Naek, Advocate Supreme Court for Petitioner and Ghulam Qadir Jatoi, Advocate-on-Record.

2007 S C M R 1607

[Supreme Court of Pakistan]

Present: Javed Iqbal, Abdul Hameed Dogar and Falak Sher, JJ

Ch. WARIS ALI----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.151 of 2007, decided on 4th June, 2007.

(On appeal from the order, dated 19-4-2007 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No.2706/B of 2007).

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

----S. 498---Bail before arrest, grant of---Principles.

Bail before arrest can be granted when the arrest of accused is eminent, with ulterior motive, mala fide or is due to false implication apparent on the face of the record.

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

----S. 498---Penal Code (XLV of 1860), Ss.452, 506, 324, 337-H(ii), 148 & 149---Bail before arrest, grant of---No mala fide or ulterior motive on the part of complainant was pointed out by accused---Accused was named in F.I.R: with specific role of aerial firing--Recovery of licensed rifle of accused from place of occurrence showed his involvement in the offence---Accused was found involved in commission of offence by two Investigating Officers---Petition for grant of pre-arrest bail was dismissed in circumstances.

Sardar Latif Khan Khosa, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner:

Arshad Ali Ch., Advocate-on-Record/Advocate Supreme Court for the Complainant.

2007 S C M R 1609

[Supreme Court of Pakistan]

Present: Javed Iqbal, Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

FEDERATION OF PAKISTAN through Secretary Establishment and others----Petitioners

Versus

IDREES-UL-HASSAN USMANI----Respondent

Civil Petition No.232 of 2007, decided on 26th March, 2007.

(On appeal from the judgment, dated 20-12-2006 passed by Federal Service Tribunal Karachi, in Appeal No.211(K)(C.S.) of 2004).

Civil Servants Act (LXXI of 1973)---

----S. 6---National Savings Organization---Promotion to post of Assistant Director (B-17) subject to passing of departmental examination again second time by civil servant during probation period---Validity---No such condition was laid down either in S.6 of Civil Servants Act, 1973 or in S.R.O.1271(I)/90---Such condition was illegal and highly unjustified---Competent Authority had granted exemption to several employees from such condition---Appeal of civil servant was accepted in circumstances.

Ms. Naheeda Mehboob Elahi, D. A.-G. and M.S. Khattak, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 26th March, 2007.

2007 S C M R 1612

[Supreme Court of Pakistan]

Present: Javed Iqbal, Abdul Hameed Dogar and Falk Sher, JJ

HAROON----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.164 of 2007, decided on 7th June, 2007.

(On appeal from the judgment, dated 16-2-2006 of the Lahore High Court, Lahore, in Criminal Appeal No.193 of 2005).

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

----S. 7---Penal Code (XLV of 1860), Ss.324, 337-F(ii), 337-L(2) & 353---Constitution of Pakistan (1973), Art.185(3)---Supreme Court granted leave to appeal to consider, whether evidence of eye-witnesses including injured was not consistent with medical evidence inasmuch as none of them had stated about infliction of injury by a blunt weapon; whether doctor on examination of injured, who was taken directly from place, of occurrence to hospital, did not find holes in his dress corresponding to fire-arm injuries; whether prosecution did not take into possession clothes of injured, which definitely would have blood-stains' on them as he admittedly received three grazing fire-arm wounds and whether motorcycle said to have been used by accused and been taken into possession by prosecution did not belong to him, but to someone else, who was not produced.

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

----S. 7---Penal Code (XLV of 1860), Ss.324, 337-F(ii), 337-L(2) & 353---Reappraisal of evidence--Firing at raiding party during recovery of contraband---"SB" during investigation had disclosed presence of contraband in house of "P", but raiding party on reaching said house neither had apprehended "P" nor had shown him an accused in the case---"SB" was not cited as witness in the case, who had disclosed about accused riding on motorcycle---Owner of motorcycle namely "I" was neither examined as witness nor was arrayed as an accused, though motorcycle had been recovered from the spot---Accused, according to eye-witnesses, had fired from pistol injuring constable, but presence of blunt weapon injury on his person negated such version---Injured constable was fired from pistol; but medical evidence showed that there were no corresponding holes on his shirt and Shalwar---Even blood was not noticed on clothes of injured taken into possession by police---Prosecution had failed to prove .its case beyond any shadow of doubt---Supreme Court set aside conviction and sentence awarded to accused by trial Court and confirmed by High Court---Accused was acquitted.

Hifzur Rehman, Advocate Supreme Court for Appellant.

Ch. Munir Sadiq, Dy. P.G. Punjab for the State.

Date of hearing: 7th June, 2007.

2007 S C M R 1617

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Hamid Ali Mirza, JJ

MUSLIM COMMERCIAL BANK----Petitioner

Versus

SHAMSUL AULIA----Respondent

Civil Petition No.1500 of 2005, decided on 27th February, 2007.

(On appeal against the judgment, dated 14-3-2005 passed by Peshawar High Court, Peshawar, in Appeal No.35 of 2005).

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

----Art. 185---Question of fact or mixed question of law and fact based on evidence---Concurrent findings of courts on such question---Interference in such findings by Supreme Court---Scope stated.

Usually Supreme Court is reluctant to interfere in the concurrent findings of the courts on a question of fact or a mixed question of law and fact based on evidence and mere fact that another view of the evidence was also possible or a wrong view of the evidence was taken by the concerned forum may not be valid ground for interference of Supreme Court.

(b) Industrial Relations Ordinance (XXIII of 1969)---

---Ss. 25-A, 46, 47(3) & 48---Grievance petition---Cashier in Bank---Dismissal from service---Wilful negligence, charge of---Encashment of cheques allowed by Cashier without obtaining signatures and verifying identity of person, who presented cheque---Loss caused to bank in terms of money and reputation by such acts of Cashier---Dismissal of grievance petition by Labour Court affirmed by Labour Appellate Tribunal for Bank having proved such charge against Cashier---Reinstatement in service of Cashier with back-benefits by High Court---Validity---Tribunal instead of dismissing appeal should have proposed minor penalty commeusurating with the nature of charge---Minor penalty of stoppage of two increments for two years without accumulative effect would be sufficient to meet the ends of justice---Supreme Court partly accepted appeal and modified judgment of Tribunal in such terms.

Qari Muhammad Anwar, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.

Raja M. Ibrahim Satti, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent.

Date of hearing; 27th February, 2007.

2007 S C M R 1620

[Supreme Court of Pakistan]

Before Muhammad Nawaz Abbasi and Ch. Ijaz Ahmed, JJ

THAL INDUSTRIES CORPORATION LIMITED through Legal Manager---Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Chief Secretary, Punjab and 10 others---Respondents

Civil Petition No.1085 of 2006, decided on 9th February, 2007.

(On appeal from the judgment dated 10-10-2006 passed by Lahore High Court, Multan Bench in Writ Petition 3415 of 2006).

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

----Art. 18---Right of lawful business and trade---Shortage of raw material---Effect---Shortage of raw material in a particular area is not a valid ground to restrain a person from his Constitutional right of doing business in a particular area.

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

---Arts. 18, 184 (3) & 199---Constitutional jurisdiction of Supreme Court and High Court---Scope---Lawful business---Restraining order---Person aggrieved of action of public functionaries can invoke extraordinary Constitutional jurisdiction of High Court for interference and simultaneously jurisdiction of Supreme Court under Art. 184 (3) of the Constitution can be invoked in a matter of public importance involving enforcement of fundamental rights---Constitutional jurisdiction of superior courts cannot be invoked and exercised in aid of injustice or to restrain a person from doing lawful business of his choice in accordance with law and Constitution.

(c) Punjab Industries (Control on Establishment and Enlargement) Ordinance (IV of 1963)---

----S. 3---Notification No. AEA-III-3-5/2003, dated 15-7-2005---Constitution of Pakistan (1973), Arts.18 & 185 (3)---Right of lawful trade and business---Shortage of raw material---Installation of sugar mill---Petitioner was running a sugar mill anti sought interference of High Court for restraining respondent from raising a new sugar mill on the plea of shortage of raw material in the area---High Court dismissed the petition---Validity---Petitioner was not competent to maintain Constitutional petition to challenge setting up a new sugar mill in the area on the ground that establishment of industry was against public interest crud policy of law---Constitutional mandate was that neither any restriction could be placed on setting up of a lawful business or trade nor any person in private sector could be allowed to create monopoly in such trade or business---Provincial Government having conceded the right of private respondent for setting up of sugar mill, raised a .serious objection to the locus standi of the petitioner to challenge establishment of sugar mill in the district---Supreme Court declined to interfere with the judgment passed by High Court---Leave to appeal was refused.

M. Akram Sheikh Senior Advocate Supreme Court for Petitioner.

Nasir Screed Shaikh (Court call) for Respondents.

Khadim Hussain Qaiser, Add1.A.-G., Ahmed Ali, DOE and IP, Irfan on behalf of Secretary Agriculture and Mehmood Ajmal, A..D. (Industries) for Respondents Nos.1 to 9.

Raja Abdul Ghafoor, Advocate Supreme Court for Respondent No.10.

Wasim Sajjad, Senior Advocate Supreme Court, Idrees Ashraf, Advocate Supreme Court and Malik M. Rafiq Rajwana, Advocate Supreme Court for Respondent No. 11.

Date of hearing: 9th February, 2007.

2007 S C M R 1627

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Falak Sher JJ

CHAIRMAN, WAPDA, LAHORE and another----Petitioners

Versus

MAHMOOD AHMAD and 27 others----Respondents

Civil Petition No.476 of 2007, decided on 31st May, 2007.

(On appeal from the judgment, dated 9-3-2007 of the Federal Service Tribunal, Islamabad, in Appeal No.868(R)(C.S.) of 2005).

Service Tribunals Act (LXX of 1973)---

----S. 4---Water and Power Development Authority Promotion Policy, clause 10(b)---Constitution of Pakistan (1973), Art.212(3)---Promotion, deferring of---Principles--Authorities declined ante-dated promotion and re-fixation of seniority of employee but Service Tribunal allowed his appeal---Validity---Employee was declared fit for promotion and he requested tar ante-dation of his promotion but he was promoted with immediate effect---Under clause 10(b) of Water and Power Development Authority Promotion Policy an employee could be deferred for promotion if his Annual Confidential Report dossier was incomplete or disciplinary proceedings were pending against him---Supersession of employee was in violation of clause 10(b) of Water and Power Development Authority Promotion Policy---Employee could only be deferred for promotion and should not have been superseded---Judgment passed by Service Tribunal was based on valid and sound reasons and was in consonance with the law laid down by Supreme Court---Neither there was any misreading, nor non-reading of material evidence or misconstruction of facts and law---Question of general public importance as contemplated under Art.212 (3) of the Constitution was not involved---Supreme Court declined to interfere with the judgment passed by Service Tribunal---Leave to appeal was refused.

Mian Khurshid Alam Ramay, Advocate Supreme Court for Petitioners.

Mian Muhammad Hussain Advocate Supreme Court for Respondent No.1.

Nemo for Respondents Nos.2 to 28.

Date of hearing: 31st May, 2007.

2007 S C M R 1631

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Actg. C.J., Tassaduq Hussain Jillani and Ghulam Rabbani, JJ

SHAHBAZ MASIH----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.279 of 2002, decided on 7th May, 2007.

(On appeal against the judgment, dated 25-10-2001 passed by the Lahore High Court, Lahore, in Criminal Appeal No.81/J of 1999 and Murder Reference No.294/T of 1999).

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

----S. 540---Additional evidence---Powers of court---Object and scope---Court enjoys full powers to summon and examine any person as witness at any stage of trial and it is imperative for the court within the terms of S.540, Cr.P.C. to summon and examine a person when evidence of such person appears to the court essential to come to just decision of the case---Court can also examine any person in attendance though not called as witness---Underlying object always is to reach the truth.

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

----Ss. 265-C & 265-F---Criminal trial---Supply of copies---Summoning of witnesses---Recording of prosecution evidence---Object. and scope---Object of S. 265-F, Cr.P.C. appears to be that where accused does not plead guilty or he is not convicted on his plea, the court has to issue summons to those persons whom public prosecutor or complainant considers to be acquainted with the facts of the case and able to give evidence for prosecution, so that their evidence is taken by the court---Nothing is provided in S.265-F, Cr. P. C. that it should be at the discretion of public prosecutor or the complainant, as the case may be, to name any such person whose Statement under S.161 Cr.P.C. or 164 Cr.P.C. has not been recorded and whose name does not appear in calendar of witnesses, had the position been so, the very purpose of S.265-C, Cr.P.C. would have been frustrated---Obligatory supply of documents mentioned therein well in advance, apparently was with no purpose other than to enable the accused to know the prosecution case and meet the charges if framed otherwise it would lapse into unconscionable consequences.

Muhammad Hussain v. The State 1990 PCr.LJ 1102 and Waris Khan and others v. The State anal others 2004 MLD 1982 distinguished.

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

----S. 302---Criminal Procedure Code (V of 1898), S.265-F---Murder trial---Injured witness, evidence of---Witness not named in calendar of witnesses---Plea raised by accused was that evidence of injured witness could not have been recorded as neither copy of statement under S.161 Cr.P.C. of the witness was supplied to accused nor name of witness was shown in calendar of witnesses---Validity---Injured persons having been named in F.I.R. which fact, appeared in evidence as well, such witness was examined by court as a witness during the course of trial, therefore, no violation of law had taken place---Defence did not raise any objection at the time of recording testimony of that witness rather he was subjected to lengthy cross-examination---Accused, held, was not prejudiced in his defence.

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

----Ss. 302, 324, 353, 392 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Reappraisal of evidence---Benefit of doubt---Material contradictions in evidence---Withholding of evidence---Presumption---During police encounter at night time, one police official died while the other was injured---Accused was convicted by Special Court and sentenced to death---Conviction and sentence, of the accused was maintained by High Court---Validity---Huge number of police personnel was available at the place of incident, who were armed with a variety of weapons but none of them was stated to have returned fires of assailants---Such conduct of police party was against normal human behaviour, moreso, of well trained men conscious of the fact that two of them were gunned down by assailants taking away their service rifles---Assailants were not visible in darkness and there was remote possibility for prosecution witness to have identified- the assailants, muchless disclosing their names to his companions---One private person was present at the spot at the time of incident, who was the only person other than police party available at material time---By not examining the private person as witness, presumption was that prosecution was fearful that the witness would not have supported its case, if examined---Prosecution failed to .prove the case against accused beyond any shadow of doubt---Conviction and sentence awarded by High Court as well by Trial Court was set aside---Appeal was allowed.

Javed Aziz Sindhu, Advocate Supreme Court for Appellant.

Ch. Munir Sadiq, Deputy Prosecutor-General, Punjab for the State.

2007 S C M R 1639

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Falak Sher, JJ

NAIK MUHAMMAD alias NAIKA and another----Petitioners

Versus

THE STATE----Respondent

Jail Petition No.217 of 2006, decided on 29th May, 2007.

(On appeal from the judgment, dated 5-4-2006 of the Lahore High Court, Lahore, in Criminal Appeal No.1072 of 2000 and Murder Reference No.388 of 2000).

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Interested witnesses---Accused were convicted and sentenced to death---High Court maintained the conviction but converted death penalty into imprisonment for life---Plea raised by accused was that prosecution witnesses were interested witnesses as they were closely related to deceased---Validity---Supreme Court did not find any illegality, misreading or non-appreciation of prosecution version which, otherwise, was convincing and truthful---Ocular evidence furnished by prosecution witnesses was found to be creditworthy by Trial Court as well as by High Court---No inherent defect or material lacuna was found in the evidence of prosecution witnesses whose presence at the site had been established beyond any shadow of doubt---Both prosecution witnesses were closely related to deceased but fact of the matter remained that mere relationship of witnesses with deceased per se would not render them interested or partisan witnesses---Prosecution had proved guilt of accused by strong motive, ocular reliable testimony coupled with corroborative medico legal opinion and recovery of crime weapons---Supreme Court declined to subscribe to the contention of accused that there was conflict between ocular and medical evidence and refused to interfere with conviction and sentence passed by High Court---Leave to appeal was refused.

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

----S. 302(b)---Reappraisal of evidence---Witness---Prosecution witnesses were closely related to deceased---Mere relationship of witnesses with deceased per se would not render them interested or parisan witnesses .

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

----S. 302(b)---Sentence, reduction in---Mitigating circumstances---Fatal shot---Determination---Both the accused were convicted and sentenced to death penalty but High Court altered the sentence into imprisonment for life---Validity---Main ground which weighed with the High Court as extenuating circumstance to reduce sentence was that though one shot was attributed to each accused but which of the shots was fatal, was not ascertainable from the medical evidence---High Court had rightly altered the sentence in circumstances.

Allah Dad and another v. The State 1995 SCMR 142 fol.

Syed Rafaqat Hussain Shah, Advocate Supreme Court for Petitioners.

Ch. Munir Sadiq, Deputy Prosecutor-General, Punjab for the State.

Date of hearing: 29th May, 2007.

2007 S C M R 1643

[Supreme Court of Pakistan]

Present: Javed Iqbal, Actg. C.J. and Sardar Muhammad Raza Khan, J

Syed SAJJAD HAIDER KAZMI----Appellant

Versus

DIRECTOR-GENERAL (S&GAD) WAPDA and another----Respondents

Civil Appeal No.2745 of 2006, decided on 31st May, 2007.

(On appeal from the judgment, dated 12-10-2006 in Appeal No.228(L)(C.S.) of 2003 passed by Federal Service Tribunal, Islamabad).

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

----Ss. 3, 5 & 10---Constitution of Pakistan (1973), Art.212(3)---Compulsory retirement from service---Negligence, charge of---Retirement of civil servant from service w.e.f. 9-10-2006 on attaining age of superannuation---Judgment of Service Tribunal, dated 12-10-2006 directing holding of de novo inquiry against civil servant---Validity---Supreme Court granted leave to appeal to consider, inter alia, contention of civil servant that after his retirement from service, Service Tribunal was not justified in directing holding of de novo inquiry against him.

Abdul Wali v. WAPDA 2004 SCMR 67 ref.

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

----Ss. 3, 5 & 10---Compulsory retirement from service---Breaking out fire in hospital---Civil servant was charged to be responsible for faulty functioning of Fire Alarm System in hospital---Imposition of such penalty after dispensing with regular inquiry---Retirement of civil servant from service w.e.f. 9-10-2006 on attaining age of superannuation---Service Tribunal on 12-10-2006 partly accepted appeal of civil servant directing holding of de novo inquiry against him---Validity---Copy of report of preliminary inquiry had not been made available to civil servant, due to which he remained ignorant of exact nature of accusation and incriminating material relied upon therein---Civil servant had not been provided personal opportunity of hearing---Preliminary inquiry could not be equated to that of a regular inquiry---Regular inquiry should not have been dispensed with in view of contentions and controversial issues raised by civil servant in reply to show-cause notice---Competent authority had not examined such reply with diligent application of mind---Civil servant had since been retired, holding of de novo inquiry against him in absence of any lawful justification, would be of no use---Supreme Court set aside impugned judgment in circumstances.

Abdul Wali v. WAPDA 2004 SCMR 67 ref.

Ghulam Muhammad Khan v. Prime Minister of Pakistan and others 1996 PLC (C.S.) 868; Nawaz Khan and another v. Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and others PLD 1994 SC 222; Basharat Ali v. Director Excise and Taxation Lahore 1997 SCMR 1543=1997 PLC (C.S.) 817; Syed Yaqoob Shah v. Xen PESCO (WAPDA) Peshawar PLD 2002 SC 667; Abdul Qayyum v. D.G. Project Manager Organization 2003 SCMR 1110 rel.

Mian Mahmood Hussain, Advocate Supreme Court for Appellant.

Ch. Muhammad Sharif, Advocate Supreme .Court for Respondents Nos. 1 and 2.

Date of hearing: 31st May, 2007.

2007 S C M R 1649

[Supreme Court of Pakistan]

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

Sahibzada MUHABAT KHAN ABBASI and others----Petitioners

Versus

GOVERNMENT OF PAKISTAN through Secretary, Kashmir Affairs and Northern Areas and States and Frontier Division, Islamabad (KANA & SARFRON) and others----Respondents

Civil Petitions Nos.700 and 1539-L of 2004, decided on 1st June, 2006.

(On appeal from judgment, dated 8-3-2004 passed by the Lahore High Court, Bahawalpur Bench, in Writ Petitions Nos.1141 of 2003 and 3237 of 2003/BWP).

Acceding State (Property) Order, 1961---

----Art. 3---Devolution and. Distribution of Property (Ameer of Bahawalpur) Order, 1969, Scheds. 1 & 2---Constitution of Pakistan (1973), Art. 185 (3)---Distribution of properties---Legal heirs of Ameer of Bahawalpur---Entitlement---Ameer of Bahawalpur was survived by 3 widows, 10 sons and 10 daughters---Federal Government constituted a committee headed by retired Judge of the High Court, who got published notices in various newspapers and after hearing a number of persons, claimants and legal heirs of late Ameer of Bahawalpur, submitted its report---Committee recommended distribution of shares, whereby 1/8 share was to be distributed among three widows and rest of 7/8 amongst 10 sons and 10 daughters in .the ratio of 2:1---Federal. Government constituted another committee for implementing the recommendations of earlier committee---Petitioners were collaterals of Ameer having common ancestors and claimed that the properties under distribution were not solely owned by Ameer as those were common family properties devolved on entire family including the petitioners---Steps of second committee for giving effect to the recommendations of first committee were assailed by petitioners before High Court in exercise of constitutional jurisdiction---High Court dismissed the petitions---Validity---Supreme Court, in view of its findings in an earlier judgment, had declined to interfere with the judgment passed by High Court---High Court rightly dismissed the constitutional petition with the observation that the same would not debar the petitioners from availing any other remedy available to them under the law and it was appropriate to simply dismiss the petitions so that relief, if any, given to the petitioners remained intact and was not taken away---Leave to appeal was refused.

Brigadier His Highness Nawab Muhammad Abbas Khan Abbasi, Ameer of Bahawalpur v. Government of Pakistan through the Joint Secretary Ministry of States and Frontier Regions, Rawalpindi PLD 1978 Lah. 1166; Government of Pakistan v. Brigadier His Highness Nawab Muhammad Abbas Khan Abbasi and others PLD 1982 SC 367; Brigadier H.H. Nawab Muhammad Abbas Khan Abbasi Ameer of Bahawalpur v. the Government of Pakistan and others PLD 1984 SC 67 and Prince A.M. Abbasi and another v. Federal Government through Secretary and 24 others PLD 2002 SC 170 fol.

Mian Allah Nawaz, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioners (in Civil Petition No.700 of 2004).

Muhammad Munir Peracha, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondents 5(2), 6(2), 7(iii), 7(3), 14(1), (2), 9, 16 (in Civil Petition No.700 of 2004).

Mujeebur Rehman, Advocate Supreme Court and G.N. Gohar, Advocate-on-Record for Petitioners (in Civil Petition No.1539/L of 2004).

Jaffar Hussain, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondents Nos.9(ii), 11(iii) and 15 (in Civil "Petition No.1539/L of 2004).

Nasir Saeed Sheikh, D.A.-G. and Raja Abdul Ghafoor, Advocate-on-Record for the State (in Civil Petition No.1539/L of 2004). "

2007 S C M R 1671

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Falak Sher, JJ

MUHAMMAD AKRAM----Petitioner

Versus

THE STATR----Respondent

Jail Petition No.206 of 2005, decided on 22nd May, 2007.

(On appeal from the judgment, dated 26-4-2005 of the Lahore High Court, Lahore, passed in Criminal Appeal No.125 of 2004).

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

----Ss. 9(c) & 21---Constitution of Pakistan (1973), Art.185(3)---Re­appraisal of evidence---Charas weighing 13 Kgs---Raid and search by Assistant Sub-Inspector---Search warrant, dispensing with---On spy information, Assistant Sub-Inspector conducted a raid and arrested accused red-handed, who was carrying 13 bags of Charas each weighing one kilogram---Ten grams from each bag was taken out for chemical examination---Trial Court convicted and sentenced accused for life imprisonment---Conviction and sentence awarded by Trial Court was maintained by High Court---Plea raised by accused was that under S.21 of Control of Narcotic Substances Act, 1997, Assistant Sub-Inspector was not competent to make any raid---Validity---Requirement to obtain search warrant could be dispensed with in cases where a quick action was required to be taken and it would be difficult to obtain search warrant where due to paucity of time apprehension of narcotics being removed or culprits having chance to escape were eminent---If Assistant Sub-Inspector had gone for obtaining search warrant, there was likelihood of accused having escaped away---Assistant Sub-Inspector was justified in conducting raid, search and seizure of huge quantity of narcotic without warrant---Prosecution proved the case against accused without any iota of doubt---Huge quantity of Charas was recovered from accused acid report of Chemical Examiner was also found in positive---Prosecution witnesses had deposed against accused and their testimonies remained unshattered despite lengthy cross-examination---Accused failed to point out any misreading or non-reading of evidence warranting interference by Supreme Court---Leave to appeal was refused.

Raees Khan v. The State 2005 PCr.LJ 76 and State through A.-G. Sindh v. Hemjoo 2003 SCMR 881 distinguished.

Karl John Joseph v. The State PLD 2004 SC 394 and Fida Jan v. The State 2001 SCMR 36 rel.

Sardar Muhammad Siddique Khan, Advocate Supreme Court for Petitioner.

Ms. Nahida Mehboob Ellahi, D.A.-G. Ms. Afshan Ghazanfar, A.A.-G., Punjab and Ch. Munir Sadiq, D.P.-G., Punjab for the State.

2007 S C M R 1676

[Supreme Court of Pakistan]

Present: Javed Iqbal, Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

Mst. TAZEEM BEGUM----Appellant

Versus

JAHANDAD and others----Respondents

Criminal Appeal No.95 of 2001, decided on 19th April, 2007.

(On appeal from the judgment, dated 5th April, 2000 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeal No.83 of 1999).

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

----Ss. 302, 337, 148 & 149---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court in order to examine order of acquittal of accused in view of the evidence available on record including that of injured persons.

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

----Ss. 302, 337, 148 & 149---Reappraisal of evidence---Delay in registration of F.I.R.---Fracture of ribs---No external injury---Five accused including three brothers were sent to face trial---Two accused were acquitted by Trial Court while, convicted two accused under S.337, P.P.C. and sentenced them for one year imprisonment and one .accused was convicted under S.302 P.P.C. and sentenced to death---High Court set aside the conviction under S.302 P.P.C. and acquitted the accused---Validity---F.I.R. was lodged with a delay of 21 hours despite the fact that all injured persons including deceased had reached hospital after a few hours of the occurrence---Trial Court while acquitting other two co-accused had also observed that their involvement might be the result of consultation and deliberation in view of their late implication in the case---No external injury was found on the chest or trunk of the body of deceased---Accused explained to certain extent injuries sustained by deceased by falling from tractor trolley---Medical Officer in cross-examination stated about the cause of injury which could be the result of accident in more probability and could be the result of hitting of heavy machinery but not with bicycle etc.---Possibility of consultation and deliberation on the part of complainant party regarding involvement of accused could not be excluded on which ground other two accused had already been acquitted by Trial Court i.e. deliberations, consultations and benefit of doubt and against whom no appeal had been filed either by complainant party or by the State---Judgment of High Court while acquitting accused was not perverse and reasons given therefor were not fanciful, capricious, speculative or artificial and thus, it could not be interfered with---Appeal was dismissed.

Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11; Qamar Zaman v. Waseem Iqbal and 5 others 2004 SCMR 1209 and Abdullah v. The State and others 2006 SCMR 1466 rel.

Ch. Afrasiab Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.

S.M. Ishaq Khan Senior Advocate Supreme Court for Respondent No.1.

Nemo for Respondents Nos.2 and 3.

Ms. Yasmeen Sehgal, D.P.G. for Respondent No.4.

Date of hearing: 19th April, 2007.

2007 S C M R 1682

[Supreme Court of Pakistan]

Present: Javed Iqbal, Actg. C.J. and Sardar Muhammad Raza Khan, J

LAHORE DEVELOPMENT AUTHORITY and others----Petitioners

Versus

SULTAN AHMAD and another----Respondents

Civil Appeal No.2721 of 2006, decided on 31st May, 2007.

(On appeal from the judgment, dated 3-10-2006 passed by the Lahore High Court, Lahore, in Writ Petition No.10527 of 2006).

Civil Procedure Code (V of 1908)---

----O. VI, R. 17---Amendment of pleadings---Written statement, amendment of---Scope--Trial Court refused to allow defendant to amend its written statement---Order passed by Trial Court was maintained by lower Appellate Court as well as by High Court in exercise of revisional jurisdiction---Validity---Allowing or refusing to allow amendment of pleadings was an act, which hit at the very root of the attack or defence of a party, as the case might be---Parties could not lead evidence beyond their pleadings and hence it affected the production of evidence as well---Case of party was most likely to be seriously jeopardized, if amendment was refused in genuine cases---Question of amendment was not of such an interlocutory nature, which could subsequently be rectified at the time of final decision of case---While declining to interfere on such grounds, High Court had fallen into material irregularity---Judgment passed by High Court was set aside and defendant was allowed to amend its written statement subject to payment of cost---Appeal was allowed.

Qamar-uz-Zaman, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record (absent) for Petitioners.

Ch. M. Zahoor Nasir, Advocate Supreme Court and Haji M. Rafi Siddiqui, Advocate-on-Record (absent) for Respondents.

Date of hearing: 31st May, 2007.

2007 S C M R 1684

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Raja Fayyaz Ahmad and Ghulam Rabbani, JJ

BASHIR AHMED KHAN----Appellant

Versus

SHAMAS-UD-DIN and another----Respondents

Civil Appeal No.575 of 2005, decided on 25th April, 2007.

(On appeal against the judgment, dated 11-9-2000 passed by Lahore High Court, Lahore, in Civil Revision No.1238 of 1985).

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

----S. 147, O.XII, R.6, O.XV, R.1 & O.XXXII, Rr.3, 7---Constitution of Pakistan (1973), Art.. 185 (3)---Leave to appeal was granted by Supreme Court to consider; whether respondent was appointed as guardian ad litem in suit filed by plaintiff; whether his appointment could be considered valid in absence on record of a notice to father of the minor or to any other of his guardians; whether provision of O.XXXII, R.3 C.P.C. was adhered to in making appointment to render a decree valid or otherwise on conceding statement by respondent; whether interest of minor was properly taken care of in true spirit of provision of O.XII, R.6 or O.XV, R.1, C.P.C., when conceding statement filed by alleged guardian was not considered to fall within the provision of an agreement or compromise as envisaged by S.147 or by O.XXXII, R.7 C.P.C.; and what would be the effect of testimony of respondent on decree when he stated that he was never appointed as guardian of minor and that he had never filed any written statement in suit instituted against the minor.

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

----S. 42---Civil Procedure Code (V of 1908), S.147, O.XII, R.6, O.XV, R.1, & O.XXXII, Rr.3, 7---Declaration of title---Conceding statement by guardian ad litem---Effect---Concurrent findings of fact by two courts below---Suit filed against minor was decreed in favour of plaintiff', on the basis of conceding statement made by his maternal uncle who was appointed guardian ad litem---Minor assailed the decree in a suit alleging fraud, which suit was decreed by Trial Court in favour of minor---Lower Appellate Court allowed the appeal and dismissed. the suit filed by minor---Judgment and decree passed by Lower Appellate Court were maintained by High Court in exercise of revisional jurisdiction---Validity---Suit was decreed by Trial Court on the basis of conceding written statement filed by guardian ad litem by invocation of O.XII, R.6, C.P.C. a provision distinct to one provided under O.XXXII, R.7 C.P.C.---High Court had rightly observed that O.XXXII, R.7, C.P.C. required that no compromise on behalf of a minor could be effected by his guardian except with express permission of Court---Suit against minor was not decreed on the basis of any compromise but in view of conceding written statement filed by guardian Ad litem under O.XII, R.6, C.P.C.---Supreme Court declined to disagree with the findings of High Court---Provision of O.XII, R.6, C.P.C. was discretionary with court to grant decree on admissions---Interest of minor being involved, it was all the more necessary for the court to have been cautious to grant decree on conceding written statement filed by his guardian ad litem, who was none else than his real maternal-uncle---Lower Appellate Court had taken note of the situation very carefully and had given satisfactory reasons before setting aside the decree of Trial Court---Concurrent findings of High Court and Lower Appellate Court, which suffered from no legal defect or infirmity warranted no interference---Appeal was dismissed.

Tariq Javed, Advocate Supreme Court for Appellant.

Malik Abdul Sattar Chughtai, Advocate Supreme Court for Respondents.

2007 S C M R 1690

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Actg. C.J. and Sardar Muhammad Raza Khan, JJ

MUHAMMAD DIN and others----Appellants

Versus

SHAMSHER and 8 others----Respondents

Civil Appeal No.2046 of 2006, decided on 5th June, 2007.

(On appeal from the judgment, of the Lahore High Court, Lahore, dated 4-4-2002 passed in Civil Revision No.1550-D of 1991).

Islamic Law---

----Inheritance---Uterine relation---Share---Principle of nearer in degree excludes the remoter---Applicability---Owner of, suit property having died unmarried was survived by mother and a sister---Mother married real paternal uncle of propositus, and out of that wedlock three sons and two daughters were born---Excluding 4/6 shares of mother and sister, Trial Court and Lower Appellate Court distributed remaining 2/6 share equally among all sharers as residuaries---High Court, in exercise, of revisional jurisdiction set aside judgments and decrees passed by two courts below---Validity---Three sons and two daughters had an edge over the rest of persons seemingly appearing in the same degree, as they were uterine brothers and sisters of propositus---Uterine brothers and sisters were placed in a degree nearer to the propositus as compared to the rest of collaterals and 2/6th share as residue would go to theirs---High Court had rightly set aside concurrent findings of two courts below---Hard question of fact about uterine relationship was illegally ignored by two courts below and it was a serious mis-appreciation of fact as well as of law---Supreme Court declined to interfere with judgment and decree passed by High Court---Leave to appeal was refused.

Zahid Hussain Khan, Advocate Supreme Court for Appellants.

Respondents: Ex parte.

Date of hearing: 5th June, 2007.

2007 S C M R 1692

[Supreme Court of Pakistan]

Present: Javed Iqbal, Abdul Hameed Dogar and Ch. Ijaz Ahmed, JJ

Sqn. Ldr. (R) UMEED ALI KHAN----Appellant

Versus

Dr. (Mrs.) SULTANA IBRAHIM and others----Respondents

Civil Appeal No.2060 of 2004, decided on 5th December, 2006.

(On appeal from the judgment, dated 23-9-2004 of the High Court of Sindh at Karachi passed in C.R.A. No.97 of 2001).

Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Art.59---Agreement to sell---Proof---Opinion of handwriting expert---Scope---"Sale receipt" and "sale agreement"---Distinction---Plaintiff claimed that defendant had agreed to sell her property to him and in lieu of sale consideration she had executed a sale receipt---Trial Court dismissed the suit but Lower Appellate Court relying upon report of handwriting expert decreed the suit in favour of plaintiff---Judgment and decree passed by Lower Appellate Court was set aside by High Court in exercise of revisional jurisdiction---Validity---"Receipt" and "sale agreement" were two distinct documents having their own peculiar characteristics, significance and import and both were not synonymous or interchangeable---Expert's evidence was only confirmatory or explanatory of direct or circumstantial evidence---Confirmatory evidence could .not be given preference where confidence inspiring and worthy of credence evidence was available---Opinion of handwriting expert was relevant but it did not amount to conclusive proof and it could be rebutted by overwhelming independent evidence---Was always risky to base findings of genuineness of writing on expert's opinion---Receipt could not be taken into consideration as its contents could not be proved and substantiated by leading any other cogent and concrete evidence---Even if receipt was signed by defendant, it could .not be proved that amount mentioned in it was received in lieu of the suit property---Agreement to sell had not been substantiated by any cogent, oral or documentary evidence---Plaintiff failed to substantiate his claim by leading any convincing or forthright evidence---Supreme Court declined to interfere with the judgment and decree .passed by High Court---Appeal was dismissed.

Mussarat Shaukat Ali v. Safia Khatoon 1994 SCMR 2189 and Khair-ul-Nisa v. Muhammad Ishaque PLD 1972 SC 25 distinguished.

Hari Singh v. Sardarni Laehhmi Devi AIR 1921 Lah. 12.6; Saadat Sultan v. Muhammad Zahur Khan 2006 SCMR 193 and. Shabbir Hussain v. The State 1968 SCMR 1126 ref.

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 Twari 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. Ali Nawaz Gardezi PLD 1963 Lah. 141; Indar Datt v. E. 1931 L. 408; Ladharain Narsinghdas v. E. 1945 5.4; Saadat Sultan v. Muhammad Zahur Khan 2006 SCMR 193; Hari Singh v. Sardari Lachhmi Devi AIR 1921 Lah. 126 and Shabbir Hussain v. The State 1968 SCMR 1126 rel.

Sahibzada Ahmad Raza Khan Qasuri, Senior Advocate Supreme Court for Appellant.

Shahenshah Hussain, Advocate Supreme Court for Respondents.

Date of hearing: 5th December, 2006.

2007 S C M R 1698

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Actg. C.J. and Sardar Muhammad Raza Khan, JJ

ZARAI TARAQTATI BANK LIMITED and others----Petitioners

Versus

MUSHTAQ AHMED KORAI----Respondent

C.P.L.A. No.445 of 2007, decided on 16th May, 2007.

(On appeal from the order, of High Court of Sindh, Sukkur Bench, Sukkur dated 28-2-2007 passed in C.P. No.D-951 of 2006).

Service Tribunals Act (LXX of 1973)---

----S. 2-A---Constitution of Pakistan (1973), Art.185(3)---Reinstatement of employee---Past and closed transaction---Termination of respondent was set aside by Service Tribunal and he was reinstated in service with back benefits---Bank (employer) did not file any appeal against the judgment passed by Service Tribunal and after the Supreme Court had declared S.2-A of Service Tribunals Act, 1973, as repugnant to provisions of Art.212 of the Constitution, the Bank withdrew reinstatement order---High Court in exercise of constitutional jurisdiction set aside the withdrawal order---Validity---Bank raised no grievance against judgment of Service Tribunal for a period of seven years---Bank, for all intents and purposes, had accepted and acknowledged the finality of judgment passed by Service Tribunal in favour of respondent---No legal and moral justification existed to reopen the case of respondent which had attained finality and was a past and closed transaction for all purposes---View taken by High Court had done complete justice to the lis and Supreme Court declined to take different view---Leave to appeal was refused.

Muhammad Mubeen-us-Salim v. Federation of Pakistan PLD 2006 SC 602 and Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 rel.

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

Nemo for Respondent.

Date of hearing; 16th May, 2007.

2007 S C M R 1702

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Nasir-ul-Mulk, JJ

INAYAT----Appellant

Versus

NADAR KHAN----Respondent

Civil Appeal No.30 of 2004, decided on 17th January, 2007.

(On appeal from the judgment of Lahore High Court, Lahore, dated 8-12-2003 passed in Civil Revision No.372 of 2000).

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

----S. 13---Civil Procedure Code (V of 1908), S.115---Right of pre-emption, exercise of--Talb-i-Muwathibat---Maghrab Wela time---Scope---Concurrent findings of fact by the courts below---Revisional jurisdiction of High Court---Reappraisal of evidence---Mixed question of law and facts---Pre-emptor .stated in plaint that he made Talb-i-Muwathibat at about 7 PM while in evidence his witnesses stated that it was "Maghrab Wela", when Talb-i-Muwathibat was made by him---High Court in exercise of revisional jurisdiction set aside the concurrent judgments and decrees passed by two court below in favour of pre-emptor and dismissed the suit---Validity---Mere fact that in plaint instead of giving time of making Talb-i-Muwathibat "Maghrab Wela" it was mentioned 7 PM, would not be sufficient to negate the claim of pre-emptor of making jumping demand for exercise of right of pre­emption---"Maghrab Wela" in general terms was not confined only to Maghrab prayer time, rather it continued till start of "Isha Wela"---Difference of time pointed out by High Court was of no significance to non-suit the pre-emptor---High Court having misread the evidence, had reversed co-current finding of two courts on question of performance of Talb-i-Muwathibat in revisional jurisdiction---Interference in revisional jurisdiction in concurrent findings of fact even if erroneous, on a question of tact or mixed question of law and facts through reappraisal of evidence was beyond the scope of such jurisdiction---High Court having misconceived the factual position regarding time of performance of Talb­i-Muwathibat, and travelling on wrong premises had drawn conclusion contrary to law and facts of the case---High. Court was not correct in reversing concurrent findings of two courts on mixed question of law and fact in revisional jurisdiction through reappraisal of evidence---Supreme Court set aside the judgment and decree passed by High Court and restored that of Trial Court---Appeal was allowed.

Hafiz-ur-Rehman, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellant.

M. Rafiq Warriach, Advocate Supreme Court for Respondent.

Date of hearing: 17th January, 2007.

2007 S C M R 1705

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry C.J., Faqir Muhammad Khokhar and Mian Shakirullah Jan, JJ

COLLECTOR OF CUSTOMS through Additional Collector, Hub----Appellant

Versus

CUSTOMS EXCISE AND SALES TAX APPELLATE TRIBUNAL, KARACHI BENCH and others----Respondents

Civil. Appeal No.344 of 2002, decided on 24th February, 2006.

(On appeal from the judgment, dated 6-12-2001 passed by High Court of Balochistan, Quetta in Sales Tax Appeal No.1 of 2000).

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

----Ss. 3(1), 7, 13 & Sixth Sched. Item No.41---Acquisition/production of limestone and clay etc. by assessee from its quarries and their consumption in manufacture of cement as raw material---Liability of assessee to pay sales tax on such raw material, when end product (cement) was exempt from levy of sales tax---Scope---Such raw material for not being exempt under S.13 of Sales Tax Act, 1990 would come within ambit of taxable supply---Taxable supply was not confined or limited to end product or goods manufactured, but would include such goods involved in some way with progress, promotion, advancement of business or any other taxable activity---Such raw material was supplied and used in the course of or in furtherance of taxable activity of assessee i.e. manufacture and supply of cement (end product) to other persons in the market---Levy of sales tax would start from point of supply and would have no relevance with any activity prior to supply irrespective of the source, which might be a manufacturing one or a mineral one---Input tax would be adjusted from output tax, provided end product was subject to levy of sales tax---Had cement not been exempted, assessee would have been entitled to adjustment of input tax as provided under S.7 of Sales Tax Act, 1990---Such raw material and its supply was a taxable supply made in the course or in furtherance of manufacturing cement, thus, was chargeable to sales tax---Principles.

Advanced Law Lexicon, Third Edition 2005 P.1953 and Oxford English Dictionary, Vol. IV, P.619 ref.

(b) Words and phrases----

---"Furtherance"---Definition.

Advanced Law Lexicon, Third Edition 2005 P.1953 and Oxford English Dictionary, Vol. IV, P.619 ref.

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

Barrister Ch. Muhammad Jameel, Senior Advocate Supreme Court and Raja Sher Muhammad Khan, Advocate-on-Record for Respondents.

Date of hearing: 24th February, 2006.

2007 S C M R 1711

[Supreme Court of Pakistan]

Present: Javed Iqbal, Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

CHIEF ADMINISTRATOR AUQAF, PUNJAB----Petitioner

Versus

Haji MUHAMMAD ASHRAF through L.Rs.----Respondents

Civil Petition No.3725/L of 2002, decided on 5th April, 2007.

(On appeal from the judgment, dated 26-8-2002 of the Lahore High Court, Lahore, passed in F.A.O. No. 109 of 1986).

West Pakistan Waqf Properties Ordinance (XXVIII of 1961)---

----S. 7---Auqaf (Federal Control) Act (LVI of 1976), S.11---Constitution of Pakistan (1973), Art. 185 (3)---Waqf property---Notification---Structure over Auqaf land---Authorities issued notification on 15-10-1977 and took over the property in question being Auqaf property---Notification was "published in official Gazette on 12-3-1978 and it was assailed by respondents on 9-4-1978---Application filed by respondents was allowed by Trial Court and authorities were allowed to recover rent of the land only as the structure was raised by the respondents---Order passed by Trial Court was maintained by High Court---Plea raised by authorities was that the notification was challenged beyond the period of limitation---Validity---Record keeper of authorities stated that notification was received on 18-3-1978 for printing. thus petition filed on 9-4-1978, was within time---Revenue record showed that disputed land was in the ownership of the persons from whom it was purchased by respondents---Authorities had failed to rebut the plea of respondents about ignorance of nature of land or that it was ever used for any Waqf purposes---Structures were not Waqf properties while the other immovable properties were such property and Auqaf department was entitled to recover rent from occupants of disputed land which was Waqf property---Judgment passed by High Court was in accordance with law and did not warrant interference by Supreme Court---Leave to appeal was refused.

Chief Administrator of Auqaf, Punjab, Lahore v. Mian Ghulam Fareed and others 1993 SCMR 643 and Haji Ghulam Rasool and others v. The Chief Administrator of Auqaf, West Pakistan PLD 1971 SC 376 rel.

Riaz Kiyani, Advocate Supreme Court for Petitioner.

Ashtar Ausaf Ali, Advocate Supreme Court for Respondents.

Date of hearing: 5th April, 2007.

2007 S C M R 1714

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Mian Shakirullah Jan, JJ

MUBARIK ALI through L.Rs.----Appellants

Versus

AMROO KHAN through L.Rs.----Respondents

Civil Appeal No.1038 of 2004, decided on 10th April, 2007.

(On appeal from the judgment, dated 29-10-2001 passed by Lahore High Court, Lahore, in Civil Revision No.700 of 1995).

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

----S. 42---Declaration of title---Oral sale---Proof---Plaintiff claimed that when decision was made by Trial Court in favor of defendant, he had orally sold the suit .property to him---Trial Court as well as Lower Appellate Court decided the suit and appeal in favour of plaintiff---High Court, in exercise of revisional jurisdiction set aside the concurrent judgments and decrees passed by two Courts below and dismissed the suit---Validity---Immovable property was sold by defendant through oral transaction without even single piece of paper might be in the form of a receipt of the amount or might it be in the form of an agreement to sell---If the properly had been sold after the decision of court of first instance then there was no occasion for defendant to pursue the case before Lower Appellate Court and after having an adverse decision to go to High Court by filing second appeal and litigating it for about further ten years before two appellate forums, i.e. Lower Appellate Court and High Court---It was not the case of plaintiff that such prosecution of case by defendant was at his instance or for his benefit or that he had also contributed towards expenses of litigation---Case of defendant was further strengthened by making a report with police about taking possession forcibly of the property by plaintiff' as factum of possession of plaintiff otherwise would have gone in his favour; it was a clear case of collusion between plaintiff and the previous litigant with defendant, which deprived the defendant to reap the fruit of the decree passed by the court in his favour in previous litigation---No injustice could .be done greater than the one in the present case if the suit of plaintiff succeeded by defeating the lawful process of obtaining possession by defendant through execution in roundabout manner through a collusion---Supreme Court declined to interfere with the judgment and decree passed by High Court---Appeal was dismissed.

Sheikh Muhammad Bashir Ali and others v. Sufi Ghulam Mohi­-ud-Din 1996 SCMR 813; Abdul Hakeem v. Habibullh and 11 others 1997 SCMR 1.139; Roazi Khan and others v. Nasir and others 1997 SCMR 1849; Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568; Sheikh Muhammad v. Hashmat Sultana 1989 SCMR 34; Kanwal Nain's case PLD 1983 SC 53;-Muhammad Bakhsh v. Ellahi Bakhsh and others 2003 SCMR 286 and Maj. Rashid Beg. v. Rehmant Ullah Khan and 4 others PLD 2001 SC 443 ref.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Concurrent findings of fact by the courts below---Interference in judgments of Courts below in exercise of revisional jurisdiction was justified when findings were based on conjectural presumptions, erroneous assumptions of facts and wrong proposition of law and where unreasonable view on evidence had been taken.

Ch. Riyasat Ali, Advocate Supreme Court for Appellants.

M. Munir Peracha, Advocate Supreme Court for Respondents.

Date of hearing: 10th April, 2007.

2007 S C M R 1719

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed and Hamid Ali Mirza, JJ

MUHAMMAD AKRAM and another----Appellants

Versus

Mst. FARIDA BIBI and others----Respondents

Civil Appeal No.1478 of 2006, decided on 26th April, 2002

(On appeal from the judgment/order, dated 12-7-2006 passed by the Lahore High Court, Lahore, in Civil Revision No.344 of 2002).

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

----Ss. 6 & 13---Constitution of Pakistan (1973), Art. 185 (3)---Leave to appeal was granted by Supreme Court to consider contention of vendees that courts below had misread and misconstrued evidence in holding that pre-emptor had superior right of per-emption in respect of demised land and such finding of courts below was contrary to documentary evidence brought on record.

(b) Pleadings---

----Pleadings of parties are not substantive piece of evidence unless and until averments made in pleadings are proved from evidence in court or admitted by the other party.

Faqir Muhammad's case PLD 2003 SC 594 rel.

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

----O. XIII, R.4---Exhibiting of document---Effect---Document once brought on record and exhibited then the opposite party cannot challenge its admissibility in court---Court is duty bound to look into the document produced on record---Even if no objection was taken by the other side when the document was exhibited, the court is not prevented from adjudicating its nature, whether it is valid or not, or whether it is fake or not.

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

----Ss. 6 & 13---Qanun-e-Shahadat (10 of 1984), Art.72---Superior right of pre-emption---Onus to prove---Pre-emptors claimed to have superior right of pre-emption on the basis of being beneficiary of joint amenities and contiguity---Pre-emptors mainly relied upon Aks Shajra to prove their claim but did not produce Patwari to prove Aks Shajra---Trial Court dismissed the suit but Lower Appellate Court allowed the appeal of pre-emptors and decreed their suit---Judgment and decree passed by Lower Appellate Court was maintained by High Court---Validity---Burden was on pre-emptors to prove their claim that they had superior right of pre-emption as alleged but they .failed to discharge that burden as evident from Aks Shajra and other documents produced by them did not depict that the land in question was adjacent to the land of vendees---Aks Shajra was to be proved by pre-emptors by producing Patwari, therefore, the document did not explain and prove the fact of contiguity---Controversy between parties regarding contiguity was factual in nature hence it had to be proved through evidence---Record of rights could only prove factum of ownership of pre-emptors but could not resolve or prove factual controversy regarding contiguity---Such factual controversy was not proved by pre-emptors in accordance with law---High Court as well as Lower Appellate Court had committed material irregularity by misreading and non-reading of record, therefore, judgments and decrees passed by both the courts were set aside and suit filed by pre-emptors was dismissed---Appeal was allowed.

Mian Iqbal Mehmood Banday's case PLD 1995 SC 351; Faqir Muhammad's case 2003 YLR 1285; Amir Shah's case 1998 SCMR 593; Malik Muhammad Akram's case 2000 CLC 759 and Muhammad Jamal's case 1985 CLC 2353 ref.

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

----Art. 185(3)---Constitutional jurisdiction of Supreme Court---Scope---Supreme Court as ultimate Court in land, as a rule, should give due weight and consideration to opinion of courts below while exercising constitutional powers---Supreme Court does not meddle with the findings of fact reached by Lower Appellate Court or High Court when it is satisfied that the courts below are on the whole reasonable and findings are not arrived at by disregarding any provision of law or any accepted principle concerning appreciation of evidence---Such would be notwithstanding that a different view might also be possible.

Syed Fayyaz Ahmad Sherazi, Advocate-on-Record and Ghulam Farid Sanotra, Advocate Supreme Court for Appellants.

Khalid Mehmood, Advocate Supreme Court and Arshad Ali Ch. Advocate-on-Record for Respondents.

Date of hearing: 26th April, 2007.

2007 S C M R 1726

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Nasir-ul-Mulk, JJ

SAAD SALAM ANSARI----Appellant

Versus

CHIEF JUSTICE OF SINDH HIGH COURT, KARACHI through Registrar----Respondent

Civil Appeal No.1071 of 2006, decided on 18th January, 2007.

(On appeal from the judgment of Sindh Subordinate Judiciary Service Tribunal, dated 31-5-2006 passed in Service Appeal No.7 of 2003).

(a) Sindh Service Tribunals Act (XV of 1973)---

---S. 3-B---Sindh Civil Servants (Efficiency and Discipline) Rules, 1973, R.5(3)---Constitution of Pakistan (1973), Art.212 (3)---Leave to appeal was granted by Supreme Court to consider; whether the conduct and performance of judicial officer was such which warranted major penalty of removal from service without holding a regular inquiry into the allegations against him.

(b) Sindh Civil Servants (Efficiency and Discipline) Rules, 1973---

----R. 5---Conducting of inquiry---Procedure to be adopted---Regular inquiry, dispensing with---Principles---Authorized officer has to decide as to which of the two procedures provided in R.5 of Sindh Civil Servants (Efficiency and Discipline) Rules, 1973, has to be adopted---If authorized officer is in favour of adopting summary procedure, he should exercise such discretion with extra care so that no prejudice is caused to the civil servant facing departmental proceedings for the charge of misconduct---Decision regarding dispensation of regular inquiry always depends on the nature of charge and circumstances of each case---In a case in which charge cannot be established without recording evidence and providing a proper opportunity to civil servant to cross-examine witnesses and also produce evidence in defence, dispensation of regular inquiry is not justified except in extraordinary circumstances.

(c) Sindh Civil Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 4 (1)(b)(iii) & 5 (3)---Sindh Service Tribunals Act (XV of 1973), S.3-B---Removal from service---Regular inquiry, dispensing with---Factual controversy---Misuse of power---Allegation---Judicial officer was alleged to be guilty of misconduct and he was removed from service without holding a regular inquiry---Allegation against judicial officer was that despite order passed by High Court, he proceeded with execution petition---Judicial officer in his reply to show cause notice categorically stated that he had no knowledge of the order of High Court regarding calling of record in ejectment petition and proceeded with execution petition in accordance with the requirement of law---Validity---Factual controversy regarding knowledge of order of High Court could not be ascertained without recording statements of concerned officials of the court or tenant or his counsel as the case might be, with right of cross-examination to the judicial officer---In absence of such evidence, knowledge of order of High Court, could not be attributed to the judicial officer---Presumption of law to the extent that an order or notice sent by registered post must have reached its destination, could be conveniently raised but the question whether such notice or order was in knowledge of a particular person, was a question of fact which could not be presumed without adducing evidence and providing a fair opportunity of cross-examination to witnesses and production of evidence in rebutial---Except in special circumstances, in departmental proceedings procedure of regular inquiry should be followed to prove charge of misconduct, which might have the consequence of major penalty of dismissal or removal from service and such inquiry might not be dispensed with in normal circumstances---Charge of misconduct based on allegation of misuse of power for extraneous consideration involving tactual inquiry was required to be proved through evidence and dispensation of regular. inquiry amounted to condemning the judicial officer unheard and refusing him right of defence---Judgment passed by Subordinate Judiciary Service Tribunal and order of removal from service were set aside and the judicial officer was reinstated in service---Competent Authority may, if so desire hold a proper enquiry into the matter against the appellant.

Dr. Muhammad Farogh Naseem, Advocate Supreme Court for Appellant.

Masood A. Noorani, Additional Advocate-General Sindh for Respondent.

Date of hearing: 18th January, 2007.

2007 S C M R 1736

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. and Mian Shakirullah Jan, J

COLLECTOR OF SALES TAX AND CENTRAL EXCISE, LAHORE----Appellant

Versus

WATER AND POWER DEVELOPMENT AUTHORITY and others----Respondents

Civil Appeal No. 512 of 2003, decided on 15th March, 2006.

(On appeal from the judgment dated 4-2-2002 passed by Lahore High Court, Lahore in R.P. No.6147 of 1994).

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

----Ss. 3(1) & 13---Pakistan Water and Power Development Authority Act (XXXI of 1958), S.8---Constitution of Pakistan (1973), Art.185(3) & Fourth. Sched., Part-II, Item No.3---Printing material and stationery prepared by WAPDA for its own consumption---Supreme Court granted leave to appeal to consider, whether sales tax was leviable on such material and stationery and law laid down in the case reported as 2001 SCMR 1376 had been properly applied.

Shaikhoo Sugar Mills Ltd. and another v. Government of Pakistan and others 2001 -SCMR 1376 ref.

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

----S.3(1)(a)---Expression "in the course of"' as used in S.3(1)(a) of Sales Tax Act, 1990---Meaning.

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

----S3(1)(a---Expression "in furtherance of" as used in S.3(1)(a) of Sales Tax Act, 1990---Connotation.

Oxford English Dictionary, Volume-IV, P.619 ref.

(d) Words and phrases---

----"Furtherance"---Definition.

Advanced Law Lexicon, Third Edition, 2005, P.1953 and Oxford English Dictionary, Volume-IV, P.619 ref.

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

----Ss.3(1), 7 & 13---Pakistan Water and Power Development Authority Act (XXXI of 1958), Ss.8, 13 & 25---Constitution of Pakistan (1973), Arts.165 & 165-A & Fourth Sched., Part-II, Item No.3---Printing material and stationery prepared by WAPDA for its own consumption--Liability of WAPDA to pay sale's tax on such material and stationery---Scope---Taxable supply was not confined for limited to end product or goods manufactured, but would include such goods involved in some way .with progress, promotion, advancement of business/activity taxable activity---WAPDA was carrying on business as envisaged under S.3(1)(a) of Sales Tax Act, 1990---Supply of stationery was not exempt from sales tax under S.13 of Sales Tax Act, 1990---Supply of such stationery for private business or non-business use without intervening another person would be a taxable supply made in the course of or in furtherance of business i.e. activity of generation and selling/supplying electricity being carried on by WAPDA in the form of business---Exemption available under Art.165 of the Constitution would not be available to a statutory Corporation from payment of taxes in view of incorporation of Art.165-A in the Constitution, which legal proposition would apply in the case of WAPDA also---Such stationery was, thus, chargeable to sales tax---WAPDA would be entitled to adjustment of input tax from output tax, provided its case came within ambit of S.7 of Act, 190---Principles.

Shaikhoo Sugar Mills Ltd. and another v. Government of Pakistan and others 2001 SCMR 1376; Karachi Development Authority (KDA) v. C.B.R. 2000 Appeal Cases 53; Commissioner of Sales Tax and others v. Huuza Central Asian Textile and Woolen Mills Ltd. and others 1999 SCMR 526 and Central Board of Revenue and another v. Sindh Industrial Trading Estate Limited PLD 1985 SC 97 ref.

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

----S.3(1)(a)---1xpression "business" as used in Sales Tax Act, 1990---Connotation stated.

The expression `business' though has not been defined in the Sales Tax Act, 1990, yet in the ordinary parlance it is used with varying connotations and has been defined by the Courts including those from foreign jurisdiction from time to time as it means any trading 'activity accompanied be regularity of transactions intended for the purpose of making profit; it is an activity carried on continuously in an organized manner with a set purpose and with a view to earn profits; it is used in the sense of an occupation or profession, which occupies the time, attention and labour of a person, normally with the object of making profit not for sport and pleasure.

The State of Andhra Pradesh v. Messrs H. Abdul Bakhi and Bros AIR 1965 SC 531 and Messrs Hindustan Steel Ltd. v. The State of Orissa AIR 1970 SC 253 rel.

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

----S.3(1)---Sales tax, levy of---Essential conditions stated.

The charging section 3 of Sales Tax Act, 1990 has prescribed certain conditions for levying of the sales tax, which are that (1) a taxable supply made (ii) in the course or furtherance of business. The taxable supply and business are two different expressions with different concepts and operate in their respective fields. The quantum of tax liability is determined on the basis of value of taxable supply, while the liability to pay tax under section 3(1)(a) of the Sales Tax Act, 1990arises only when the supply is made in the course or in furtherance of business.

A. Karim Malik, Senior Advocate Supreme Court for Appellant.

Mian Ashiq Hussain, Advocate Supreme Court for Respondents.

Date of hearing: 15th March, 2006.