SCMR 2008 Judgments - Pakistan Legal Archive

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SCMR 2008 SUPREME COURT 1 #

2008 S C M R 1

[Supreme Court of Pakistan]

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

Malik SALEH MUHAMMAD GUNJIAL----Appellant

Versus

KAMRAN ELAHI BANDIAL and others----Respondents

Civil Appeal No.723 of 2006, decided on 6th August, 2007.

(On appeal from the judgment, dated 28-4-2006 passed by Election Tribunal Lahore, in Election Petition No.50 of 2002).

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

---S. 55(3)---Pakistan Air Force Act (VI of 1953), Ss.20, 38 & 73---Constitution of Pakistan (1973), Art.63(1)(i)---Election petition---Returned candidate having been dismissed from service bf Air Force for absence from duty---Effect---Court Martial of returned candidate had not been held, which would not mean that he had not been found guilty of absence from duty---Absence from duty itself would be a misconduct on the part of a person in Government service---Returned candidate was disqualified to contest election of Provincial Assembly---Election petition was accepted in circumstances.

S.M. Ayub v. Syed Ausaf Shah and others PLD 1967 SC 486 and Iqbal Zafar Jhagra v. Khalilur Rehman 2000 SCMR 250 ref.

Secretary Education v. Mustamir Khan 2005 SCMR 17 and Imtiaz Ahmed Lali v. Ghulam Muhammad Lali PLD 2007 SC 369 rel.

Muhammad Munir Peracha, Advocate Supreme Court for Appellant.

Syed Iftikhar Hussain" Gillani, Senior Advocate Supreme Court for Respondent No.1.

Nemo for Respondents Nos.2 and 3.

Date of hearing: 6th August, 2007.

SCMR 2008 SUPREME COURT 6 #

2008 S C M R 6

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Nasir-ul-Mulk, Ch. Ijaz Ahmed and Syed Jamshed Ali, JJ

AKHTAR ALI and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.274 and 275 of 2003, decided on 17th September, 2007.

(On appeal against the judgment, dated 11-3-2002 passed by the Lahore High Court, Lahore, in Criminal Appeals Nos.917 and 1043 of 1998, 98/J and Murder Reference No.242-T of 1998).

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

----Ss. 302/452/394/397/449/109/34---Anti-Terrorism Act (XXVII of 1997), S.7---Reappraisal of evidence---Acquittal of five accused and conviction of remaining three accused by Trial Court on basis of same evidence---Validity---F.I.R. had been registered against- unknown persons on basis of statement of complainant with unexplained delay of 10/11 hours---Complainant in his supplementary statement had nominated all accused persons while attributing to them specific role and specific injuries inflicted by them to deceased---According to complainant, one convicted accused was residing in same Dera, where occurrence had taken place---Complainant had taken altogether U-Turn from his previous stand, which had created serious doubts in prosecution story---Reliance could not be placed on supplementary statement of complainant for being obviously false---Case of convicted accused could not be distinguished from acquitted co-accused---Such unexplained delay in lodging of F.I.R. had provided enough time to complainant to deliberate, consult and fabricate story---Such unexplained delay in lodging of F.I.R. would lead to inference that occurrence was un-witnessed---Possibility of false involvement of convicted accused could not be ruled out---Credibility of ocular evidence was not divisible---Accused could not be convicted on basis of same evidence without independent corroboration---Subsequent supplementary statement of complainant could not be equated with F.I.R. or read as part of F.I.R., rather same would be considered as statement recorded under S.161, Cr.P.C.---Prosecution had not proved its case against convicted accused beyond any shadow of doubt---Defence plea appeared to be reasonable, thus, convicted accused were entitled to benefit of doubt as of right and not as a matter of grace---Convicted accused were acquitted of the charge in circumstances.

Muhammad Rafique's case 1994 SCMR 1169; Qalab Ali's case 2005 SCMR 1857; Rahab's case 2001 SCMR 1745; Rahab's case 2002 SCMR 233; Khalid Javed's case 2003 SCMR 1419; Ghulam Muhammad's case PLD 1975 SC 588; Sheral alias Sher Muhammad's case 1999 SCMR 697; Ata Muhammad's case 1995 SCMR 599; Faiz Bakhsh's case PLD 1959 P.C. 24; Nadia's case 42 Cr.LJ 53; Muhammad's case PLD 1954 FC 84; Shear Bahadar's case 1972 SCMR 651; Muhammad Afsar's case PLD 1954 FC 171; Nadeem-ul-Haq's case 1985 SCMR 510 and Chandoo's case 1986 SCMR 720 rel.

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

----Ss. 302/452/394/397/449/109/34---Reappraisal of evidence---Eyewitnesses found to have falsely implicated five out of eight accused---Effect---Conviction of remaining three accused could not be based on same evidence without independent corroboration.

Ghulam Muhammad's case PLD 1975 SC 588; Sheral alias Sher Muhammad's case 1999 SCMR 697 and Ata Muhammad's case 1995 SCMR 599 rel.

----Ss. 302/452/394/397/449/109/34---Reappraisal of evidence---Ocular evidence, credibility of---Not divisible.

Faiz Bakhsh's case PLD 1959 P.C. 24; Nadia's case 42 Cr.LJ 53; Muhammad's case PLD 1954 FC 84; Shear Bahadar's case 1972 SCMR 651 and Muhammad Afsar's case PLD 1954 FC 171 rel.

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

----Ss. 302/452/394/397/449/109/34---Reappraisal of evidence---Improvements made by witness in his statement subsequently to strengthen prosecution case, could not be relied upon---Principles.

When a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness has improved his statement dishonestly, therefore, his credibility becomes doubtful on the well-known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witness.

Hadi Bakhsh's case PLD 1963 Kar. 805 rel.

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

----Ss. 302/452/394/397/449/109/34---Reappraisal of evidence---F.I.R., unexplained delay of 10/11 hours in lodging of---Effect---Such delay would lead to inference that occurrence was un-witnessed.

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

----Ss. 154 & 161---F.I.R.---Scope and evidentiary value---Statement of complainant recorded during investigation after registration of Evidentiary value stated.

F.I.R. is the document, which is entered under section 154, Cr.P.C. into book maintained at the police station on the application of the complainant. It brings the law into motion. The police under section 156, Cr.P.C. starts investigation of the case. Any statement or further statement of the complainant recorded during investigation by the police would neither be equated with F.I.R. nor read as part of it, therefore, subsequent supplementary statement is also considered as statement recorded under section 161, Cr.P.C. which is not signed or thumb-marked.

Khalid Javed's case 2003 SCMR 1419 rel.

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

----S. 302---Reappraisal of evidence---Benefit of doubt---Defence plea appeared to be reasonable---Prosecution failed to prove its case against accused beyond any shadow of doubt---Effect---Accused would be entitled to benefit of doubt as of right and not as a matter of grace.

Nadeem-ul-Haq's case 1985 SCMR 510 and Chandoo's case 1986 SCMR 720 rel.

Iqbal Bhatti, Advocate Supreme Court for Appellants (in Criminal Appeal No.274 of 2003).

Jehanzeb Tamman, Advocate Supreme Court for Appellants (in Criminal Appeal No.275 of 2003).

Ms. Yasmin Sehgal, D.P.-G. for the State.

Date of hearing: 17th September, 2007.

SCMR 2008 SUPREME COURT 14 #

2008 S C M R 14

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Actg. C.J. and Sardar Muhammad Raza Khan, J

Syed ABDUS SAMAD PIRZADA----Appellant

Versus

GOVERNMENT OF PUNJAB through Secretary Finance, Finance Department, Punjab Secretariat, Lahore and another----Respondents

Civil Appeal No.1399 of 2006, decided on 26th June, 2007.

(On appeal from the judgment, dated 28-1-2006 passed by Punjab Service Tribunal, Lahore in Appeal No.316 of 2005).

Pakistan Broadcasting Corporation Act (XXXII of 1973)---

----S. 12---Employee of Pakistan Broadcasting Corporation drawing basic pay at Rs.2,800 in BPS-18 as Assistant News Editor---Such employee left Corporation after joining Education Department as Assistant Professor (BPS-18) through Public Service Commission and proper channel---Fixation of pay of such employee in Education Department at Rs.2,100 as initial stage of BPS-18---Validity---Such employee would be entitled to protection of his last pay drawn in Corporation in BPS-18 from the date of joining Education Department---Principles.

Pakistan Broadcasting Corporation's case 1995 SCMR 1593; Amjad Hussain's case 1998 SCMR 1442 and Nafeez Ahmad's case 2000 SCMR 1864 rel.

Farrukh Javed Panni, Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Appellant.

Mrs. Afshan Ghazanfar, Assistant Advocate-General Punjab, for Respondents.

Date of hearing: 26th June, 2007.

SCMR 2008 SUPREME COURT 17 #

2008 S C M R 17

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Ch. Ijaz Ahmed JJ

Messrs NEW SHAHEEN TRADING COMPANY through Managing Director---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Commerce and 2 others---Respondents

Civil Petition No.97 of 2006, decided on 7th February, 2007.

(On appeal from the judgment dated 12-12-2005 passed by High Court of Balochistan, Quetta in Constitutional Petition No.727 of 2005).

(a) Imports and Exports (Control) Act (XXXIX of 1950)---

----S. 3---New export policy imposing ban on export of goods, enforcement of---Effect---Export of goods under old export policy in such circumstances could not be claimed as of right in terms of agreement already executed between private parties---Principle of promissory estoppel would not apply to legislative power of Government to amend law and change policy---Agreement between private parties might have binding force inter se parties, but same could not be enforced against third party or Government without acknowledgment---Principles.

The export policy is framed in the public interest and on the change of policy, the transaction under old policy already in the process would be completed, but after enforcement of new policy, no one can claim export of goods under old policy as of right in the light of principle of promissory estoppel on the basis of an agreement executed between the private parties as the principle of estoppel is not applicable to the legislative power of the Government to amend the law and change the policy in the public interest. There is no cavil to the proposition that unless it is specifically mentioned in the notification itself that it is applicable from the previous date, it shall have no retrospective effect to take away the legal right already accrued in favour of a person. An agreement between the private parties may have binding force inter se parties, but the same cannot be enforced against the third party or the Government without acknowledgement.

Aman Ullah Khan v. Secretary Ministry of Commerce and others C.P.L.A. No.99-Q of 2004; Zamir Ahmed Khan v. Government of Pakistan PLD 1978 SC 327 and Anound Power Generation v. Federation of Pakistan PLD 2004 SC 340 ref.

(b) Estoppel---

----Promissory estoppel---Applicability---Principles of promissory estoppel would not apply to legislative power of Government to amend law and change its policy.

----Rule of beneficial interpretation could not be claimed on unreasonable construction of law.

Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Petitioner.

Raja Muhammad Irshad, D.A.-G. with Raja Abdul Ghafoor, Advocate-on-Record for Respondents.

Date of hearing: 7th February, 2007.

SCMR 2008 SUPREME COURT 22 #

2008 S C M R 22

[Supreme Court of Pakistan]

Present; Tassaduq Hussain Jillani and Nasir-ul-Mulk, JJ

DISTRICT COLLECTOR/OFFICER (REV.) FAISALABAD----Petitioner

Versus

Rana ZAHID TAUSEEF and others----Respondents

Civil Petitions Nos.529 and 530-L of 2002, decided on 19th April, 2006.

(On appeal from the order, dated 7-11-2002 of the Lahore High Court, Lahore, passed in Writ Petitions Nos.]. 3947 and 13948 of 1999).

Displaced Persons (Compensation and Rehabilitation) Act (XXVIII) of 1958)---

----S. 10---Constitution of Pakistan (1973), Art.185(3)---Transfer of evacuee property---Leave to appeal had been sought by the petitioner on the ground that constitutional petitions filed by the respondents, were not maintainable as alternate remedy was available to them under West Pakistan Land Revenue Act, 1967-7-Validity---Respondents admittedly were successors-in-interest of genuine allottees of property in one case and auction purchaser in the other and their title in respect of said properties remained unchallenged---Judgment of High Court, did speak of the cases of those P.T.Ds., which were issued till the issuance of notification dated 12-6-1988 dealing with exchange of evacuee property with State property---High Court did observe that said category of persons could be allowed to retain the property notwithstanding 'the notification of exchange dated 3-1-1958---P.T.Ds., with regard to properties subject matter of that petition were issued in 1964 long before notification dated 12-6-1988---Said judgment had attained finality as counsel for petitioner had not referred any judgment of the Supreme Court which could have interfered with said judgment---Case of the respondents squarely fell within the ambit of cases which had been adverted to in the operative part of judgment of the High Court---Respondents in' circumstances had rightly been granted relief through impugned judgment---Impugned judgment being unexceptionable, petition was dismissed.

Sh. Khalid Habib, Advocate Supreme Court for Petitioner.

S.M. Masood, Advocate Supreme Court for Respondents Nos.1 to 4.

Date of hearing: 19th April, 2006.

SCMR 2008 SUPREME COURT 26 #

2008 S C M R 26

[Supreme Court of Pakistan]

Present; Faqir Muhammad Khokhar and Ghulam Rabbani, JJ

MUHAMMAD ALI RIAZ- -Appellant

Versus

Mst. NASIM NAZIR AHMED SULTAN and another----Respondents

Civil Appeal No.150 of 2005, decided on 12th February, 2007.

(On appeal from the judgment/order, dated 11-1-2005 passed by Lahore High Court, Multan Bench, Multan in Civil Revision No.912 of 1995).

Specific Relief Act (I of 1877)---

----S. 12---Constitution of Pakistan (1973), Art. 185---Appeal to Supreme Court---Suit for specific performance of agreement---Trial Court and Appellate Court below concurrently decreed suit, but High court vide impugned judgment, set aside said concurrent judgments and decrees and dismissed suit---Appellant had filed appeal against judgment of the High Court---Scope---High Court noticed material discrepancies in evidence of witnesses produced by appellant and counsel for appellant had failed to clarify the position as to said discrepancies apparent on the face of record---Revenue record for the relevant year was not produced to show that the possession of the suit land was obtained by the appellant contemporaneously with the execution of the agreement to sell---Trial court as well as the first Appellate Court had fallen in error of misreading and non-reading of material evidence on record---No defect or other 'legal infirmity was found in the judgment of the High Court so as to warrant interference by the Supreme Court.

Rana Muhammad Arif, Advocate Supreme Court for Appellant.

Nemo for Respondent No.1.

Respondent No.2 in person.

Date of hearing: 12th February, 2007.

SCMR 2008 SUPREME COURT 28 #

2008 S C M R 28

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Actg. C.J., Saiyed Saeed Ashhad and Hamid Ali Mirza, JJ

JAVED KHALIQUE----Petitioner

Versus

MUHAMMAD IRFAN----Respondent

Civil Petition No.189-K of 2007, decided on 15th March, 2007.

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

----S. 15(2)(vii)---Constitution of Pakistan (1973), Art.185(3)-Eviction application---Bona fide personal need of landlord---Proof---Normally, landlord must be allowed benefit of use of his premises, unless any circumstance was brought on record indicating his requirement to be mala fide---Landlord had to prove his need to be genuine at the time of filing eviction proceedings; and that he had not got other property vacated, which was suitable for his need asked for---Principles.

Syed Abdul Haleem Agha and others v. Sikandar Khan C.P. No.2585 of 2005; S.M. Nooruddin and 9 others v. SAGA Printers 1998 SCMR 2119; Bashir Ahmed v. Muhammad Shafi 1989 SCMR 538 and Nooruddin and others v. Asghar Ali and others 1968 SCMR 1087 rel.

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

----S. 15---Constitution of Pakistan (1973), Art.185(3)-Eviction application---Suppression of material facts by landlord in eviction application and evidence---Effect---Landlord would become disentitled to claimed relief.

----S. 15(2)(vii)---Constitution of Pakistan (1973), Art.185(3)-Eviction application---Bona fide personal need of landlord, ground of---Enhancement of rent by landlord from time to time---Effect---Such enhancement would not disentitle landlord to seek eviction of tenant on such ground in changed circumstances.

Altaf Hussain v. Mst. Nuzhat-un-Nisa PLD 2000 SC 67 rel.

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

----S. 15(2)(vii)---Constitution of Pakistan (1973), Art.185(3)-Eviction application---Bona fide personal need of landlord, ground of---Concurrent findings of fact in favour of landlord rendered by Rent Controller and High Court after proper appraisal of evidence on record and law---Supreme Court declined to interfere in such findings by refusing leave to appeal.

Abrar Hassan, Advocate Supreme Court and Sulemen Habibullah, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 14th July, 2007.

SCMR 2008 SUPREME COURT 32 #

2008 S C M R 32

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Hamid Ali Mirza and Ghulam Rabbani, JJ

SHER MUHAMMAD BALOCH----Petitioner

Versus

THE STATE and another----Respondents

Criminal Petition No.11-K of 2007, decided on 4th September, 2007, (a) Penal Code (XLV of 1860)---

----S. 302(b)-Criminal Procedure Code (V of 1898), S.342---Constitution of Pakistan (1973), Art.185(3)---Trial Court awarded sentence of life imprisonment to accused---High Court acquitted accused finding him not guilty of the charge---Complainant's plea was that High Court had not appreciated ocular evidence of prosecution witnesses; that licensed pistol used in commission of offence was recovered from place of occurrence with empties; that Police Officer having effected recovery of pistol and motorcycle at pointing of accused could not be examined due to his death; that belated examination of ocular witnesses by Investigating Officer would not, by itself, result in acquittal of accused as such witnesses had accompanied complainant to police station, but their statements were not recorded by Investigating Officer for mala fide reasons; that incriminating pieces of evidence were not confronted to accused during his examination under S.342, Cr.P.C. which being a mistake of Trial Court ought to have been rectified by remand of case as a person should not suffer by mistake or error of Court---Supreme Court granted leave to appeal to consider, inter alia, such pleas of complainant and issued non-bailable warrants of arrest against accused.

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

----S. 302---Murder without legal justification or brutal murder---Appreciation of evidence by court---Principles.

In heinous crimes leading to the loss of human life without any legal justification and brutal killing at the whims of unscrupulous criminals, evidence should be weighed with great care and caution and in such circumstances, Court should ignore the technicalities; rather examine the evidence in a dynamic, and pedantic manner.

State v. Farman Hussain PLD 1995 SC 1 rel.

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

SCMR 2008 SUPREME COURT 34 #

2008 S C M R 34

[Supreme Court of Pakistan]

Present: Falak Sher and Hamid Ali Mirza, JJ

MUNAWAR HUSSAIN----Petitioner

Versus

SULTAN AHMAD and another----Respondents

Civil Petition No.1983-L of 2002, decided on 8th November, 2006.

(On appeal from the judgment/order, dated 16-4-2002 in Civil Revision No.472 of 2002 passed by the Lahore High Court).

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

---Ss. 6 & 13---Constitution of Pakistan (1973), Art.185(3).---Suit for pre-emption---Failure to make Talb-i-Ishhad---Suit was dismissed both by the Trial Court and Appellate Court on the ground that petitioner had failed to prove making of Talb-i-Ishhad---Concurrent judgments of both the Courts below were upheld by the High Court vide impugned judgment passed in revision---Validity---No evidence was on record to prove sending of notice of Talb-i-Ishhad by the petitioner as required under S.13(3) of the Punjab Pre-emption Act, 1991---In absence of said notice, High Court and two Courts below had correctly held that petitioner had failed to prove Talb-i-Ishhad as per requirement of law---No misreading or non-reading of evidence or any legal or factual infirmity was pointed out with impugned judgment of the High Court and of the two courts below---Concurrent findings of fact about non-sending of notice of Talb-i-Ishhad by petitioner as per requirement of law, which were upheld by the High Court, being unexceptionable, no interference was called for by the Supreme court---No case for grant of leave to appeal having been made out, petition was dismissed.

S.M. Masud, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioner.

Zahid Hussain Khan, Advocate Supreme Court for Respondents.

Date of hearing: 8th November, 2006.

SCMR 2008 SUPREME COURT 37 #

2008 S C M R 37

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Syed Jamshed Ali, JJ

Mst. RASOOLAN BIBI----Petitioner

Versus

KHIZAR HAYAT----Respondent

Civil Petition No. 1575-L of 2004, decided on 9th March, 2006.

(Against the order, dated 19-4-2004 passed by Lahore High Court, Lahore, in Civil Revision No.1061 of 2004).

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

----Ss. 6 & 13---Constitution of Pakistan (1973), Art.185(3)---Suit for pre-emption---Failure to make Talbs --Petitioner's suit for pre-emption had been dismissed by the court of appeal and also by the High Court on the ground that evidence led to prove Talbs, being discrepant, was not worthy of credit--Plaint did not disclose the date, time and' witnesses before whom Talb-i-Muwathibat was made---With that deficiency in the plaint, it was imperative for the petitioner to lead cogent and convincing evidence to prove performance of Talbs---Evidence led in that behalf was discrepant and not worthy of credit---Supreme Court seized of petition under Art.185(3) of the Constitution, would not reappraise the evidence--Concurrent judgment being unexceptionable, petition for leave to appeal was dismissed.

Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 ref.

Zahid Hussain Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

SCMR 2008 SUPREME COURT 39 #

2008 S C M R 39

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad and Ghulam Rabbani, JJ

BASHUMAL---- Petitioner

Versus

Dr. ZAHOOR AHMAD SHEIKH----Respondent

Civil Petition No.125-K of 2007, decided on 15th March, 2007.

(On appeal from the order, dated 20-2-2007 passed by High Court of Sindh, Karachi in R.A. No.14 of 2007).

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

----O. XXXVII, Rr.2 & 3---Constitution of Pakistan (1973), Art.185(3)---Suit for recovery of amount---Leave to defend suit---Leave to defend suit was granted to petitioner conditionally on furnishing security in the sum of Rs.5,50,000 within 30 days of the order---Petitioner, who did not comply with order furnishing security, filed revision application before the High Court for waiver of such condition which was dismissed---Contention of the petitioner was that besides the said suit, respondent had also initiated criminal proceedings against the petitioner under section 489-F, P. P. C., wherein petitioner was arrested and was ordered to be released on bail on furnishing security in the sum of Rs.2,00,000---Submission of petitioner was that he having furnished security in the sum of Rs.2,00,000, same could be treated as security in the present case---Validity---Contention of petitioner was without any merit, as that case and criminal case pending against him were two separate cases and security furnished by the petitioner in the sum of Rs.2,00,000 for his release on bail, could not be treated as security in the case---On failure of petitioner to furnish security as ordered by the District Judge within the period of thirty days, suit in accordance with the provision of O.XXXVII, C.P.C., stood decreed---Question of accepting the security furnished by the petitioner in the bail case as security in present case, would not arise---Petition for leave to appeal was dismissed.

Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondent.

SCMR 2008 SUPREME COURT 41 #

2008 S C M R 41

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

KARACHI WATER AND SEWERAGE BOARD through Chairman and another----Petitioners

Versus

MUHAMMAD AJMAL----Respondent

Civil Petition No.225-K of 2006, decided on 18th October, 2006.

(On appeal from the judgment, dated 4-3-2006 in C.P. No.D-197 of 2000 passed by the High Court of Sindh, Karachi).

Constitution of Pakistan (1973)---

----Art. 185(3)---Demand of water charges without actual supply of water---Water Board had sought leave to appeal against judgment of the High Court allowing respondent's constitutional petition calling in question the demand of the water charges without actual supply of water---High Court was of the opinion that as no water was supplied petitioner-Board could not recover the fee or charge on their account---Demanded amount in the. notice to the extent of water charges accordingly was struck down declaring that respondent was liable to pay other charges as claimed in the impugned demand notice---Contention of petitioner-Board was that in view of Gazette notification issued by the government dated 27-3-1996, it was entitled to recover water charges irrespective of the fact whether the water was supplied directly or indirectly within the limits of petitioner's Board---Counsel for Board had brought on record two leave granting orders in that respect---Since identical questions had been raised in the petition, consistent with the practice of the Supreme Court and in order to avoid any conflict of judgments, leave was granted against impugned judgment of the High Court to examine the questions raised therein.

Nazir Ali v. Karachi Water and sewerage Board 2004 CLC 578 23 and All Pakistan Textile Mills Association v. Province of Sindh 2004 YLR 192 ref.

Abrar Hassan, Advocate Supreme Court and Akhlaq Ahmad Siddiqui, Advocate-on-Record for Petitioners.

Nemo for Respondent.

2008 S C M R 50

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

Mst. ZARINA BEGUM----Petitioner

Versus

MUHAMMAD MOINUDDIN and another----Respondents

C.P.L.A. No.222-K of 2005, decided on 16th November, 2006.

(On appeal from the judgment of High Court of Sindh, dated 11-1-2005 passed in C.M.A. No.221 of 2004 (H.C.A. 37 of 2004).

Specific Relief Act (I of 1877)---

----Ss. 42, 54 & 55---Constitution of Pakistan (1973), Art. 185(3)---Suit for declaration, permanent and mandatory injunction---Issues in the case were settled and contesting parties adduced their evidence---Suit, in the ultimate analysis, was decreed by High Court and appeal filed before Division Bench also having failed, petitioner had sought leave to appeal---Various questions, such as delay in filing suit, alleged title to plot in question and lease of said plot, were involved in the case and it was urged that findings of the High Court were based on misreading and non-reading of the record---Leave to appeal was granted to consider, inter alia, the questions of law raised at the bar.

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

Nemo for Respondents.

SCMR 2008 SUPREME COURT 52 #

2008 S C M R 52

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Ghulam Rabbani, JJ

MUHAMMAD SHARIF----Petitioner

Versus

FEDERAL GOVERNMENT, MINISTRY OF RELIGIOUS AFFAIRS, GOVERNMENT OF PAKISTAN through Additional Secretary and others----Respondents

Civil Petition No.471-L of 2002, decided on 26th January, 2007.

(On appeal from the judgment, dated 14-1-2002 of the Lahore High Court, Lahore, passed in Writ Petition No.5005 of 1993).

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

----S. 17---Constitution of Pakistan (1973), Art.185(3)---Conversion of petition into appeal---Constitutional petitions filed by petitioner as well as respondent against order passed by Federal Government under S.17 of the Evacuee Trust Properties (Management and Disposal) Act, 1975, were dismissed by the impugned judgment, primarily on the ground that constitutional petition was not competent against a revisional order---Validity---Contention of petitioner was that dispute between petitioner and respondents was regarding tenancy of shop of Evacuee Trust Property Board, and revisional order passed by Federal Government under provisions of S.17 of Evacuee Trust Properties (Management and Disposal) Act, 1975, was subject to the constitutional jurisdiction of the High Court and that it being not a case of exercise of revisional jurisdiction under Civil Procedure Code, 1908 same was justifiably challenged as being without lawful authority and of no legal effect; and that High Court was possessed of the jurisdiction to determine the legal questions and foundational facts involved in the case---Counsel for Authorities could not controvert the plea taken by the petitioners---Constitutional jurisdiction of the High Court was not subject to any law, but subject to the Constitution only---Constitutional petition was competent against a revisional order passed by Federal Government under S.17 of Evacuee Trust Properties (Management and Disposal) Act, 1975---Impugned judgment of the High Court being not sustainable at law, petition was converted into appeal and same was allowed and impugned judgment passed by the High Court was set aside.

Zahid Hussain Khan, Advocate Supreme Court for Petitioner.

Qamar-uz-Zaman, Advocate Supreme Court and, Ch. Talib Hussain, Advocate-on-Record for Respondents Nos. 1 to 4.

Date of hearing: 26th January, 2007.

SCMR 2008 SUPREME COURT 54 #

2008 S C M R 54

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan and Saiyed Saeed Ashhad, JJ

AZIZ-UR-REHMAN HAMID----Appellant

Versus

CRESCENT COMMERCIAL BANK----Respondent

Civil Miscellaneous Applications Nos. 2813 of 2006 and 6176 of 2005 and Civil Appeal No.1770 of 2003, decided on 25th January, 2007.

(On appeal from the judgment, dated 15-10-2003 Peshawar High Court, Peshawar, passed in R.F.A. No.59 of 2001).

Constitution of Pakistan (1973)---

----Art. 185---Limitation Act (IX of 1908), S.5---Appeal to Supreme Court---Delay---Application for condonation of delay---Appeal being barred by 35 days, appellant filed application under section 5 of Limitation Act, 1908---Application for condonation of delay was not maintainable, however, if same was treated as maintainable, even then the ground urged for condonation of delay, that appellant was a layman, was not recognized under the law---No plausible ground for condonation of delay of 35 days having been made out, appeal was dismissed on ground of limitation.

Appellant in person.

Hidayatullah, Advocate Supreme Court for Respondents Nos.1 to 3.

Muhammadullah, Advocate Supreme Court and Zaman Bhatti, Advocate Supreme Court (on behalf of Advocate-General, N.-W.F.P.) and Munir Gul, Assistant Director, P.T.B.

SCMR 2008 SUPREME COURT 55 #

2008 S C M R 55

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

NATIONAL LOGISTIC CELL----Petitioner

Versus

RUKHSANA PARVEEN NAZEER and another----Respondents

C.P.L.A. No.629-K of 2004, decided on 3rd January, 2006.

(On appeal from the judgment of Sindh High Court, Karachi, dated 4-6-2004 passed in H.C.A. No.149 of 1993).

Fatal Accidents Act (XIII of 1855)---

----S. 1---Constitution of, Pakistan (1973), Art.185(2)(d)(e) & (3)---Supreme Court Rules, 1980, O.XII, R.2---Petition for' leave to appeal---Conversion of petition into appeal---Fatal accident---Determination of amount of compensation---High Court on reappraisal of evidence and re-evaluation of record, enhanced amount of compensation---Validity---Direct appeal as of right in terms of Art.185(2)(d)(e) of the Constitution was competent before Supreme Court, but instead petition for leave to appeal had been filed---Under O.XII, R.2 of Supreme Court Rules, 1980, memo. of appeal was required to be filed within 30 days from the date of grant of certificate by the High Court or from the date of impugned judgment, decree or final order of the High Court---Petition could not be converted into an appeal as in that event, it would be barred by 29 days---Petition was dismissed as incompetent and not maintainable at law.

Irtaza H. Zaidi, Advocate Supreme Court and Akhlaq Ahmad Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondents.

SCMR 2008 SUPREME COURT 56 #

2008 S C M R 56

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

MUHAMMAD AKRAM KHAN----Petitioner

Versus

DISTRICT AND SESSIONS JUDGE, RAHIM YAR KHAN and others----Respondents

Civil Petition No.2455-L of 2003, decided on 7th December, 2005.

(On appeal from the judgment, dated 23-7-2003, passed by the Punjab Service Tribunal, Lahore in Appeal No.2021 of 2002).

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

----S. 4---Constitution of Pakistan (1973), Art.212(2)---Failure to deposit process fee in appeal---Appeal filed by petitioner was dismissed by the Service Tribunal for failure to deposit the process fee---Contention of counsel for petitioner was that petitioner was not aware of the procedure of the Tribunal for the deposit of fee and the direction given in that regard---Validity---Appeal having been filed by petitioner through the counsel, compliance of directions, could not be avoided even if counsel then appearing before the Tribunal had not informed the petitioner---Impugned order of the Tribunal being unexceptionable, petition against said order was dismissed.

Zahid Hussain Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 7th December, 2005.

SCMR 2008 SUPREME COURT 58 #

2008 S C M R 58

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad and Ghulam Rabbani, JJ

INDUS TRADING AND CONTRACTING COMPANY, KARACHI--Petitioner

Versus

COLLECTOR OF CUSTOMS (PREVENTIVE), KARACHI and 2 others----Respondents

Civil Petition No. 239-K of 2006, decided on 6th October, 2006.

(On appeal from the judgment, dated 8-3-2006 passed by Sindh High Court Karachi in Constitutional Petition No. D-226 of 2003).

Customs Act (IV of 1969)---

----S. 19---Constitution of Pakistan (1973), Art. 185(3)---Exemption from charge of customs duty---Counsel for petitioner had stated that High Court was not justified in holding that no difference or distinction could be made between the goods subjected to zero duty' andfree duty' and referred to Notification No. S.R.O. 1050(I)/95 dated 29-10-1995 whereby Government levied further regulatory duty at the rate of 5% and 10% ad valorem on import of certain goods---Wording of said Notification was very clear that a person could not be subjected to levy of . regulatory duty, unless the goods imported by petitioner fell in the category of goods which were liable to be charged to customs duty, either at zero per cent or sixty per cent; and such goods would not include those goods which had been totally exempted from charge to duty or were to be imported duty free---Contentions advanced by the counsel for petitioner requiring deeper examination, it was deemed proper to grant leave, to examine said contentions---Leave to appeal was granted

Messrs Bisvil Spinners Ltd. v. Superintendent, Central Excise and Land Customs Circle Sheikhupura and another PLD 1988 SC 370 ref.

Aziz A. Sheikh Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Petitioner.

Rana M. Shamim, Advocate Supreme Court and A.A. Siddiqui, Advocate-on-Record for Respondent No. 1.

Nemo for Respondents Nos. 2 and 3.

SCMR 2008 SUPREME COURT 60 #

2008 S C M R 60

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

ENGINEER-IN-CHIEF, G.H.Q. and another----Petitioners

Versus

ABDUL KHALIQ SIDDIQUI----Respondent

C.P.L.A. No.271-K of 2006, decided on 5th July, 2006.

(On appeal from the judgment of Federal Service Tribunal, Karachi, dated 22-12-2005 passed in Appeal No.405(K)(C.S.) of 2002).

Constitution of Pakistan (1973)---

----Art. 212(3)---Petition for leave to appeal---Limitation---Condonation of delay---Petitioner in his application for condonation of delay had alleged that no copy of the judgment was directly sent to him and through his personal efforts he was able to obtain copy after about 5 months of its announcement, whereas petition was filed after 26 days of obtaining copy of judgment---Explanation offered 'by petitioner for inordinate delay in filing petition could not be accepted because same was duly forwarded to the other petitioner and not to the petitioner as it would be against the well-settled practice and procedure of the Service Tribunal---Even otherwise, forwarding letter had clearly shown that copy of impugned judgment had been duly endorsed to the petitioner---At any event, petitioner should' have been diligent in asking for a copy and not to wait for five months and 'again to waste 26 days after collection of copy from the Tribunal---Petition being hopelessly barred by time and there being no sufficient cause to condone said delay, discretion could not be exercised in favour of petitioner, who had been highly negligent and careless in pursuing remedy before Supreme Court---Prayer of petitioner for extension of time, was rejected and petition was dismissed.

Akhtar Ali Mehmood, Deputy Attorney-General for Petitioners.

Nemo for Respondent.

SCMR 2008 SUPREME COURT 61 #

2008 S C M R 61

[Supreme Court of Pakistan]

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

ABDUL MALIK and another----Appellants

Versus

THE STATE and others----Respondents

Criminal Appeals Nos.324 and 325 of 1995, decided on 26th September, 2006.

(On appeal from the judgments, dated 30-10-1994 passed by Lahore High Court, Lahore Bench, Lahore in Criminal Revision No.100 of 1991 and Criminal Appeal No.912 of 1990).

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

---Ss. 302(b), 440 & 147---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal of four accused and conversion of death sentence into life imprisonment of another accused by High Court---Reasons directing acquittal of the four accused were neither perverse nor arbitrary to warrant any interference by Supreme Court---Basis for reduction of death sentence of the other' accused to imprisonment for life was that he had acted under the influence of his elders, which fact was even alleged in the F.I.R.---Age given by the said accused at the time of his examination under S.342, Cr.P.C. was never questioned, meaning thereby that he was about fifteen years old on the date of occurrence---Appeal was dismissed in circumstances.

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

----Ss. 302(b), 440 & 147---Accused had already been released after serving out his life imprisonment---Appeal of accused did not raise any live issue and needed no decision on merits---Appeal was disposed of accordingly.

Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others PLD 1976 SC 452 and Abdul Malik and others v. the State and others PLD 2006 SC 365 ref.

Maqbul Elahi Malik, Senior Advocate Supreme Court for Appellant (in Criminal Appeal No.324 of 1995).

M.A. Zafar, Advocate Supreme Court for Appellant (in Criminal Appeal No.325 of 1995).

Dil M. Tarar, Advocate Supreme Court for the State (in both cases).

M.A. Zafar, Advocate Supreme Court for Respondent No.2 (in Criminal Appeal No.324 of 1995).

Date of hearing: 26th September, 2006.

SCMR 2008 SUPREME COURT 65 #

2008 S C M R 65

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

ABDUL MAJEED and others----Petitioners

Versus

Trustees of Haji Sir ABDULLAH HAROON WAKF NO.1 and Others--Respondents

C.P.L.As. Nos.606-K, 617-K, 618-K, 624-K to 631-K, 647-K, 676-K to 678-K of 2005, decided on 18th October, 2005.

(On appeal from the judgment of High Court of Sindh, Karachi, dated 24-6-2005 passed in C.Ps. Nos.S-383, 431, 640, 436 to 440, 442 to 444, 213, 895 to 897 of 2003).

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

----Ss. 15(2)(vi), (3)(4) & 21---Sindh. Cultural Heritage (Preservation) Act (XII of 1994), Ss.6 & 10(3)---Constitution of Pakistan (1973), Art.185(3)---Ejectment of tenant on ground of reconstruction---Ejectment was sought on sole ground of demolition and reconstruction of demised premises for which appropriate permission and approval was obtained from the relevant Authorities---Stance of petitioners was that building sought to be demolished having been declared as "protected heritage" Rent Controller had no jurisdiction to proceed against them---Said' objection was turned down and ejectment was ordered---Respondent-Trust had already moved appropriate application against inclusion of building in the Schedule of "protected heritage before concerned Authorities which was sub judice---Rent Controller as well as appellate Authority had directed that execution of ejectment order would be contingent upon the order that might be passed on said application of respondent-Trust--- Apprehension of petitioners was that on reconstruction of the building in question, they might be put in disadvantageous position and not accommodated in the newly-constructed premises with an area equivalent to one already in their occupation---Advocate-on-Record, who appeared on behalf of respondent-Trust, made categorical statement that subject to clearance by the Government for proposed demolition, after construction of the building, Right of petitioners would be fully protected---No other point having been raised for adjudication by the Supreme Court, petition stood disposed of in terms of undertaking furnished on behalf of the respondent-Trust.

A.S.K. Ghouri, Advocate-on-Record for Petitioners (in C.P. No.606-K of 2005).

Iftikhar Javed Qazi, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioners (in C.Ps. Nos.617-K, 618-K and 647-K of 2005).

Shamsuddin Khalid, Advocate Supreme Court and Ahmadullah Farooqi, Advocate-on-Record for Petitioners (in C.Ps. Nos.624-K to 631-K, 647-K, 676-K to 678-K of 2005).

Miss Wajahat Niaz, Advocate-on-Record for Respondent-Trust.

Nemo for other Respondents.

SCMR 2008 SUPREME COURT 67 #

2008 S C M R 67

[Supreme Court of Pakistan]

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

MUHAMMAD ISLAM----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.303-L of 2006, decided on 13th July, 2006.

(On appeal from the judgment, dated 2-3-2006 of the Lahore High Court, Lahore, passed in Criminal Appeal No.1367 of 2004).

Penal Code (XLV of 1860)---

----S. 302(b)-Constitution of Pakistan (1973), Art.185(3)---Petitioner was the solitary accused burdened with knife injuries on the person .of the deceased---Concurrent findings of both the Courts below regarding the guilt of accused on the basis of ocular testimony furnished by the complainant and other eye-witness, did not suffer from any legal or factual infirmity---Benefit of mitigating circumstances, available on record, had already been extended to accused, as he stood punished only with the sentence of imprisonment for life---Petition was even otherwise barred by time---Leave to appeal was refused to accused in circumstances.

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

Nemo for Respondent.

SCMR 2008 SUPREME COURT 68 #

2008 S C M R 68

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Actg. C.J. and Muhammad Nawaz Abbasi, J

Mst. ZARINA----Appellant

Versus

THE STATE----Respondent

Civil Appeal No.40 of 2002, decided on 2nd August, 2006.

(On appeal from the judgment of Lahore High Court, Lahore, dated 4-6-1999 passed in Criminal Appeal No.164 and Criminal Revision No.23 of 1998).

Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan (1973), Art.185(3)---Accused had been released from Jail upon payment of Diyat amount as reported by the Superintendent Jail-Parties counsel had agreed that no useful purpose would be served by deciding the appeal on merits, as appellant herself was not available and was least interested in the matter---Appeal was disposed of accordingly.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

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

Mrs. Afshan Ghazanfar, Assistant Advocate-General, Punjab for the State.

SCMR 2008 SUPREME COURT 69 #

2008 S C M R 69

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Syed Jamshed Ali, JJ

NOOR MUHAMMAD and another----Petitioners

Versus

THE STATE----Respondent

Criminal Petition No.528-L of 2006, decided on 8th January, 2007.

(Against the judgment, dated 29-5-2006 passed by Lahore High Court, Lahore, in Criminal Appeal No.308 of 2001).

Penal Code (XLV of 1860)---

----S. 302(b)/34---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to accused, inter alia, on the grounds that having disbelieved the prosecution evidence qua three co-accused who stood acquitted, could the conviction of the accused be maintained on the same set of evidence, and that was the case of accused not free from doubt as they were neither connected with the motive part of the prosecution story nor any empty recovered from the spot was found to be wedded with the fire-arms recovered from them.

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

Pervaiz Alamgir, Deputy Prosecutor-General Punjab for the State.

SCMR 2008 SUPREME COURT 71 #

2008 S C M R 71

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

ABDUL MAJEED----Petitioner

Versus

THE STATE----Respondent

Jail Petitions Nos.449 and 450 of 2005, decided on 1st August, 2006.

(On appeal from the judgments of High Court of Balochistan, Quetta, dated 5-10-2005 passed in Murder Reference No.12 of 2003 and Criminal Appeals Nos.62 and 63 of 2003).

Penal Code (XLV of 1860)---

---Ss. 302(b) & 395---Anti-Terrorism Act (XXVII of 1997), Ss.6(i), 7 & 6(3)---West Pakistan Arms Ordinance (XX of 1965), S.13(e)---Constitution of Pakistan (1973), Art.185(3)---Name of accused did not appear in the F.I.R., lodged after an unexplained delay of six hours---Accused was arrested after two months whereafter identification parade had been conducted through witnesses under the supervision of Naib Tehsildar who had conducted investigation as well---Conviction and sentences of accused were urged to have been based on no evidence and rather on inadmissible evidence, which could not be treated as inclusive warranting a sentence on capital charge---Leave to appeal was granted to accused for reappraisal of the evidence in order to ascertain whether the principles for safe administration of criminal justice, as laid down by Supreme Court, were fully adhered to.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.

Mehmood Raza, Additional Advocate-General, Balochistan for the State.

SCMR 2008 SUPREME COURT 72 #

2008 S C M R 72

[Supreme Court of Pakistan]

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

IRSHAD AHMED----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.108 of 2006, decided on 6th July, 2006.

(On appeal from the judgment, dated 17-2-2006 passed by the Lahore High Court, Bahawalpur Bench, in Criminal Appeal No.206 and Murder Reference No.74 of 2002).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to accused to reappraise the evidence for safe administration of justice, inter alia, to consider that whether the occurrence had taken place in the manner as described by the prosecution and particularly when the three persons i.e. the complainant (father of the deceased) and the two other witnesses (paternal-uncles of the deceased) were standing at a distance of some Karams from the deceased and they remained as silent spectators, while deceased was being caused several injuries by the accused, first by using the axe and after it being struck up in the head of the deceased then taking out the Chhuri, and that whether it was the job of one accused or more than one and in the latter case whether the version of eye-witnesses could be believed.

M. Zaman Bhatti, Advocate Supreme Court for Petitioner.

Dil Muhammad Tarar, Advocate Supreme Court for the State.

SCMR 2008 SUPREME COURT 74 #

2008 S C M R 74

[Supreme Court of Pakistan]

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

C.P.L.A. No. 756-K of 2004

CANTONMENT BOARD FAISAL CANTT., KARACHI and others----Petitioner

Versus

MUHAMMAD ADIL KHAN and others----Respondents

(On appeal from order, Sindh High Court, Karachi, dated 24-8-2004 passed in Constitutional Petition N6.2467 of 2004).

C.P.L.A. No.757-K and 758-K of 2004

CANTONENT BOARD FAISAL CANTT., KARACHI---Petitioner

Versus

ABDUL GHAFFAR and others---Respondents

(On appeal from order of Sindh High Court, Karachi, dated 24-8-2004 passed in Constitutional Petitions Nos.2502 and 2503 of 2004).

C.P.L.A. No. 759-K and 760-K of 2004

CANTONMENT BOARD FAISAL CANTT., KARACHI---Petitioner

Versus

QAZI MUHAMMAD SHAMIM and others---Respondents

(On appeal from order of Sindh High Court, Karachi, dated 24-8-2004 passed in Constitutional Petitions Nos.2627'and 2628 of 2004)

C.P.L.As. Nos.756-K, 757-K, 758-K, 759 and 760-K of 2004, decided on 24th October, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.409, 420, 468, 471/, 109 & 34---Prevention of Corruption Act (II of 1947), S.5(2)---Constitution of Pakistan (1973), Art.185(3)---Bail, grant of---Respondents having been granted bail by High Court, petitioner had sought leave to appeal against said order---Investigation in the case had been completed long before---No useful purpose would be served by remanding respondents to the custody---Respondents had been availing concession of bail for the last more than one year and no allegation was that respondents had abused such concession---Supreme Court declined interference with the exercise of discretion by the High Court, unless it was shown that same was exercised arbitrarily, in a perverse manner or in contravention of the settled principles of law---No exceptional case having been made out and no compelling circumstances were shown for interference with the said exercise of discretion by the High Court, no ground was made out for grant of leave, petitions were dismissed.?

Rao Muhammad Shakir Naqshbandi, Advocate Supreme Court and Akhlaq Ahmad Siddiqui, Advocate-on-Record for Petitioners.

Nemo for Respondents (in C.Ps. Nos.756-K to 758-K of 2004).

Shahadat Awan, Advocate Supreme Court for Respondent No.1 on caveat (in C.Ps. Nos.759-K and 760-K of 2004).

Nemo for Respondents Nos.2 to 4 (in C.Ps. Nos.759-K and 760-K of 2004).

Date of hearing: 24th October, 2005.

SCMR 2008 SUPREME COURT 76 #

2008 S C M R 76

[Supreme Court of Pakistan]

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

Dr. GHULAM MUSTAFA----Petitioner

Versus

THE STATE and others----Respondents

Criminal Petition No.659-L of 2006, decided on 3rd October, 2006.

(On appeal from the judgment/order, dated 13-7-2006 passed by Lahore High Court, Lahore, in Criminal Miscellaneous No.275/M of 2006).

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), Ss.406/468/471---Constitution of Pakistan (1973), Arts.199 & 185(3)---Quashing of F.I.R. by High Court---Validity---High Court had no jurisdiction whatsoever to take the role of the investigating agency and to quash the F.I.R. while exercising constitutional power under Art.199 of the Constitution or under S.561-A, Cr.P.C. unless and until very exceptional circumstances existed---High Court had decided the case in violation of the mandatory provisions of the Code of Criminal Procedure---Offences in the impugned F.I.R. being not compoundable, High Court was not justified to quash the same on the basis of alleged settlement between the parties outside the Court---High Court by accepting the petition had erred in law to short circuit the normal procedure of law while exercising equitable jurisdiction, which was not in consonance with the law laid down by Supreme Court in various pronouncements---Impugned order quashing the F.I.R. was set aside in circumstances.

Habib Ahmad's case PLD 1992 SC 353; Haji Sardar Khalid Saleem's case 2006 SCMR 1192 and Col. Shah Sadiq's case 2006 SCMR 276 ref.

Muzamil Akhtar Shabir, Advocate Supreme Court for Petitioner.

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

Respondents Nos.3 and 4 in person.

Syed Mumtaz Ali Hamdani, Advocate Supreme Court with A.H. Masood, Advocate-on-Record for Respondent No.4.

SCMR 2008 SUPREME COURT 79 #

2008 S C M R 79

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

SHAMSHAD BEGUM----Petitioner

Versus

Mst. HUMA BEGUM and others----Respondents

C.P.L.A. No.475-K of 2006, decided on 15th November, 2006.

(On appeal from the judgment of High Court of Sindh, Karachi, dated 15-9-2006 passed in C.P. No.S-692 of 2004).

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

----Ss. 15(2)(ii) & 21---Constitution of Pakistan (1973), Art.185(3)---Ejectment of tenant on ground of default' in payment of rent of premises---Notice was served on tenant---Tenant/petitioner appeared before Rent Controller and sought adjournment to file a written statement---Tenant was accommodated thrice and thus more than reasonable time was afforded to her, but no written statement having been filed by her, plea of respondent/landlord and ejectment application was allowed by the Rent Controller and order of Rent Controller was upheld in appeal---Constitutional petition filed by petitioner against concurrent judgments of authorities below, had been dismissed by the High Court---Validity---Counsel for petitioner was unable to point out any misreading of record, misconstruction of evidence or non-reading of any material piece of evidence as well as error of jurisdiction---Petitioner/tenant having not pleaded her case before the forums below, she was rightly proceeded ex parte, to which no exception at law could be taken---After seeking adjournment from the Rent Controller, it was incumbent upon the petitioner to contest the case, explain her view point and to substantiate that no default was `made in payment of rent on her part---High Court neither had acted illegally nor without jurisdiction in declining to exercise its constitutional jurisdiction in interfering with concurrent findings of fact by Courts below, but had acted in exercise of its jurisdiction and according to law-Petition was dismissed, in circumstances.

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

K.A. Wahab, Advocate-on-Record for Respondent No.1.

Nemo for Respondents Nos.2 and 3. (pro forma respondents).

Date of hearing: 15th November, 2006.

SCMR 2008 SUPREME COURT 81 #

2008 S C M R 81

[Supreme Court of Pakistan]

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

MUHAMMAD USMAN and another----Petitioners

Versus

THE STATE----Respondent

Criminal Petition No.643-L of 2006, decided on 21st August, 2006.

(On appeal from the judgment, dated 20-6-2006 of the Lahore High Court, Lahore, passed in Criminal Appeal No.468 of 2000 and Murder Reference No.723 of 2000).

Penal code (XLV of 1860)---

----S. 302(b)/34---Constitution of Pakistan (1973), Art.185(3)---Contentions were, that ocular testimony stood belied by medical evidence; that crime-empties recovered from the spot were found to have been fired from the rifle of co-accused; that eye-witnesses were close relatives of the deceased and their evidence required independent corroboration for safe administration of justice, which was not available against the accused and that his case required reconsideration to establish that his conviction was based on sound principles of administration of criminal justice---Case of accused required to be minutely examined in the light of the aforesaid contentions and leave to appeal was granted to accused to reappraise the evidence on record.

M.A. Zafar, Advocate Supreme Court and Ch. M. Anwar Khan, Advocate-on-Record (absent) for Petitioner.

Nemo for Respondent.

SCMR 2008 SUPREME COURT 83 #

2008 S C M R 83

[Supreme Court of Pakistan]

Present: Raja Fayyaz Ahmad and Ghulam Rabbani, JJ

MUHAMMAD ILYAS-Petitioner

Versus

THE STATE----Respondent

Jail Petition No.39 of 2007, decided on 13th September, 2007.

(On appeal from the judgment, dated 7-12-2006 of the Peshawar High Court, Abbottabad Bench, Abbottabad passed in Jail Criminal Appeal No.125 of 2005 and Murder Reference No.6 of 2006).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Petitioner/accused had contended that an alternative sentence of life imprisonment would meet the ends of justice in the circumstances of the case and that extreme penalty of death would not be an appropriate sentence---No material as to the mental faculties of the petitioner at the relevant time having been affected adversely was available on the record to consider the question of imposition of the alternative sentence of life imprisonment in the given circumstances of the case as also pointed out in the impugned judgment---No justification existed to consider the question of imposition of lesser sentence in the circumstances of the case---Both courts below and High Court had concurrently found the petitioner guilty of the charge on which appropriate legal sentence had been passed and maintained by the High Court, which was unexceptionable---Leave to appeal was refused.

Syed Ali Hassan Gillani, Advocate Supreme Court for Petitioner.

Muhammad Zaman Bhatti, Advocate Supreme Court for the State.

SCMR 2008 SUPREME COURT 85 #

2008 S C M R 85

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

MUHAMMAD ISHAQUE through L.Rs.----Petitioners

Versus

Syed MUHAMMAD ZUBAIR and another----Respondents

C.P.L.A. No.469-K of 2006, decided on 16th October, 2006.

(On appeal from the order, High Court of Sindh, Karachi, dated 24-8-2006 passed in Civil Revision No.165 of 2003).

Specific Relief Act (I of 1877)---

----Ss. 39, 42 & 54---Constitution of Pakistan (1973), Art.185(3)---Suit for declaration, cancellation of documents and permanent injunction---Concurrent findings of fact of two courts below and High Court were to the effect that petitioners failed to establish the purchase of suit property from respondent as alleged---Record had established that respondent had obtained a registered lease deed from the other person---Petitioners having failed to establish their right, interest and title to the property in dispute and even the payment of consideration to the alleged vendor, High Court in exercise of its revisional jurisdiction, declined to interfere with the findings of fact, based on correct and careful analysis and appraisal of the evidence---Fact that petitioners raised their claim of ownership after the passage of more than 25 years, itself was indicative of the fact that they had no legal right and title to the property in dispute---No ground for interference with the findings of fact and to grant of leave having been made out, petition was dismissed.

Chaudhry Iftikhar Ahmad, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 16th October, 2006.

2008 S C M R 93

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

MUHAMMAD UMAR----Petitioner

Versus

MUHAMMAD TUFAIL and others----Respondents

C.P.L.A. No.430-K of 2005, decided on 13th October, 2006.

(On appeal from the order of Sindh High Court, Hyderabad Circuit, dated 25-4-2005 passed in Second Appeal No.10 of 2004).

Civil Procedure Code (V of 1908)---

----S. 100---Limitation Act (IX of 1908), Art.156---Constitution of Pakistan (1973), Art.185(3)---Second appeal before High Court---Limitation---First Appellate Court had drawn decree one' month and eleven days from its judgment, whereas as per Article 156 of Limitation Act, 1908, period provided for preferring appeal before the High Court was 90 days from the date of order or a decree---Second appeal which was filed before the High Court after two months and twelve days from the judgment and eleven days from drawing of decree, was clearly within prescribed period of 90 days from the date of judgment as well as the decree appealed from---Error of law being apparent on the face of record, petition was converted into appeal and was allowed---Impugned order of the High Court was set aside and case was remanded to High Court for decision afresh on merits, strictly in accordance with law.

Chaudhry Muhammad Iqbal, Advocate Supreme Court and Akhlaq Ahmad Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondents Nos.1, 2, 4 to 6.

Respondent No.3 in person.

Date of hearing: 13th October, 2006.

SCMR 2008 SUPREME COURT 95 #

2008 S C M R 95

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Tassaduq Hussain Jillani and Karamat Nazir Bhandari, JJ

LIAQUAT ALI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.341 of 2004, decided on 9th June, 2006.

(On appeal from the order, dated 6-9-2004 of the Lahore High Court, Multan Bench, Multan, passed in Criminal Appeal No.3 of 1992).

Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan (1973), Art.185---Appeal to Supreme Court---Appreciation of evidence---Prosecution witness who was first cousin and brother-in-law of deceased claimed to have seen the occurrence from a distance of 30 ft.---Two other witnesses were also attracted to the spot, but none had rescued deceased and accused had a free hand to inflict as many as nine injuries on person of deceased---Accused was allegedly a single assailant and if said witnesses were three at the spot, they could have easily overpowered the accused---Such had made their presence at the spot doubtful---Exact place of occurrence as given by the witnesses, was inconsistent with site plan---Both witnesses were closely related to deceased---Motive had been disbelieved and no independent corroboration of the ocular testimony was available---Prosecution having failed to prove its case beyond reasonable doubt, Trial Court had rightly acquitted accused---Impugned judgment of the High Court was set aside and accused was acquitted of the charge.

N.A. Butt, Advocate Supreme Court for Appellant.

Khadim Hussain Qaiser, Additional Advocate-General, Punjab for the State.

Date of hearing: 9th June, 2006.

SCMR 2008 SUPREME COURT 100 #

2007 S C M R 100

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J., and Mian Shakirullah Jan, J

AGRO TRACTORS (PRIVATE) LIMITED----Petitioner

Versus

FECTO BELARUS TRACTORS LIMITED and others----Respondents

C.P.L.A. No.374 of 2006, heard on 20th December, 2006.

(On appeal from the judgment dated 4-5-2006 of Sindh, High Court at Karachi passed in C.P. No.D-304 of 2006).

Customs Act (IV of 1969)---

----S. 19---Constitution of Pakistan (1973), Art.185(3)---Question raised was as to whether on the basis of the doctrine of "promissory estoppel" importer was entitled to exemption from customs duty and that in the meanwhile the Bank guarantee equal to the duty to the extent of goods imported, which would be worked out by Central Board of Revenue, be kept intact out of Bank guarantee, which was pending before the Secretary Ministry of Industries in view of the new scheme introduced, which had been abandoned, could be released along with additional guarantee which was furnished in pursuance of said order---Leave to appeal was granted by Supreme Court to examine the question.

Chaudhry Mushtaq Ahmad Khan, Senior Advocate Supreme Court, Mahmood A. Sheikh, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Ms. Naheeda Mehboob Ellahi, D.A-G. and Mumtaz Ahmad, (Legal) C.B.R. for Respondents.

SCMR 2008 SUPREME COURT 102 #

2008 S C M R 102

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Nasir-ul-Mulk, JJ

QASIM JAN----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.288 of 2006, decided on 12th September, 2007.

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art. 185 (3)---Reappraisal of evidence---Defence plea---Accused committed murder of his real brother---Trial Court, on F.I.R. registered by their father, convicted and sentenced the accused to death, which was confirmed by High Court---Plea raised by accused" was that defence evidence was not considered properly during the trial---Validity---Defence witnesses never appeared before Investigating Officer to give their versions of the incident---In view of personal interest and the fact that defence witnesses disclosed their story for the first time at trial to contradict prosecution version, their testimony was not of much help to defence---Accused failed to point out any mitigating circumstance for reduction of sentence---Case of accused was that of killing his own brother and charged for it by the father---Evidence of prosecution had been properly appraised by Trial Court as well as by High Court---Supreme Court declined to interfere with the judgment passed by High Court---Leave to appeal was refused.

M. Zaman Bhatti, Advocate Supreme Court for Petitioner.

Sh. Mehmood Ahmad, Advocate Supreme Court for Respondent.

Date of hearing: 12th September, 2007.

SCMR 2008 SUPREME COURT 105 #

2008 S C M R 105

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

IQBAL HUSSAIN----Petitioner

Versus

PROVINCE OF SINDH through Secretary, Housing and Town Planning, Karachi and others----Respondents

Civil Petition No.401-K of 2006, decided on 10th October, 2006.

(On appeal from the judgment, dated 2-6-2006 in Constitution Petition No.1255 of 2006 passed by the High Court of Sindh, Karachi).

Sindh Local Government Ordinance (XII of 1979)---

----Ss. 53 & 54---Constitution of Pakistan (1973), Arts.185(3) & 1991--Duties and functions of public functionaries---Allotment of plot without formulations of scheme---High Court dismissed constitutional petition by the petitioners/allottees, holding that Chief Minister was not legally authorized and competent to allot any plot in urban area without formulation of any scheme under Sindh Local Government Ordinance, 1979 and that Chief Minister could not act at his whims as the procedure prescribed regarding the transfer of land in city of Karachi was not followed---Validity---Public functionaries, including the Chief Minister could deal with the public property only in a prescribed procedure within the parameters of law under a duly sanctioned scheme and not at their whites---Even if such order was passed by the Chief Minister in favour of petitioners, concerned authorities, were not bound to follow such illegal and void order of a superior authority---It would be in the exigencies of good administration and their duty if authorities pointed out to the high-ups that they were acting in excess of their lawful authority and in violation of law and the constitutional mandate---Authorities could be apprised of the legal consequences flowing from such acts---Compliance of any illegal and arbitrary order was neither binding on the subordinate forums nor valid in the eyes of law---High Court neither, had committed any illegality nor had acted in violation of settled principles of law, while dismissing petitioner's constitutional petition---Impugned order, in circumstances, did not call for interference by Supreme Court.

Abdul Haq v. Government of Sindh PLD 2000 Kar. 224; Abdul Haq Indhar v. Province of Sindh 2000 SCMR 907 and Taj Muhammad v. Town Committee 1994 CLC 2214 ref.

Akhlaq Ahmad Siddiqui, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2008 S C M R 114

[Supreme Court of Pakistan]

Present: Raja Fayyaz Ahmad and Ghulam Rabbani, JJ

Malik NADEEM ZAMAN----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.13 of 2007, decided on 13th September, 2007.

(On appeal from the judgment, dated 11-12-2006 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in Criminal Appeal No.211 of 2001 and Murder Reference No.127 of 2002).

Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Multiple murders-Accused was concurrently convicted and sentenced to death by Trial Court and High Court for committing murder of his father, two real sisters and a nephew---Validity---All aspects and circumstances of the case had been thoroughly thrashed out which excluded all probabilities and possibilities of innocence of accused who simply took the plea for having been falsely involved in the case and claimed innocence---No defence evidence was led by accused and judgment passed by High Court was unexceptionable and did not suffer from any infirmity legal or factual so as to call for any interference by Supreme Court---Leave to appeal was refused.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.

Nemo for the State.

SCMR 2008 SUPREME COURT 116 #

2008 S C M R 116

[Supreme Court of Pakistan]

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

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

Versus

KHALIL AHMAD and others----Respondents

Civil Appeal No.577 of 2003, decided on 23rd January, 2007.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 9-3-2000 passed in Civil Revision No.37-D of 1998).

(a) Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976)--

----Ss. 29 & 31---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider; whether suit of employee was maintainable in terms of bar envisaged by S.29 read with S.31 of Punjab Boards of Intermediate and Secondary Education Act, 1976.

(b) Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976)--

----Ss. 29 & 31---Specific Relief Act (I of 1877), S.42---Disciplinary proceedings, assailing of---Bar of jurisdiction---Scope---Plaintiff being employee of Board assailed the disciplinary proceedings and punishment awarded to him before Civil Court---Trial Court decreed the suit in favour of employee and entire disciplinary proceedings were set aside---Appeal and revision filed by Board, before Lower Appellate Court and High Court respectively were dismissed being time barred---Plea raised by Board was that jurisdiction of Civil Courts generally to question any order passed under Punjab Boards of Intermediate and Secondary Education Act, 1976, was ousted, therefore, suit filed by employee could not have been entertained---Validity---Provision of S.31 of Punjab Boards of Intermediate and Secondary Education Act, 1976, did not oust the jurisdiction of Civil Court generally but only barred suits against the officials of Board acting in good faith---Provision of S.29 of Punjab Boards of Intermediate and Secondary Education Act, 1976, also did not completely oust the jurisdiction of Civil Court preventing the Courts to examine as to whether action taken was within the framework of law---Factual foundation, therefore, was required to be laid in order to examine whether ouster clause was attracted---Such foundation was only possible if objection to the jurisdiction of Civil Court was raised in written statement and issue framed, thereby providing opportunity to the employee to furnish relevant evidence---Board having not done so, such objection could not be raised for the first time before Supreme Court---Supreme Court declined to interfere with the judgment passed by High Court---Appeal was dismissed.

Masud Ashraf Sh., Advocate Supreme Court with Mehmood A. Qureshi, Advocate-on-Record for Appellants.

M. Ozair Chughtai, Advocate Supreme Court for Respondents.

Date of hearing: 23rd January, 2007.

SCMR 2008 SUPREME COURT 119 #

2008 S C M R 119

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Ghulam Rabbani, JJ

AHMED----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.92 of 2006, decided on 19th September, 2007.

(Against the judgment of the Lahore High Court Multan Bench, dated 23-1-2006 passed in Criminal Appeal No. 609 of 2001 and Murder Reference No. 565 of 2001).

Penal Code (XLV of 1860)---

----S. 302--Constitution of Pakistan (1973), Art.185(3)---Petitioner had contended that alleged occurrence was un-witnessed; that conviction had been recorded on the basis of extra-judicial confession allegedly made by petitioner and his co-accused; that extra-judicial confession allegedly made before a close relative of deceased, was repellant to common sense and that dead-body of deceased was recovered from a pit by the Police in the presence of residents of the area and no reference was made to the petitioner being there at the time of recovery---Leave to appeal was granted to consider whether the principles of safe administration of justice had been adhered to while passing the impugned judgment.

M. Zaman Bhatti, Advocate Supreme Court for Petitioner.

M. Ashraf Mahandra, D.P.G. for the State.

SCMR 2008 SUPREME COURT 120 #

2008 S C M R 120

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ

MUHAMMAD ANWAR and another----Petitioners

Versus

THE STATE----Respondent

Jail Petitions Nos.81 and 86 of 2006, decided on 23rd August, 2006.

(On appeal from the judgment, dated 13-2-2006 of the Lahore High Court, Bahawalpur Bench, Bahawalpur passed in Criminal Appeal No.259 and Murder Reference No.33 of 2001).

Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan (1973), Art. 185(3)-Reappraisal of evidence---Taking into consideration the conflict of medical evidence with ocular evidence according to which the fatal injury was not attributed to the petitioner, leave to appeal was granted to consider question regarding the legality of conviction and sentence awarded to the petitioner.

M. Zaman Bhatti, Advocate Supreme Court for Petitioners.

Nemo for Respondent.

SCMR 2008 SUPREME COURT 121 #

2008 S C M R 121

[Supreme Court of Pakistan]

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

ASIMA SAEED----Petitioner

Versus

Syed SAEED HASSAN SHAH HUMAYOUN and others----Respondents

Civil Petition No.969-L of 2006, decided on 31st August, 2006.

(On appeal from judgment/order, dated 27-3-2006 passed by Lahore High Court, Bahawalpur Bench, Bahawalpur, in Writ Petition No.2315 of 2005).

Constitution of Pakistan (1973)---

----Art. 185(3)---Guardians and Wards Act (VIII of 1890), S.25---Minor, custody of---Hardships and problems faced by mother---High Court granted custody of minor to mother giving right to paternal-grandfather to meet the minor---Petitioner, for that purpose had to face hardships and problems to take minor from Lahore to Bahawalpur, which would, not only entail heavy financial burden, but also cause inconvenience to her---Operation of order of the High Court was suspended by the Supreme Court observing that mother of minor would not go to Bahawalpur along with the minor for meeting with grandfather of the minor, but grandfather would come to Lahore or any other place where mother would be posted who was lecturer.

Hifza Aziz, Advocate Supreme Court and M. A. Qureshi, Advocate-on-Record for Petitioner.

Malik Muhammad Aslam, Advocate Supreme Court and G.N. Gohar, Advocate-on-Record for Respondent No. 1.

SCMR 2008 SUPREME COURT 123 #

2008 S C M R 123

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Ghulam Rabbani, JJ

PATHAN----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.378 of 2006, decided on 21st September, 2007.

(On appeal from the judgment, dated 9-8-2006 passed by High Court of Sindh at Sukkur, in Criminal Appeal No.92 of 2001).

Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider, whether the conduct of the witnesses in not intervening to rescue deceased, had made their presence at the spot doubtful as also the question whether principles of fair administration of justice were adhered to by the courts below.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

SCMR 2008 SUPREME COURT 124 #

2008 S C M R 124

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Syed Jamshed Ali, JJ

Mst. YASMIN----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, BHAWALPUR and others----Respondents

Civil Petition No.962-L of 2006, decided on 24th January, 2007.

(Against the judgment/order, dated 25-4-2006 of the Lahore High Court, Bahawalpur Bench, passed in Writ Petition No.568/BWP of 2003).

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

----S. 5--Constitution of Pakistan (1973), Art.185(3)---Recovery of dower---Court-fee, affixing of---Principles---Plaintiff in her suit for recovery of dower, claimed a plot---Family Court decreed the suit in favour of wife---Appellate Court, without determining value of suit plot, directed the plaintiff to fix maximum court-fee i.e. Rs.15,000---Validity---Value of plot was neither determined by Family Court nor by lower Appellate Court, while directing fixing of court-fee of Rs.15,000---Lower Appellate Court merely proceeded to fix court-fee on plaint in terms of judgment and decree in the suit of dowry articles---Lower Appellate Court, before directing plaintiff to make up deficiency in court-fee should have determined value of plot, in absence of which exercise remained inconclusive---Plaintiff could not be punished and non suited for non-compliance of order of lower Appellate Court regarding fixing of court-fee---Supreme Court converted petition for leave to appeal into appeal and set aside order passed by High Court affirming judgment of lower Appellate Court---Supreme Court remanded the case to lower Appellate Court for deciding the appeal afresh---Appeal allowed.

M. Mahmood Aslam Pirzada, Advocate Supreme Court for Petitioner.

M. Ozair Chughtai, Advocate-on-Record for Respondent No.3.

SCMR 2008 SUPREME COURT 126 #

2008 SCMR 126

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Syed Jamshed Ali, JJ

BASHIR AHMAD----Petitioner

Versus

Haji MUHAMMAD ASHRAF and others----Respondents

Criminal Petition No.97-L of 2006, decided on 1st March, 2006.

(On appeal from the order, dated 17-1-2006 passed by Lahore High Court, Lahore, in Criminal Miscellaneous No.218/T of 2005).

(a) Criminal trial---

----Counter cases---Practice and procedure---Rule of propriety---Trial of counter-cases together is based on well-established practice founded on a rule of propriety---Said rule of propriety has generally been followed on the rationale that if the counter-cases emanating from the same transaction are tried by two different Courts, they are likely to end up in conflicting judgments and even the appreciation of evidence may be subjected to different criteria---Said rule of propriety is not an inflexible rule and the Court may part with the same for the reasons to be recorded in certain situations.

Muhammad Sadiq v. The State and another PLD 1971 SC 713 ref.

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

---Ss. 324/148/149/395/511/109/452---Constitution of Pakistan (1973), Art.185(3)---Transfer of cases---Accused petitioner had filed a private complaint before the Sessions Court in the year 2000 immediately after the police challan case under S.302, P.P.C., in which the accused had been summoned by the Trial Court---Trial Court had proceeded with the police challan case first although private complaint under S.302, P.P.C. was earlier in time---Court remained busy with the said cases and private complaint of the accused petitioner based on counter-version remained pending---Accused was not alleged to have ever tried to prolong the case or get the matter delayed before the Ilaqa Magistrate on account of any factor directly or indirectly attributed to him---Such distinctive features had not been brought to the notice of High Court---Private complaint of the accused and the State case pending before the Ilaqa Magistrate were withdrawn from the said Court and transferred to the Sessions Court in circumstances---Petition for leave to appeal was converted into appeal by Supreme Court and allowed accordingly.

Abdul Rehman Bajwa v. Sultan and 9 other PLD 1981 SC 522 and Muhammad Sadiq v. The State and another PLD 1971 SC 713 ref.

Aftab Ahmad Bajwa, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioner.

Khadim Hussain Qaiser, Additional Advocate-General, M. Akram Qureshi, Advocate Supreme Court and Ch. M. Anwar Khan, Advocate-on-Record for Respondents.

SCMR 2008 SUPREME COURT 130 #

2008 S C M R 130

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

MUHAMMAD ISMAIL----Petitioner

Versus

VIITH ADDITIONAL DISTRICT JUDGE, SOUTH KARACHI and others----Respondents

C.P.L.A. No.840-K of 2005, decided on 2nd January, 2006.

(On appeal from the judgment of Sindh High Court, dated 21-10-2005 passed in Constitutional Petition No.S-428 of 2003).

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

----S. 15(2)(ii)---Civil Procedure Code (V of 1908), O.IX, R.13---Constitution of Pakistan (1973), Art.185(3)---Ejectment of tenant on ground of default in payment of rent---Petitioner/tenant challenged relationship of landlord and tenant between the parties---Landlord in his affidavit in evidence and by producing large number of documents, had proved to be owner and landlord of premises in question---Rent Controller accepted ejectment application and directed petitioner's ejectment---Petitioner, instead of filing statutory appeal against ejectment order, filed an application under Order IX, R.13, C.P.C. long time after passing of the ejectment order, which application was dismissed-Writ of possession was issued against petitioner in execution proceedings---Constitutional petition filed by petitioner against writ of possession had been dismissed---Validity---Petitioner did not appear in the court to controvert the statement of the landlord with regard to his ownership of premises---Statement of landlord on oath which was consistent with his pleadings remained unchallenged and unrebutted---Question of fact of ownership of landlord had finally been determined by Rent Controller, which was not challenged in appeal---Same having attained finality, could not be called in question in the petition---High Court had rightly dismissed constitutional petition as it was not expected to enter into question of fact as petitioner had no right, interest or title to challenge the title of the landlord in ejectment proceedings without first surrendering of his possession---No other question of law having been urged by the petitioner, no ground was available for grant of leave against impugned order of the High Court, which was unexceptionable.

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

Nemo for Respondents.

SCMR 2008 SUPREME COURT 133 #

2008 S C M R 133

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J., Abdul Hameed Dogar, Muhammad Nawaz Abbasi, Faqir Muhammad Khokhar, Mian Shakirullah Jan, M. Javed Buttar and Raja Fayyaz Ahmad, JJ

Haji AMIN----Petitioner

Versus

NAVAID HUSSAIN and others----Respondents

Civil Petition No.129-K of 2007, decided on 3rd September, 2007.

(On appeal from the judgment, dated 5-12-2006 of the High Court of Sindh, Karachi, passed in High Court Appeal No.251 of 2006).

Sindh Buildings Control Ordinance (V of 1979)---

----S. 19---Sindh Regulation and Control (Use of Plots and Construction of Buildings) Ordinance (VIII of 2002), Ss.4 & 5---Sindh Chief Court Rules (O.S.), R.76---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2 & 4---Specific Relief Act (I of 1877), Ss.42 & 54---Constitution of Pakistan (1973), Art.185(3)---Suit for declaration and permanent injunction---Suit by residents of Housing Society aggrieved of construction of illegal multi-storey commercial building by defendant on suit plot having a residential status---Temporary injunction against such construction, application for---Plea of defendant was that suit plot was auctioned as commercial plot by Official Assignee appointed by High Court in winding up proceedings; that sale of suit plot in favour of defendant as higher bidder was allowed by High Court and he obtained its possession from Official Assignee; that suit plot was a corner plot located at junction of two roads declared as commercial roads; that construction being raised on suit plot was in accordance with approved plan; that plaintiffs in response to notice published in newspaper seven years ago for auction of suit plot as commercial did not object thereto; and that plaintiffs did not object to Housing Society or lessor for issuing mutation of suit plot as commercial---Validity---Both the roads had already been declared/approved by authorities as commercialized and commercial buildings existed on both sides thereof---Alleged breach of conditions of lease containing restrictive clause between parties and non-publication of notice inviting objection by lessor for conversion of suit plot as commercial besides other questions arising from pleadings of parties could effectively be determined in suit after recording evidence---Defendant was entitled to commence construction works in accordance with approved building plan, which shall be subject to final decision of suit---Such observations regarding defendant's entitlement to raise construction being tentative in nature, would not affect decision of suit on merits and law---Application for temporary injunction dismissed in circumstances.

Fakhruddin G. Ebrahim, Senior Advocate Supreme Court, Abdul Qadir Khan, Advocate Supreme Court, Ms. Ismat Mehdi, Advocate Supreme Court and Anwar Tariq, Advocate Supreme Court for Petitioner.

Syed Mansoor Ali Shah, Advocate Supreme Court for Respondents Nos.1 to 6.

Nemo for Respondents Nos.7 to 9.

Date of hearing: 3rd September, 2007.

SCMR 2008 SUPREME COURT 141 #

2008 S C M R 141

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Falak Sher, JJ

Mst. MEHTAB BEGUM----Appellant

Versus

Nawabzada NASRULLAH KHAN through L.Rs.----Respondents

Civil Appeal No.939 of 2000, decided on 11th September, 2006.

(On appeal from the judgment, dated 6-6-2000 passed by the Lahore High Court, Multan Bench, Multan in Regular Second Appeal No.1222 of 1981).

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

----S. 6---Constitution of Pakistan (1973), Art.185---Appeal to Supreme Court---Suit for pre-emption---Sale was pre-empted by respondent on the grounds that he was a co-sharer in the Khata; was owner in the estate and was real brother of the vendor---Two courts below and High Court concurrently decreed suit---Only objection raised by the vendee/appellant was that pre-emptor/respondent had already been hit by Land Reforms Regulation---Contention of appellant was that surplus land of respondent stood resumed; that he had been brought to the level of subsistence holding and that if the present decree was granted to him, he would again be hit by the Land Reforms Regulation and the grant of decree would be an exercise in futility---Validity---Whether a person was hit by Land Reforms, either by purchase or by obtaining a decree, was the sole job of Land Commission to determine and that too in future---Pre-emption decree could not be refused on the sole ground that it would increase the holding of pre-emptor.

Kh. Muhammad Farooq, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Appellant.

Malik M. Rafiq Rajwana, Advocate Supreme Court with M. S. Khattak, Advocate-on-Record for Respondents Nos.1 and 3.

Respondent No.2: Ex parte.

Date of hearing: 11th September, 2006.

SCMR 2008 SUPREME COURT 143 #

2008 S C M R 143

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Ch. Ijaz Ahmed and Hamid Ali Mirza, JJ

Mst. ZOHRA BEGUM and 6 others----Appellants

Versus

MUHAMMAD ISMAIL----Respondent

Civil Appeal No.487 of 2003, decided on 11th April, 2007.

(On appeal from the judgment, dated 11-3-2002 of the Lahore High Court, Lahore, passed in Civil Revision No.2014 of 1989).

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

----O. XX, R.1---Judgment, announcement without writing---Whether irregularity or illegality---Judgment of Trial Court was quite elaborate with discussion on each and every issue and the same was upheld by lower Appellate Court on all issues---Announcing the judgment before writing was an irregularity and not illegality rendering the judgment void.

Samiul Haq's case 2001 SCMR 1053 ref.

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

----S. 42---Constitution of Pakistan (1973), Art.185---Suit for declaration---Benami transaction---Proof---Concurrent findings of fact by the courts below---Plaintiff alleged that suit-land was purchased by him in the name of defendant who was his brother-in-law---Suit and appeal filed by plaintiff were concurrently dismissed by Trial Court and appellate Court, which judgments were maintained by High Court---Validity---All title deeds of suit property had come on record from the custody of defendant and not plaintiff---Was also proved on record that there was material contradiction about amount of consideration and mode and manner of payment thereof---Payment was proved to have been made by defendant and record also proved that defendant had installed tube-well and for such purpose had obtained a loan from Agricultural Development Bank of Pakistan against which a property belonging to defendant was mortgaged---Amount of loan was paid and mortgaged property was got released---Electric connection was also in the name of defendant and pre-consolidation and post-consolidation record of land in shape of Misal-e-Haqiat Ishtimal indicated defendant to be in possession---Tenant over the suit-land had been paying half Batai to defendant---Alleged possession of son of plaintiff as tenant was in dispute and the matter was pending before Criminal Court---Supreme Court declined to disagree with elaborate and exhaustive judgment and decree passed by High Court---Concurrent findings of three courts were in accord with the material on record---Appeal was dismissed.

Muhammad Sajid Hussain's case 1991 SCMR 703 ref.

Mian Fazal-e-Mehmood, Senior Advocate Supreme Court for Appellants.

S.M. Masood, Advocate Supreme Court for Respondent.

Date of hearing: 11th April, 2007.

SCMR 2008 SUPREME COURT 148 #

2008 S C M R 148

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Hamid Ali Mirza, JJ

MUHAMMAD ASHFAQ and, others----Petitioners

Versus

GOVERNMENT OF PAKISTAN through Secretary, M/o Petroleum and Natural Resources, Islamabad and another----Respondents

Civil Petitions Nos.1458, 1459, 1460 and 1585 of 2005, decided on 27th February, 2007.

(On appeal from the judgment, dated 9-2-2005 in Writ Petitions Nos.2532, 6530, 6891 and 6892 of 2003 passed by the Lahore High Court, Lahore).

Constitution of Pakistan (1973)---

----Art. 185(3)---Appellate jurisdiction of Supreme Court---New plea--Effect---Appointment of employee---Two years' training by such employee---Concealing of facts---Petitioners were contract employee of respondent-Company and on its expiry, their contract was not extended---Petitioners in earlier round of litigation, had prayed that they be absorbed/appointed but their such prayer was declined by 'High Court as well as by Supreme Court---Subsequently, petitioners again filed constitutional petitions on the ground that they were not afforded opportunity to compete for induction nor the posts were advertised for recruitment, which petitions were also dismissed by High Court---Plea raised by petitioners was that after having undergone training for two years they had become regular in service and were entitled to be absorbed---Validity---Petitioners could not be permitted to plead different case than what they pleaded before High Court---Case of petitioners was different in constitutional petitions than what had been canvassed before Supreme Court---Petitioner having pursued their remedy before High Court. and Supreme Court for grievance of their appointment on expiry of their training period could not be permitted under law to come again with the same prayer before Supreme Court on some other pretext by concealing and suppressing earlier litigation having gone between the parties---Petitioners had conceded to undergo training for two years against fixed stipend with no guarantee or undertaking from respondent-Company for their absorption or appointment---Petitioners could not agitate the plea that they be absorbed and appointed considering also the fact that earlier also they were declined such relief---Supreme Court declined to interfere with the judgment passed by High Court---Leave to appeal was refused.

Shamsul Arfin and others v. Government of Pakistan and others 1999 MLD 3446; Muhammad Azam Suhail and others v. Government of Pakistan and others 1998 SCMR 1549 and Managing Director Sui Southern Gas Company Ltd. v. Ghulam Abbas PLD 2003 SC 724 ref.

Syed Iftikhar Hussain Gilani, Advocate Supreme Court for Petitioners.

Salim Baig, Advocate Supreme Court for Respondents.

Date of hearing: 27th February, 2007.

SCMR 2008 SUPREME COURT 152 #

2008 S C M R 152

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

AMANULLA H----Appellant

Versus

KASHMIR KHAN----Respondent

Civil Appeal No.221 of 2003 in C.P. No.490-P of 2002, decided on 27th September, 2006.

(On appeal from the judgment/order, dated 7-11-2002 passed by Peshawar High Court, Peshawar, in Civil Revision No.557 of 2001).

Specific Relief Act (I of 1877)---

---- Ss. 8 & 54--Oaths Act (X of 1873), S.11---Constitution of Pakistan (1973), Art.185---Suit for possession and declaration---Decision on oath---Both parties, during the course of the trial, recorded their statements that case be decided on the basis of oath to be taken on Holy Qur'an by the appellant---Appellant having taken oath on the Holy Qur'an, suit filed by the respondent against appellant was dismissed accordingly---Contention of respondent was that the offer of oath made by him under the heat of passion would not be considered to be voluntary and that separate statements of. the appellant and respondent of making the offer and its acceptance ought to have been recorded by the Trial Court---Contention of respondent was repelled' as no evidence was on record to show that the offer was made by the respondent under the heat of passion or that it was otherwise involuntary in nature---Sanctity was attached to an oath under the Islamic law---Unless there be something specifically prohibiting such a course, same would bind the parties in terms of S.11 of the Oaths Act, 1873---Respondent, in the facts and circumstances of the case, had willingly and voluntarily offered the appellant to take the oath, which he took---Respondent could not be permitted to resile from said oath subsequently---Impugned judgments of the High Court as well as that of the first Appellate Court, were not sustainable in law---Appeal was allowed and impugned judgments were set aside.

Nasrullah Jan v. Rastabaz Khan 1996 SCMR 108; Mahmood Ali Butt v. Inspector-General of Police, Punjab, Lahore and 10 others PLD 1997 SC 823; Abdul Qayyum Beg v. Rehmat Wali and 4 others PLD 1993 SC 289; Muhammad Ali v. Major Muhammad Aslam and others PLD 1990 SC 841 and Ahmad Khan and other v. Jewan PLD 2002 SC 655 rel.

Syed Sardar Hussain, Advocate Supreme Court for Appellant.

Mian Muhammad Younus Shah, Advocate Supreme Court for Respondent.

Date of hearing: 27th September, 2006.

SCMR 2008 SUPREME COURT 154 #

2008 S C M R 154

[Supreme Court of Pakistan]

Present: Falak Sher, Tassaduq Hussain Jillani and Raja Fayyaz Ahmad, JJ

MUHAMMAD ARSHAD----Petitioner

Versus

GHULAM HUSSAIN and others----Respondents

Criminal Petition No.205-L of 2006, decided on 15th August, 2007.

(On appeal from the judgment, dated 23-2-2006 of the Lahore High Court, Bahawalpur Bench, passed in Criminal Appeal No.108 of 2005 and Murder Reference No.16 of 2005).

Penal Code (XLV of 1860)---

---Ss. 302(b), 302(c), 324 & 337-A(i)---Constitution of Pakistan (1973), Art.185(3)---No misreading of evidence or any material piece of evidence having the effect of varying the impugned judgment having not been appraised in the true perspective, could be pointed out---Occurrence had rightly been held to have taken place as a result of free fight between the parties---Impugned judgment did not suffer from any impropriety, infirmity legal or factual, so as to call for any interference and the same was unexceptionable---Leave to appeal was declined by Supreme Court accordingly.

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

Sardar Ahmed Khan, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Respondents Nos.1 and 8.

Ms. Yasmeen Sehgal, D.P.G. for the State.

SCMR 2008 SUPREME COURT 158 #

2008 S C M R 158

[Supreme Court of Pakistan]

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

MUHAMMAD KHALID KHAN----Petitioner

Versus

ABDULLAH and others----Respondents

Criminal Petition No.537-L of 2006, decided on 28th August, 2007.

(Against the judgment of the Lahore High Court, dated 29-5-2006 passed in Criminal Revision No.755 of 2001).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal by High Court---Reappraisal of evidence---Testimony of eye-witnesses including the complainant did not inspire confidence, who were chance witnesses and they had not reasonably explained their presence at the spot at the relevant time---Complainant through had introduced two eye-witnesses, yet had produced only one---Names of the newly-added eye-witnesses were mentioned in the F.I.R., which had been disclosed to the Investigating Officer after some weeks of the occurrence---Eye-witnesses being admittedly inimical towards the accused, unimpeachable evidence was required to corroborate the ocular testimony for sustaining conviction, which was lacking in the case---Said grounds which found favour with High Court in passing the judgment of acquittal were neither fanciful nor conjectural and the same were backed by the material on record---Crime empties though secured from the spot were not even sent to Forensic Science Laboratory for comparison---Motive also was not explicit and was rather vague---Leave to appeal was declined to complainant in circumstances.

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

M.A. Zafar, Advocate Supreme Court for Respondent No.1.

Pervaiz Alamgir, Deputy Prosecutor-General, Punjab for the State.

SCMR 2008 SUPREME COURT 161 #

2008 S C M R 161

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Faqir Muhammad Khokhar, JJ

MAQBOOL KHAN----Petitioner

Versus

THE STATE----Respondent

Jail PetitionNo.178 of 2006, decided on 6th August, 2007.

(On appeal from the judgment, dated 14-11-2005 of the Peshawar High Court, D.I. Khan Bench, passed in Criminal Jail Appeal No.36 of 2005).

Penal Code (XLV of 1860)----

----Ss. 302(b)/34 & 337-A(i)(a)---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Complainant, an injured witness, had supported the prosecution case in toto and his version was fully corroborated by medical evidence---Motive was proved---Occurrence had taken place in broad-daylight---F.I.R. had been lodged without any delay---Contention that, conviction could not be awarded on the basis of, evidence furnished by sole witness was not sustainable in law---Worth and truthfulness of ocular account furnished by the witness were to be taken into consideration while believing the same and relying for conviction---Murder had been established to be premeditated---No misreading or non-appraisal of evidence could be pointed out warranting interference by Supreme Court---Concurrent findings of Courts below did not suffer from any infirmity---Leave to appeal was refused to accused in circumstances.

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

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

SCMR 2008 SUPREME COURT 164 #

2008 S C M R 164

[Supreme Court of Pakistan]

Present. Rana Bhagwandas, Actg. C.J. and Sardar Muhammad Raza Khan, JJ

Rana MAQSOOD AHMED----Petitioner

Versus

Rana NAVEED AHMED and others----Respondents

Criminal Petition No.128 of 2006, decided on 19th July, 2007.

(On appeal from the order, dated 11-5-2006 passed by Lahore High Court, Lahore, in Criminal Miscellaneous No.3390/B of 2006).

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.489-F---Constitution of Pakistan (1973), Art.185(3)---Application for cancellation of bail, refusal of---Accused earlier had been admitted to pre-arrest bail which had been maintained by High Court---Bail of accused had been cancelled only due to his absence during trial and he was taken into, custody---High Court thereafter had released the accused on bail---Admittedly accused was a citizen also of Norway and usually resided there---High Court had rightly observed that the accused was never served in connection with proceedings at trial---Trial Court had fallen into a misconception that absence of accused was bound to entail the cancellation of bail under the orders of High Court---Sessions Court had maintained the order of Trial Court without even hearing the accused whose bail stood cancelled and who was then in custody---Reasons advanced by High Court for granting bail to accused did not suffer from any infirmity---Leave to appeal was declined to complainant in circumstances.

Tariq Mehmood, Advocate Supreme Court for Petitioner.

Chaudhry Munir Sadiq, Deputy Prosecutor-General, Punjab for the State.

Mian Abdul Ghaffar, Advocate Supreme Court for Respondent No. 1.

SCMR 2008 SUPREME COURT 165 #

2008 S C M R 165

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J., Rana Bhagwandas and Faqir Muhammad Khokhar, JJ

Makhdoom JAVED HASHMI----Petitioner

Versus

THE STATE----Respondent

Criminal Review Petition No.75 of 2006, decided on 3rd August, 2007.

(On review from judgment, dated 9-10-2006 of this Court passed in Criminal Petition No.89 of 2005, on appeal from judgment, dated 24-3-2005 of the Lahore High Court, Lahore, passed in Criminal Miscellaneous No.1530/B of 2004 in Criminal Appeal No.166 of 2004).

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.124-A, 131/109, 505(a), 468, 469 & 471---Constitution of Pakistan (1973), Art.188---Review petition---Suspension of sentence---While dismissing the earlier petition of the accused under Art.185(3) of the Constitution for suspension of his conviction and sentence, the factum of the period of his sentence already undergone by him had not been taken into consideration by Supreme Court---Except the sentence under Ss.131/109, P.P.C. accused had already undergone all the other sentences and even under Ss.131/109, P.P.C. he had also undergone the major portion of its sentence---If the remissions granted to other convicts from time to time by the President coupled with the remissions under the Jail Manual and the Code of Criminal Procedure for total period of about two years and eight months were counted, accused, prima facie, would have almost undergone the entire sentence---Accused had filed the appeal before the High Court on 24-4-2004, but not a single hearing had so far taken place and it was not certain whether the same would be fixed in the foreseeable future---Necessary sanction of the Government for taking cognizance of an offence under S.124-A, P.P.C. did not seem to have been obtained in terms of S.196, Cr.P.C.---Accused who had already undergone almost half of his sentence might seek suspension of his sentence in the interest of justice keeping in view the facts and circumstances of a particular case---If ultimately the appeal of accused was dismissed by the appellate Court, the provisions of subsection (3) of S.426, Cr.P.C. would come into operation and the period of suspension of sentence would stand excluded and he would have to undergo the sentence awarded to him by the Court---Impugned judgment was reviewed and recalled in circumstances---Convictions' and sentences of accused were suspended and he was released on bail accordingly.

Salman Taseer v. Judge, Special Court 1993 SCMR 71 and Adnan A. Khawaja v. The State Criminal Petition No.281 of 2001 ref.

Muhammad Akram Shaikh, Senior Advocate Supreme Court assisted by Dr. Tariq Hassan, Barrister Kamran Sheikh, Miss Natalya Kamal and M.A. Zaidi, Advocate-on-Record for Petitioner.

Arshad Ali Chaudhry, Advocate Supreme Court/Advocate-on-Record, Ch. Munir Sadiq, D.P.G., Punjab and Raja Saeed Akram, A.A.-G., Punjab for the State.

Date of hearing: 3rd August, 2007.

SCMR 2008 SUPREME COURT 171 #

2008 S C M R 171

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ

MUHAMMAD SADIQ----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.238 of 2006, decided on 24th July, 2007.

(On appeal from the judgment, dated 20-4-2006 of the Lahore High Court, Lahore, passed in Criminal Appeal No.93 of 2001).

Penal Code (XLV of 1860)---

---S. 302(b)-Constitution of Pakistan (1973), Art.185(3)---Contention was that accused being seventy years of age at the time of incident was a weak and infirm person and was not able to actively participate in the commission of offence---Accused even in his jail petition had mentioned his age as eighty years which was contended to be an extenuating circumstance for reduction of his sentence---Leave to appeal was granted to accused to consider the above contention.

M. Zaman Bhatti, Advocate Supreme Court for Petitioner.

Ch. Munir Sadiq, Deputy Prosecutor-General, Punjab for the State.

SCMR 2008 SUPREME COURT 172 #

2008 S C M R 172

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Syed Jamshed Ali, JJ

SAMI-UD-DIN GHORI----Petitioner

Versus

LAHORE DEVELOPMENT AUTHORITY and another----Respondents

Civil Petition No.117-L of 2004, decided on 1st March, 2007.

(Against the judgment/order, dated 28-10-2003 of the Lahore High Court, Lahore, passed in Intra-Court Appeal No.432 of 2003).

Constitution of Pakistan (1973)---

----Art 185(3)---Petition for leave to appeal---Claim for allotment of residential plot against quota reserved for overseas Pakistanis---Petitioner's constitutional petition, in which he sought a direction to the respondent Authority to allot him a residential plot against the quota reserved for overseas Pakistanis, having been dismissed, petitioner had filed petition for leave to appeal against judgment of High Court---Scope---Special quota reserved for overseas Pakistanis stood abolished before the petitioner's application could mature---Counsel for petitioner had not referred to any provision of law, rule or policy under which he could claim residential plot as of right---Concurrent judgments, in circumstances being unexceptionable, petition against said judgments, was dismissed and leave refused.

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

Nemo for Respondents.

SCMR 2008 SUPREME COURT 173 #

2008 S C M R 173

[Supreme Court of Pakistan]

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

MUHAMMAD DAUD and another----Petitioners

Versus

THE STATE and another----Respondents

Criminal Petitions Nos.111 and 133 of 2007, decided on 13th August, 2007.

(On appeal from the judgment, dated 5-3-2007 passed by Peshawar High Court, Abbottabad Bench, in Criminal Miscellaneous No.71 of 2007 and Criminal Miscellaneous No.52 of 2007).

Criminal Procedure Code (V of 1898)---

----S. 497---Constitution of Pakistan (1973), Art.185(3)---Bail, grant of---Rule of consistency---Co-accused in the case had already been admitted to bail---Accused were also allowed bail in view of the rule of consistency in circumstances---Petitions were converted into appeals and allowed accordingly.

Raja Muhammad Ibrahim Satti, Advocate Supreme Court for Petitioner.

Muhammad Zaman Bhatti Advocate Supreme Court for Respondents (in both cases).

SCMR 2008 SUPREME COURT 174 #

2008 S C M R 174

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

Mst. SHAHIDA ZAREEN----Petitioner

Versus

IQRAR AHMED SIDDIQUI----Respondent

Civil Petition No.278-K of 2006, decided on 12th October, 2006.

(On appeal from the order, dated 30-3-2006 in H.C.A. No.353 of 1998 passed by the High Court of Sindh, Karachi).

Civil Procedure Code (V of 1908)---

----O. IX, R.3---Constitution of Pakistan (1973), Art. 185(3)---Non-appearance of parties after close of evidence---Whereafter the close of their evidence, parties did not appear to assist the Court by highlighting the salient features of their respective cases, the only course available to the court was to examine the record, evaluate the evidence and record the verdict on merits rather than to dismiss the suit for non-prosecution---Leave to appeal was granted to consider whether High Court was -legally entitled to set aside the judgment and remand the suit for recording fresh judgment in accordance with law.

Syed Jamil Ahmed, Advocate Supreme Court and Akhlaq Ahmad Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondent.

SCMR 2008 SUPREME COURT 176 #

2008 S C M R 176

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Actg. C.J. and Sardar Muhammad Raza Khan, J

MUHAMMAD ALI alias MAMMO----Petitioner

Versus

THE STATE----Respondent

Jail Petition Na.223 of 2006, decided on 12th July, 2007.

(On appeal from the judgment, dated 19-4-2006 of the Lahore High Court, Lahore, passed in Criminal Appeal No.1143 of 1999 and Murder Reference No.443 of 1999).

Penal Code (XLV of 1860)---

----Ss. 302(b)/149---Constitution of Pakistan (1973), Art.185(3)---Each of the five assailants, including the accused, had been attributed distinct and specific role of causing different injuries on the person of the deceased---Remaining four accused had been acquitted on. the basis of same evidence while the accused alone had been convicted---Evidence in this behalf needed to be reappraised, lest the same might have fallen short of principles laid down for the appreciation of evidence in criminal justice---Leave to appeal was accordingly granted to accused, inter alias to reappraise the evidence on record.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.

Chaudhry Munir Sadiq, Deputy Prosecutor-General, Punjab for the State.

2008 S C M R 186

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad and Ghulam Rabbani, JJ

MUHAMMAD BASHIR ALI SIDDIQUI----Petitioner

Versus

Mst. SARWAR JAHAN BEGUM and another----Respondents

Civil Petition No.413-K of 2006, decided on 2nd October, 2006.

(On appeal from judgment, dated 19-5-2005 passed by High Court of Sindh, Circuit Bench at Hyderabad in C.P. No.S-179 of 2005).

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.185(3)---Dissolution of marriage on ground of Khula---Parties were married in the year 1970---Nikahnama had provided that in case respondent/wife obtained Khula, she would have to pay a sum of Rs.2,50,000 to the petitioner/husband; and if the petitioner would divorce the respondent, he would pay a sum of Rs.2,50,000 to her---Suit filed by respondent (wife) for obtaining dissolution of marriage on ground of Khula was finally decreed---Petitioner (husband) had contended that Family Judge as well as High Court had failed to take into account the Nikahnama-Contention of petitioner was that it was incumbent upon Family Court to award Rs.2,50,000 while granting decree by way of Khula in favour of petitioner---Contention of petitioner was absolutely frivolous as it was against the basic principle of law which required the parties to remain in marital tie in a peaceful and tranquil atmosphere and were not required to be bound by stringent conditions to remain in marriage bond.

Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondents.

SCMR 2008 SUPREME COURT 188 #

2008 S C M R 188

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Tassaduq Hussain Jillani, JJ

MUHAMMAD AJMAL and others----Petitioners

Versus

KHALIL AHMAD and others----Respondents

Civil Petition No.401-L of 2001, decided on 30th July, 2007.

(Against the judgment of the Lahore High Court dated 8-11-2000 passed in Writ Petition No.113/R of 2000).

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

----S. 2---Constitution of Pakistan (1973), Art.185(3)---Transfer of evacuee property---Settlement Commissioner maintained the transfer order made in favour of the respondents, which was concurred by the High Court vide impugned order---Concurrent findings of fact were to the effect that the respondents had made construction in dispute and not the evacuees---That being so, impugned judgment was unexceptionable---Even otherwise, having accepted the terms of the qualified order passed in constitutional petition filed by the respondents, petitioners were estopped to challenge the orders passed pursuant thereto.

A.R. Shaukat, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioners.

Abdul Majeed Khan, Advocate Supreme Court, A.D. Nasim, Advocate Supreme Court and M. Anwar Khan, Advocate-on-Record for Respondents.

Akhtar Ali Qureshi, A.A.-G. Punjab for the State.

SCMR 2008 SUPREME COURT 190 #

2008 S C M R 190

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

NAZEER AHMED----Petitioner

Versus

MAQSOOD AHMED----Respondent

C.P.L.A. No.405-K of 2006, decided on 13th October, 2006.

(On appeal from the judgment of High Court of Sindh, Hyderabad Circuit dated 25-5-2006 passed in Appeal No.11 of 2005).

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

----Art. 185(3)---Petition for leave to appeal---Question raised by petitioner before the Supreme Court neither was agitated nor was pleaded by him at the hearing of appeal before the High Court---Supreme Court declined to entertain said question and to dilate upon it for the first time---Findings of fact recorded by two courts below and affirmed by High Court in second appeal, did not suffer from any illegality, infirmity, misreading of record or misconception of law---In absence of any ground for interference by the Supreme Court, in the matter, petition for leave to appeal was dismissed.

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

----S. 100---Second appeal---Scope---Second appeal to the High Court; would lie from every decree passed in appeal by any court subordinate to a High Court on the grounds; vii. that the decision being contrary to law or to some usage having the force of law; that the decision having failed to determine some material issue of law or usage having the force of law; and that a substantial error or defect in the procedure provided by Civil Procedure Code, 1908 or by any other law for the time being in force, which could possibly have produced error or defect in the decision of the case upon merits---Scope of second appeal was restricted and limited to the ground prescribed by law and second Appellate Court was not expected to enter into reappraisal of evidence or to strike down concurrent findings of fact, unless the case fell within any of the exceptions described hereinabove.

Umar Farooq Khan, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 13th October, 2006.

SCMR 2008 SUPREME COURT 192 #

2008 S C M R 192

[Supreme Court of Pakistan]

Present: Falak Sher, Tassaduq Hussain Jillani and Raja Fayyaz Ahmad, JJ

QAMAR HAYAT KHAN----Petitioner

Versus

MUHAMMAD AKRAM and others----Respondents

Criminal Petitions Nos.379 and 380-L of 2006, decided on 16th August, 2007.

(On appeal from the judgment, dated 18-4-2006 of the Lahore High Court, Lahore, passed in Criminal Revision No.572 of 2000, Criminal Appeal No.1173 of 2000 and Murder Reference No.409 of 2000).

Penal Code (XLV of 1860)---

----S. 302(b)/34---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal by High Court---High Court had reappraised the entire evidence available on record by making threadbare examination of each piece of evidence supported by reasons based on record---No piece of evidence incriminating in nature produced by the prosecution appeared to have been misread, omitted from consideration or not appraised in its true perspective---Impugned judgment of acquittal was unexceptionable and did not suffer from any factual or legal infirmity---Leave to appeal was declined to complainant accordingly.

M.A. Zafar, Advocate Supreme Court for Petitioner (in both criminal petitions).

SCMR 2008 SUPREME COURT 195 #

2008 S C M R 195

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi, Hamid Ali Mirza and Ghulam Rabbani, JJ

Mst. HAMEEDA BIBI----Petitioner

Versus

THE STATE and others----Respondents

Cr. P. No.42-K of 2007, heard on 13th August, 2007.

Constitution of Pakistan (1973)---

----Art. 185(3)---Occurrence had taken place during the night of 17th of moon when sufficient visibility was available to identify the culprit in the moon light at a distance from which injured witness was fired at---Statement of injured witness regarding the identification of accused was also corroborated by other prosecution witnesses, who claimed to have seen accused running from the spot from a short distance after the occurrence---In view of said evidence of identification, the question relating to the guilt of acquitted accused would require examination---Petition for leave to appeal was granted to reappraise the evidence and consider said question.

Mumtaz Ali Khan Deshmukh, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

SCMR 2008 SUPREME COURT 196 #

2008 S C M R196

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Ghulam Rabbani, JJ

Dr. ALLAH NAWAZ A. QAZI----Petitioner

Versus

THE STATE through Chairman NAB----Respondent

Civil Petition No.577-K of 2006, decided on 20th December, 2006.

(On appeal from the judgment, dated 2-11-2006 of the High Court of Sindh, Karachi in C.P. No.D-2004 of 2006).

Criminal Procedure Code (V of 1898)---

----S. 497---National Accountability Ordinance (XVIII of 1999), Ss.9(a) & 10(2)---Constitution of Pakistan (1973), Art.185(3)---Bail, grant of---Allegation against the accused was that he as Additional Medical Superintendent and Member of the Health Welfare Committee had assisted the co-accused while giving approval for issuance of cheques against fake, fictitious, forged invoices, bills and indent forms, which factor could only be assessed after recording prosecution evidence---According to the functions of the Members of the aforesaid Committee, Zakat cheques were to be signed by two Members---No cheque or any other relevant document could be produced showing the signature of accused whereby Zakat Fund was said to have been misappropriated by him---Even in the Reference accused had not been shown as beneficiary in the alleged misappropriation of Zakat Fund---Allegations made against accused, thus, needed further probe and he was admitted to bail accordingly.

Anwar Saifullah Khan v. The State and 3 others 2001 SCMR 1040 rel.

Muhammad Ashraf Kazi, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Petitioner.

Ainuddin Khan, Advocate Supreme Court for Respondent.

Date of hearing: 20th December, 2006.

SCMR 2008 SUPREME COURT 200 #

2008 S C M R 200

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

RAB NAWAZ HINGORO----Petitioner

Versus

GOVERNMENT OF SINDH and others----Respondents

C.P.L.A. No.502-K of 2007, heard on 7th August, 2007.

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

----Ss. 3 & 5---Constitution of Pakistan (1973), Art.212(3)---Removal from service---Misconduct---Issuance of show-cause notice and conduct of Inquiry Officer against the petitioner---Departmental Authorities as well as the Tribunal had concurrently found that appointments made by the petitioner were ghost and did not exist at the site, but he had been disbursing their salaries illegally and unauthorizedly---Nothing was on record to rebut said concurrent findings which had been concluded on definite and concrete material on record---Such findings could not be disturbed on flimsy and technical grounds---Petitioner had contended that he had been exonerated in the criminal case registered against him in respect of the illegal appointments in question---Contention was repelled as prosecution on criminal charge and departmental proceedings were entirely independent of each other; as one related to the enforcement of criminal liability, whereas the other was concerned with the service discipline---Acquittal of petitioner on criminal charge could have no bearing on the validity of the disciplinary proceedings---Both the proceedings could proceed side by side and no legal bar existed to the continuation of departmental proceedings after the conviction or acquittal from criminal case---In absence of any ground to interfere with the exercise of jurisdiction by the Service Tribunal, petition for leave to appeal was dismissed.

Petitioner in person.

Ghulam Qadir Jatoi, Advocate-on-Record for Respondents.

Date of hearing: 7th August, 2007.

SCMR 2008 SUPREME COURT 204 #

2008 S C M R 204

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

COMMISSIONER OF INCOME TAX, KARACHI----Petitioner

Versus

Messrs SHADMAN COTTON MILLS LTD., KARACHI through Director----Respondent

Civil Petition No.503-K of 2006, decided on 22nd August, .2007.

(On appeal from the judgment of High Court of Sindh, dated 18-8-2006 passed in I.T.R. No.D-425 of 1999).

(a) Income Tax Ordinance (XXXI of 1979)---

----S. 156(1)---Expression "mistake apparent on record" as used in S.156(1) of Income Tax Ordinance, 1979---Connotation stated.

The expression "mistake apparent on record" means the error or mistake so manifest and clear which, if is permitted to remain on record, may have material effect on the case. But an error of fact or law, which having direct nexus with the question of determination of rights of parties affecting their substantial rights or causing prejudice to their interest, is not a mistake apparent on the record to be rectified under S.156 of Income Tax Ordinance, 1979. The mistake must be of the nature, which is floating on the surface of record and must not involve, an elaborate discussion or detailed probe or process of determination.

(b) Income Tax Ordinance (XXXI of 1979)---

---Ss. 66-A & 156---Revision of assessment order or rectification of mistake therein---Powers of Revenue and Appellate Tribunal---Distinction stated.

The plain reading of sections 66-A and 156 of Income Tax Ordinance, 1979 would show that jurisdiction under section 156 is very limited, because under this section, Income Tax Authorities are authorized to amend an order to the extent of rectifying the mistake appearing on the face of the record, and notwithstanding the fact that order passed under this section has the effect of enhancing the tax liability or reducing the same must be within the scope and domain of law and must not be passed with the intent and purpose to increase the tax liability of the assessee, and further such an order must be passed after giving reasonable opportunity of hearing to the concerned parties. The Tax Authorities or the Tribunal, as the case may be, cannot exercise jurisdiction under section 156(1) of the Income-Tax Ordinance, 1979 in respect of an order, which, due to some legal or factual defect, has to be examined by the next authority in exercise of powers under section 66-A of the Ordinance or appellate jurisdiction as the case may be. Similarly Assessing Officer does not enjoy the power of review to recall its earlier order under section 156(1) of the Ordinance; rather he has limited power of rectifying the mistake on the face of the order without any material change. The tax liability of an assessee in the process of rectification cannot be altered on the basis of a consideration, which was not part of the original proceedings and the concept of rectification of mistake to correct the error committed in the assessment order, which is found floating on the surface of the record, may not be beyond the assessment already made, therefore, the question as to whether certain expenses can or cannot be deducted for the purpose of assessment of the income is a material question, which cannot be brought within the purview of section 156(1) of the Ordinance for the purpose of rectification of the order of assessment, rather in such a case the proper course for the concerned party is to invoke the provision of section 66-A of the Ordinance or avail any other remedy provided under the law. The intention of law-maker was not to provide a regular or an alternate remedy under section 156 of the Ordinance to re-open the assessment after it is finalized. The scope of section 156(1) of the Ordinance cannot be enlarged to all errors of law and facts committed in the assessment.

1992 PTD 570; (1959) 36 ITR 350; 1999 PTD 570 SC (Pak) and 1998 PTD 147 ref.

Mumtaz A. Sheikh, Member Legal, Central Board of Revenue for Petitioner.

Nemo for Respondent.

Date of hearing: 22nd August, 2007.

SCMR 2008 SUPREME COURT 211 #

2008 S C M R 211

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Saiyed Saeed Ashhad, JJ

GOVERNMENT OF SINDH through Secretary, Cooperative Department, Karachi and another----Petitioners

Versus

ATAULLAH ANJUM----Respondent

Civil Petition No.444-K of 2006, decided on 20th October, 2006.

(On appeal from the judgment, dated 29-6-2006 passed by Sindh Service Tribunal, at Karachi in Service Appeal No.115 of 2005).

Sindh Civil Servants Act (XIV of 1973)---

----S. 13(1)---Retirement from service under S.13(1) of Sindh Civil Servants Act, 1973 could not be equated with that of compulsory retirement---Regular inquiry was contemplated in case of compulsory retirement, whereas no such requirement was envisaged in case of retirement under S.13(1) of Sindh Civil Servants Act, 1973---Principles.

Muhammad Qadeer and 2 others v. The Secretary, Defence Production Division, Government of Pakistan and others 2003 PLC (C.S.) 1389 fol.

Muhammad Sarwar Khan, Additional Advocate-General, Sindh and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioners.

Muhammad Ikram Siddiqui, Advocate Supreme Court and Raja Sher Muhammad Khan, Advocate-on-Record for Respondent.

SCMR 2008 SUPREME COURT 214 #

2008 S C M R 214

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

MUHAMMAD ALI S. BUKHARI----Appellant

Versus

FEDERATION OF PAKISTAN through Establishment Secretary, Islamabad and 2 others----Respondents

Civil Appeal No.86 of 2005, decided on 28th August, 2007.

(On appeal from the judgment of Federal Service Tribunal, Islamabad, dated 30-7-2004 passed in Service Appeal No.554(K) (C.S.) of 2002).

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

----Rr. 3(b) & 4(b)(i)(ii)(iii)---Civil Servants Act (LXXI of 1973), S.18---Constitution of Pakistan (1973), Art.212(3)---Removal from service---Charge of non-compliance of order of superiors and absence from duty without prior permission---Conversion of such penalty into compulsory retirement by Service Tribunal in appeal of civil servant---Plea of civil servant that he was not supposed to accept special assignment without order in writing; and that he had availed medical leave on advice of doctor---Validity---In service discipline, oral order of superiors in relation to official business would be as good order as in writing---Civil servant could earn leave on his own right, but for its grant, he must have followed proper procedure provided under the Rules---Civil servant was not supposed to avail any kind of leave entirely in his discretion and choice in departure to the Rules and service discipline---Absence from duty without leave, even if not wilful, but same being an act of disorder in service would constitute misconduct---Availing of medical leave without permission could not be considered an act of gross misconduct entailing major penalty of dismissal from service---Charge against civil servant was not so grave as to propose any of such two penalties---Major penalty of compulsory retirement was harsh and did not commensurate with nature of charge---Supreme Court converted penalty of compulsory retirement into reduction of two steps in time scale for a period of two years in consequence to which civil servant would be deemed to have earned two increments for a period of two years.

(b) Civil service---

----Oral order of superiors---Validity---In service discipline, oral order of superiors in relation to official business would be as good order as in writing.

---S. 18---Leave, right of---Scope---Civil servant would not be supposed to avail any kind of leave entirely in his discretion and choice in departure to the Rules and service discipline---Principles.

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

---R. 3(b)---Civil Servants Act (LXXI of 1973), S.18---Misconduct---Absence from duty without leave, even if not wilful, but same being an act of disorder in service, would constitute `misconduct'.

(e) Civil service---

----Disciplinary proceedings---Penalty, imposition of---Scope---Penalty in service matters would always be imposed in the light of charge against civil servant---Concept of major or minor penalty in service laws would be to determine quantum of punishment in the light of nature and gravity of charge.

Appellant in person.

Rizwan Ahmed Siddiqui, Deputy Attorney-General for Pakistan.

A.S.K. Ghouri, Advocate-on-Record for Respondent No.2.

Date of hearing: 28th August, 2007.

SCMR 2008 SUPREME COURT 219 #

2008 S C M R 219

[Supreme Court of Pakistan]

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

Haji FAQIR HUSSAIN and 7 others----Petitioners

Versus

SECRETARY, PROVINCIAL BOARD OF REVENUE, N.-W.F.P., PESHAWAR and 15 others----Respondents

Civil Petition No.328-P of 2003, decided on 4th September, 2007.

(On appeal from the judgment and decree, dated 12-3-2003 passed by Peshawar High Court, Peshawar, in Civil Revision No.627 of 2000).

West Pakistan Urban Immovable Property Tax Act (V of 1958)---

----S. 3---North-West Frontier Province Local Government Ordinance (IV of 1979), S.7(2)---Levy of property tax by issuing notification under S.7(2) of North-West Province Frontier Local Government Ordinance, 1979---Validity---Notification under S.7(2) of North-West Frontier Province Local Government, Ordinance, 1979 would operate only to include given areas into municipal limits---Such tax could be levied only if' urban area was specified in notification to be issued by Government under S.3(1) of West Pakistan Urban Immovable Property Act, 1958---Property tax could not be levied merely on basis of notification under S.7(2) of North-West Frontier Province Local Government Ordinance, 1979 in absence of independent notification under S.3(1) of West Pakistan Urban Immovable Property Tax Act, 1958---Principles.

Government of N.-W.F.P. v. Haji Muhammad Afzal Zia Civil Appeal No.437 of 1999 fol.

Barrister Masood Kausar, Advocate Supreme Court with Muhammad Zahoor Qureshi, Advocate-on-Record for Petitioners.

M.A. Qayyum Mazhar, Advocate Supreme Court assisted by Farman Ullah Khattak, Legal Advisor with M. Nazim, A.E.T.O. and Arshad Javed, Inspector, Excise Department for Respondents.

Date of hearing: 4th September, 2007.

SCMR 2008 SUPREME COURT 222 #

2008 S C M R 222

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ

ZAKIR HUSSAIN----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.224 of 2006, decided on 24th July, 2007.

(On appeal from the judgment, dated 13-4-2006 passed by Lahore High Court, Lahore, in Criminal Appeal No.1283 of 2000 and Murder Reference No.522 of 2000).

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

---S. 302(b)---Reappraisal of evidence---Witness---Deposition of complainant being son of deceased---Validity---Such relation itself might not be sufficient to discard deposition of complainant, unless it was proved that he had failed to stand the test of cross-examination and his evidence was not confidence inspiring.

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

---S. 302(b)---Reappraisal of evidence---Witness---Statement of prosecution witness having friendly relations with deceased could not be excluded from consideration for such reason.

---S. 302(b)---Reappraisal of evidence---Accused caused death of deceased by firing at him repeatedly while he was sitting outside a barber shop---Motive for offence was registration of case by deceased against father of accused for selling narcotics at Darbar and his expulsion from Darbar---Depositions of complainant and other eye-witness for being son and friend of deceased respectively could not be discarded---Ocular account of occurrence and motive of offence stood corroborated by medical evidence and recovery of crime weapon from spot on day of occurrence---Defence could not create even a slight doubt qua truthfulness of evidence of eye-witnesses and could not substantiate by direct or circumstantial evidence its plea of false implication or substitution of accused for real culprit---Prosecution's version was that deceased was attacked from front side, but according to medical evidence, he also sustained injuries on his back---Such contradiction in view of evidence on record would lead to an inference that prosecution witnesses had not seen occurrence or prosecution by not producing any other witness present at spot had suppressed truth---Place of occurrence was situated close to houses of parties thus, presence of eye-witnesses at barbershop could not be doubted---Unconcerned persons present at spot would usually hesitate to become witnesses in such case to avoid enmity---Non-production of barber or any other witness present at spot, thus, could not be considered a circumstance adverse to prosecution---No mitigating circumstance for granting lesser punishment to accused had been pointed out---Death sentence awarded to accused by Trial Court and confirmed by High Court was maintained by Supreme Court in circumstances.

Syed Ali Hussain Gillani, Advocate Supreme Court for Petitioner.

Ch. Munir Sadiq, D.P.G. for the State.

Date of hearing: 24th July, 2007.

SCMR 2008 SUPREME COURT 226 #

2008 S C M R 226

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Actg. CJ

Mst. SABIRAN BIBI and others----Appellants

Versus

AHMED KHAN and others----Respondents

Civil Miscellaneous No.63, in Civil Miscellaneous Application No. Nil of 2007 in Civil Review Petition No.214 of 2006, decided on 29th October, 2007.

Civil Procedure Code (V of 1908)---

----S. 12(2)---Constitution of Pakistan (1973), Arts.185(3) & 188---Application for challenging the validity of a judgment, decree or order on plea of fraud and misrepresentation---Maintainability---Application under S.12(2), C.P.C. was not entertainable after dismissal of petition for leave to appeal before Supreme Court and review application---If a point had not been raised at the hearing of said petition and not even at review stage before the Supreme Court, no new point of fact or law could be allowed to be urged in the proceedings under S.12(2), C.P.C. ---Application under S.12(2), C.P.C. appearing to be frivolous and vexatious in nature filed with intent to prolong the proceedings and to harass the respondents, appeal was dismissed awarding a token cost of Rs.5,000 to respondents for unnecessarily dragging them to the Court.

Muhammad Munir Peracha, Advocate Supreme Court for Appellants.

Gulzarin Kayani, Advocate Supreme Court for Respondents.

SCMR 2008 SUPREME COURT 228 #

2008 S C M R 228

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Nasir-ul-Mulk and Syed Jamshed Ali, JJ

MUHAMMAD ANWAR and another----Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous Applications Nos.354 and 355 of 2006 in Jail Petitions Nos.259 and 341 of 2005, decided on 19th September, 2007.

(On appeal from the judgment, dated 13-6-2005 passed by Balochistan High Court, Quetta, in Criminal Appeal No.262 of 2000).

Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan (1973), Art.185(3)---Jail petition---Compromise---Parties had entered into a compromise outside the court---To verify the authenticity of the compromise, matter was referred to the Sessions Judge, who, by submitting reports had confirmed that compromise was genuine which had been duly executed and the amount of Diyat had also been paid to the legal heirs of deceased---In view of reports of the Sessions Judge, parties having compromised the matter according to law, permission was accorded to compound the offence---All three convicts, were ordered to be released from custody forthwith, if not wanted in any other ease.

Niaz Ahmad Rathore, Advocate Supreme Court for Petitioners.

Mehmood Raza, Additional Advocate-General Balochistan and Ms. Yasmin Sehgal, D.P.G. for the State.

SCMR 2008 SUPREME COURT 230 #

2008 S C M R 230

[Supreme Court of Pakistan]

Present: Javed Iqbal and Raja Fayyaz Ahmed, JJ

MUHAMMAD HUSSAIN and others----Appellants

Versus

MUHAMMAD SHAFI and others----Respondents

Civil Appeal No.924 of 2004, decided on 26th February, 2007.

(On appeal from the order of the Lahore High Court, Lahore, dated 11-4-2003 passed in Civil Revision No.334 of 2002).

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

----S. 2-A---Constitution of Pakistan (1973), Art.185(3)---Supreme Court Rules, 1980, O.XIII, R.1---Question involved was interpretation of section 2-A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962---Petition for leave to appeal involving such question being barred by 2 days---Supreme Court granted leave to appeal to consider such law point and question of limitation.

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

----S. 2-A---Succession---Death of last female owner prior to year 1943---Attestation of inheritance mutation in year 1943 in favour of sons while excluding daughters of last female owner---Validity---Section 2-A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 would not apply to such case---Suit for declaration filed by daughters after 47 years of such mutation was dismissed in circumstances.

Ismail v. Ghulam Qadir 1990 SCMR 1667; Lal v. Rehmat Bibi PLD 1991 SC 582 and Ghulam Janat (Mst.) v. Ghulam Janat 2003 SCMR 362 rel.

M. Shahid Mubeen, Advocate Supreme Court for Appellants.

Nemo for Respondents 1 to 4 and 9 to 10.

'I'asawar Hussain Qureshi, Advocate Supreme Court for Respondents 5 to 8, 11 and 12.

Date of hearing: 26th February, 2007.

SCMR 2008 SUPREME COURT 236 #

2008 S C M R 236

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Falak Sher, JJ

Mrs. ANIS HAIDER and others----Petitioners

Versus

S. AMIR HAIDER and others----Respondents

Civil Petition No.844 of 2007, decided on 22nd October, 2007.

(On appeal from the judgment, dated 29-6-2007 of Lahore High Court, Lahore, passed in Writ Petition No.5439 of 2006).

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

----S. 12(2)---Application under S.12(2), C.P.C. containing serious allegations of forgery and fraud could not be decided without recording of evidence.

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

---Ss. 12(2), 141 & O.VII, R.11(a)---Application under S.12(2), C.P.C. containing serious allegations of forgery and fraud---Rejection of such application on basis of reply/written statement by invoking provision of O.VII, R.11(a), C.P.C.---Validity---Order VII, R.11, C.P.C. pertaining to suits and plaints in particular would. be attracted only when plaint, by itself, did not disclose any cause of action---Order VII, R.11, C.P.C. could not be attracted on basis of written statement as initial burden would remain on plaintiff/applicant to prove his case on basis of assertions made in pleadings Pleadings of parties could not be taken as evidence, particularly when its maker was not even examined in its support and cross-examined by his opponent---Provision of S.141, C.P.C. would not attract to such application---Substantial requirement of recording of evidence on pure and serious question of fact could not be by-passed by unjustifiably invoking of O.VII, R.11, C.P.C.---Such application could not be decided on mere reply/written statement by respondent without recording of evidence---Principles.

----Pleadings of parties could not be taken as evidence, particularly when its maker was not even examined in its support and cross-examined by his opponent.

M. Ramzan Ch., Advocate Supreme Court with Raja Abdul Ghafoor, Advocate-on-Record for Petitioners.

Hamid Khan, Senior Advocate Supreme Court with M.S. Khattak, Advocate-on-Record for Respondent No.1.

Amir Alam Khan, Advocate Supreme Court, Jehanzeb Khan Bharwana, Advocate Supreme Court and Ahmed Waheed Khan, Advocate Supreme Court for Respondents Nos.2 to 4.

Ali Akbar Qureshi, Advocate Supreme Court for Respondent No.5.

Arshad Ali Ch. Advocate-on-Record (absent) for Respondents Nos.2 to 5.

Date of hearing: 22nd October, 2007.

SCMR 2008 SUPREME COURT 240 #

2008 S C M R 240

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

IZHAR ALAM FAROOQI, ADVOCATE---Petitioner

Versus

Sheikh ABDUL SATTAR LASI and others ---Respondents

C.P.L.As. Nos.488-K and 489-K of 2006, decided on 17th November, 2006.

(On appeal from the judgment of High Court of Sindh, dated 12-9-2006 passed in C.Ps. D-217 and D-219 of 2005).

(a) Jurisdiction---

----Scope---Court having jurisdiction to adjudicate dispute and pass an order would also have implicit power to have its order implemented.

(b) Jurisdiction---

----Erroneous order passed by Court of competent jurisdiction would not render same without jurisdiction.

----Jurisdiction could not be assumed with consent of parties---Mandatory for Court to decide at first instance question of its jurisdiction, even though such question not raised by a party---Jurisdictional defect would not be removed by mere conclusion of trial or inquiry---Objection to jurisdiction could be raised at any subsequent stage---Principles.

Jurisdiction cannot be assumed with the consent of the parties, and notwithstanding the non-raising of such an objection by the parties, the forum taking cognizance of the matter must, at the first instance, decide the question of its jurisdiction. There can be no exception to the principle that an order passed or an act done by a Court or a Tribunal not competent to entertain the proceedings, is without jurisdiction; that it is mandatory for the Court or Tribunal, as the case may be, to attend the question of jurisdiction at the commencement of trial or inquiry; and that objection to the jurisdiction can be raised at any subsequent stage.

(d) Jurisdiction---

----Non-fulfilment of mandatory condition for exercise of jurisdiction before Court would render illegal its entire proceedings---Principles.

If a mandatory condition for the exercise of a jurisdiction before Court, Tribunal or Authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction.

Rashid Ahmed v. State PLD 1972 SC 271 fol.

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

----Ss. 2(b) & 15(4)(6)---Auction. of mortgaged property by Bank without intervention of Court---Claim of Bank/liability of borrower exceeding Rs. fifty million---Application by Bank to Banking Court for delivering possession of auctioned property to auction-purchaser---Pecuniary jurisdiction of Banking Court to decide such application---Scope---Banking Court could not take cognizance of a matter under S.15(6) of Financial Institutions (Recovery of Finances) Ordinance, 2001 beyond its pecuniary jurisdiction prescribed under S.2(b) thereof---Principles.

The plain reading of section 15(4) of Financial Institutions (Recovery of Finances) Ordinance, 2001 would unambiguously show that the jurisdiction of Banking Court either for the purpose of satisfaction of claim of the financial institution or disposal of allied matters must be determined in the light of provision of section 2(b) of the Ordinance, which is not confined only to the suits involving financial dispute, rather all matters directly or indirectly connected with the satisfaction of the claim of financial institution or the financial liability of a person are covered, arid Banking Court is not supposed to entertain the proceedings under section 15(6) in a case involving claim beyond its pecuniary jurisdiction.

Provision of section 2(b) of the Ordinance clearly shows that Banking Court established under the Ordinance cannot assume jurisdiction in a case in which claim of financial institution or the financial liability of a person is more than fifty million rupees, and all matters directly or indirectly connected with the claim of financial institution exceeding fifty million rupees are exclusively adjudicatable by the High Court.

The Banking Court established under the Ordinance is not authorized to take cognizance of a matter under section 15(6) beyond its pecuniary jurisdiction prescribed under section 2(b) of the Ordinance.

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

----S. 15(4)---Sale of mortgaged property by Bank without intervention of Court---Scope---Such sale without compliance of mandatory requirements of law in letter and spirit would invalidate sale as a whole---Principles.

The financial institution subject to the compliance of mandatory requirements of law is empowered to sell the mortgaged property under section 15(4) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 without the intervention of Court, and in addition to the furnishing of necessary particulars of the mortgaged properties and detail of the outstanding liability of the mortgagor is also required to send notices to all concerned and file proper accounts of sale proceedings in terms of section 15(10) of the Ordinance.

The sale of mortgaged property through auction without the compliance of the requirement of law in letter and spirit certainly invalidates the transaction as a whole.

The financial institution does not enjoy the unbridled and unlimited power to dispose of the mortgaged property in its sole discretion.

Petitioner in Person (in C.P. No.488 of 2006).

Izhar Alam Farooqi, Advocate Supreme Court for Petitioner (in C.P. No.489 of 2006).

Wasim Sajjad, Sr. Advocate Supreme Court and A.A. Siddiqui, Advocate-on-Record for Respondent No.1.

Date of hearing: 17th November, 2006.

SCMR 2008 SUPREME COURT 248 #

2008 S C M R 248

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Syed Jamshed Ali, JJ

MUHAMMAD SHARIF through Mst. Irshad Bibi and others----Petitioners

Versus

WALAYAT KHAN----Respondent

C.P.S.L.A. No.280-L of 2004, decided on 2nd March, 2006

(On appeal from the order, dated 16-10-2003 of the Lahore High Court passed in Civil Revision No.1317-D of 1998).

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 had found that pre-emptor had failed to complete first Talb within stipulated period---Appellate Court, however, reversed the findings of the Trial Court, but High Court concurring with the findings of the Trial Court non-suited pre-emptor on the ground that he had failed to prove Talb-i-Muwathibat---Validity---Pre-emptor could not produce any evidence to prove that he had made Talb-i-Muwathibat in accordance with law---Findings of the High Court, thus, could not be interfered with.

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

S.M. Masood, Advocate Supreme Court and Mahmud-ul-Islam, Advocate-on-Record for Respondent.

SCMR 2008 SUPREME COURT 249 #

2008 S C M R 249

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Actg. C. J. and Sardar Muhammad Raza Khan, J

MUHAMMAD AZAM----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.259-L of 2007, decided on 20th June, 2007.

(On appeal from the order, dated 5-4-2007 of the Lahore High Court, Lahore, passed in Criminal Miscellaneous No.1309/B of 2007).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/149---Constitution of Pakistan (1973), Art.185(3)---Bail, grant of---Three co-accused who were found innocent during police investigation had been released on bail---Case of accused was at par with the case of the said co-accused but he along with others had been summoned by the Trial Court on the basis of private complaint---Validity---Accused was entitled to equal treatment as meted out to the aforesaid three co-accused in the eyes of law following the rule of consistency---Bail was allowed to accused accordingly.

Rai M. Tufail Khan Kharal, Advocate Supreme Court for Petitioner.

Chaudhry Munir Sadiq, Deputy Prosecutor-General Punjab for the State.

SCMR 2008 SUPREME COURT 251 #

2008 S C M R 251

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Nasir-ul-Mulk, JJ

MUHAMMAD NASAR and another---Petitioners

Versus

THE STATE----Respondent

Cr.P.L.A. No.187-L of 2006, decided on 5th April, 2006.

(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench, dated 23-2-2006 passed in Criminal Appeal No.170 of 2002 and Murder Reference No.56 of 2002).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Petitioners sought leave to appeal against judgment of Division Bench of High Court whereby appeal of petitioners against their conviction and sentence under S.302(b), P.P.C. was dismissed and sentence of death awarded to them was maintained---Both courts had concurrently held that prosecution case to the extent of petitioners inspired confidence; that the testimony of witnesses was consistent on material particulars; and that eye-witnesses, though related, were natural witnesses---Said witnesses were subjected to lengthy cross-examination, but their credibility insofar as the role attributed to petitioner was concerned, could not be shattered---Incident was a broad daylight occurrence--- Both petitioners/accused were specifically named in the F.I.R. and. they were attributed the fatal shots---Prosecution during the trial was able to prove the story as set out in the F.I.R. so far as the petitioners were concerned---Counsel for petitioners had not been able to refer to any piece of evidence, which, If considered, could persuade the court to interfere with the concurrent findings of guilt---No evidence was led during the trial to the effect that one of the petitioners was a student studying in a school or that he was a minor---Impugned judgments were unexceptionable---Petition for leave to appeal lacking in merit was dismissed.

M. Ozair Chughtai, Advocate-on-Record for Petitioners.

Nemo for Respondent.

SCMR 2008 SUPREME COURT 254 #

2008 S C M R 254

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

TEXTILE QUOTA MANAGEMENT and another----Petitioners

Versus

Messrs A.R.K. GARMENT INDUSTRY (PVT.) LIMITED----Respondents

Civil Petition No.240-K of 2006, decided on 11th July, 2006.

(On appeal from the judgment, dated 20-3-2006 passed by High Court of Sindh Karachi in High Court Appeal No.161 of 2004).

Imports and Exports (Control) Act (XXXIX of 1950)---

----S. 3---S.R.O.166(I)/92, dated 7-3-1992---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to consider whether arbitrator was legally justified in allowing credit for excess export of quota exported by the respondent in addition to the sanctioned quota in the year 1992 on the basis of his performance and whether interpretation of Rules 8 & 9 of the S.R.O. 166(I)/92, dated 7-3-1992 issued under S.3 of Imports and Experts (Control) Act, 1950 could be sustained at law.

Akhtar Ali Mehmood, D.A.-G. and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioners.

Bilal A. Khawaja, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record (absent) for Respondents.

SCMR 2008 SUPREME COURT 255 #

2008 S C M R 255

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Ghulam Rabbani, JJ

ADMINISTRATIVE COMMITTEE OF HIGH COURT OF SINDH through Registrar, High Court of Sindh; Karachi and another----Petitioners

Versus

ARJUN RAM K. TALREJA and another----Respondents

Civil Petition No.560-K of 2006, decided on 22nd December, 2006.

(On appeal from the judgment, dated 10-10-2006 passed by Sindh Subordinate Judiciary Service Tribunal, High Court of Sindh, Karachi, in S.A. No.13 of 2000).

(a) Sindh Service Rules Manual (Revised Edition 2000)---

----Chap. 10, R.171---Date of birth recorded in Service Book of civil servant, change or alteration of---Scope---Not an absolute rule that such entry once made could not be altered or changed---Exceptions and procedure explained.

(b) Sindh Service Rules Manual (Revised Edition 2000)---

----Chap. 10, R.171---Sindh Service Tribunals Act (XV of 1973), S.3-B---Constitution of Pakistan (1973), Art.212(3)---Date of birth recorded in service book of Judicial Officer, change of---Plea of respondent-officer was that actual date of his birth entered in Register of Births of Municipal Committee was 4-11-1948, which, on account of illiteracy of his parents, was mistakenly recorded in School Registers as 24-12-1946; that on realizing such mistake, he, before joining government service in year 1974, got corrected all relevant record of Education Department by producing relevant documents including extract from Register of Births and report of Medical Superintendent certifying his age from physical and X-ray examination, whereafter Chief Minister as competent authority accorded approval to change his date of birth---Refusal of Administrative Committee of High Court to give effect to such orders of Chief Minister---Service Tribunal in appeal after evaluating such documents directed concerned authority to make necessary correction in service record as requested by respondent--Validity---Respondent had long back made a request for correction of his date of birth and on his representation forwarded by High Court, competent authority by issuing notification had accorded approval to change his date of birth---Such Committee without hearing respondent and assigning any reason had declined to change his date of birth in Service Record---Supreme Court upheld decision of Service Tribunal and refused to grant leave to appeal to such Committee.

Government of Balochistan through Secretary S&GAD, Quetta v. Marjun Khan 2003 PLC (C.S.) 245=2003 SCMR 444 ref.

Muhammad Rafiq Rajourvi, Additional Advocate-General Sindh and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioners.

M.M. Aqil Awan, Advocate Supreme Court for Respondent No.1.

SCMR 2008 SUPREME COURT 265 #

2008 S C M R 265

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Falak Sher, JJ

MUHAMMAD FAROOQ----Petitioner

Versus

THE STATE and another----Respondents

Criminal Miscellaneous No.255 of 2007 in Jail Petition No.100 of 2006, decided on 27th October, 2007.

Penal Code (XLV of 1860)---

----Ss. 302, 309, 310, 311 & 338-E---Criminal Procedure Code (V of 1898), S.345---Compromise---Compromise had been effected in the case, when father of the deceased had waived his right while the mother had not---Mother was entitled to Badl-i-Sulh/compensation---Case was not that of Qisas, but that of Ta'zir where the compromise should come from all the legal heirs---Accused was directed to deposit amount as Badl-i-Sulh upto specified date.

M. Zaman Bhatti, Advocate Supreme Court along with Safdar brother for Petitioner.

Shabbir Ahmad Lali, D.P.G. for the State.

SCMR 2008 SUPREME COURT 266 #

2008 S C M R 266

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Raja Fayyaz Ahmad, JJ

MUHAMMAD YOUNAS----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.244 of 2003, decided on 27th March, 2007.

(On appeal from the judgment, dated 18-12-2003 of Peshawar High Court, Peshawar, passed in Criminal Appeal No.39 of 2000).

Penal Code (XLV of 1860)---

----Ss. 302(b) & 324---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Prosecution witness/brother of deceased, who had suffered gunshot wounds had deposed in line with what he had stated in his statement recorded by the police officer---At the relevant time his presence at the place of incident with his deceased brother could not be doubted---Medical evidence lent due corroboration to the testimony of said witness---Presence of said injured prosecution witness with his deceased brother appeared to be quite natural and convincing as both of them suffered gunshot wounds---Discarding the motive part of the prosecution case being not convincing or found not worth credence, would not per se be sufficient to disbelieve the ocular account of the incident given by the injured himself who would, by no probability, let off the real culprit and instead involve one innocent person---Postmortem report of deceased also furnished due corroboration to the testimony of injured witness besides other pieces of circumstantial evidence, such as recovery of blood-stained clothes of the deceased and the injured, site plan, injury sheet prepared in the hospital---Occurrence having taken place just outside the door of the house of accused persons, possibility that the empties were picked up by accused persons or place of occurrence being the busy place, were removed by any passerby could not be ruled out---Supreme Court had found accused guilty on the charge in the light of the evidence correctly appreciated in its true perspective to which no exception could be taken---Petition for leave to appeal was dismissed.

Malik Muhammad Kabir, Advocate Supreme Court for Petitioner.

Muhammad Zaman Bhatti, Advocate Supreme Court for the State.

Date of hearing: 27th March, 2007.

SCMR 2008 SUPREME COURT 269 #

2008 S C M R 269

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J, Muhammad Moosa K. Leghari and Mian Hamid Farooq, JJ

SHAMSHAD KHAN and another----Petitioners

Versus

ARIF ASHRAF KHAN and 2 others---Respondents

Civil Petition No.522 of 2007, decided on 11th December, 2007.

(On appeal from the judgment, dated 30-4-2007 of the Peshawar High Court, Peshawar, passed in Writ Petition No.96 of 2007).

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Ejectment proceedings---Filing of affidavit by tenant of his witnesses---Failure of tenant to produce his witnesses for cross-examination by landlord despite availing several adjournments---Striking off tenant's right of defence by Rent Controller---Validity---Record showed that landlord had not even once objected to any of adjournments of case sought by tenant---All such adjournments would be deemed to be granted with mutual consent of parties---Supreme Court set aside impugned order and provided opportunity to tenant to produce evidence subject to payment of costs of Rs.20,000.

Fateh Sher v. Muhammad Zubair 2003 SCMR 797 and Aftab Ahmad Khan and others v. Mst. Surayah Begum and others PLD 2004 Pesh. 168 ref.

(b) Appeal (Civil)---

----Interim order would merge in final judgment---Party aggrieved of interim order may challenge same while assailing final judgment in appeal.

Gulzarin Kiani, Advocate Supreme Court for Petitioners.

Muhammadullah, Advocate Supreme Court for Respondent No.1.

Nemo for Respondents Nos.2 and 3.

Date of hearing: 11th December, 2007.

SCMR 2008 SUPREME COURT 273 #

2008 S C M R 273

[Supreme Court of Pakistan]

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

Dr. MUHAMMAD SHARIF----Petitioner

Versus

SECRETARY TO GOVERNMENT OF PUNJAB and others----Respondents

Civil Petition No.643-L of 2006, decided on 2nd October, 2006.

(On appeal from the judgment/order, dated 2-3-2006 passed by Punjab Service Tribunal, Lahore in Appeal No.2642 of 2005).

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

----S. 3---Constitution of Pakistan (1973), Art.212(3)---Misconduct---Alleged misconduct was committed by the petitioner in the month of January, 1996, but it was after a period of nine years that competent Authority woke up to commence proceedings against petitioner on the said charge---Proceedings culminated in imposition of impugned punishment in the month of August, 2005 which punishment was to last only for one year---Impugned punishment though not intended to cause any harm beyond one year, had caused a permanent loss in pensionary benefits and that also for no fault of the petitioner---Petition was converted into an appeal and was partly allowed---Impugned punishment awarded to petitioner was set aside and instead a punishment of "Censure" was imposed on him.

Pervez Inayat Malik, Advocate Supreme Court with Tanvir Ahmad, Advocate-on-Record for Petitioner.

M. Akbar Tarar, Additional Advocate-General, Punjab for Respondents (on Court call).

SCMR 2008 SUPREME COURT 275 #

2008 S C M R 275

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Actg. C.J. Saiyed Saeed Ashhad and Hamid Ali Mirza, JJ

AHMED KHAN----Petitioner

Versus

THE STATE----Respondent

Crl.P.L.A. No.10-K of 2007, decided on 14th July, 2007.

Criminal Procedure Code (V of 1898)---

----Ss. 514(4) & 516-A---Constitution of Pakistan (1973), Art.185(3)---Forfeiture of surety bond---Petitioner had executed a surety bond undertaking to produce car in question before the court on each and every date of hearing, but on his failure to do so, his surety bond had been forfeited---Case of petitioner was that car in question was snatched by hardened criminals from his possession for which F.I.R. was lodged; and that despite hectic efforts neither the car had been recovered nor the culprits brought to book; it was on that account that petitioner was unable to produce the car before the Trial Court---Petitioner was genuinely unable to produce the car by reason of robbery thereof only five weeks after the handing over of the same to him by the court on superdari---Nothing was on record that F.I.R. lodged by petitioner regarding snatching of the car by hardened criminals from the possession of petitioner, was false or bogus---Local police had not been able to find out any clue of the car which remained to be untraced---Petitioner, in circumstances, was not in default in the matter of production of the car before the Trial Court---View taken by courts below and endorsed by the High Court seemed to be hypertechnical on the face of record---Law would not punish a person without any criminal intent---Petitioner, who had raised a bona fide defence, could not be said to be wilful and contumacious defaulter in compliance with the terms of the bond---Petition for leave to appeal was converted into appeal and accepting same, Supreme Court set aside impugned order of the High Court as well as that of the courts below.

Ghulam Nabi Soomro, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Petitioner.

Anwar Mansoor Khan, Advocate-General, Sindh for the State.

Date of hearing: 14th July, 2007.

SCMR 2008 SUPREME COURT 277 #

2008 S C M R 277

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Faqir Muhammad Khokhar, JJ

BAQIR ALI---Petitioner

Versus

THE STATE---Respondent

Civil Petition No. 572-L of 2003, decided on 7th July, 2004.

(On appeal from the judgment/order, dated 11-7-2003 passed by Lahore High Court, Lahore in Criminal Appeal No.230 of 2000).

Penal Code (XLV of 1860)---

----Ss. 419/468/34---Prevention of Corruption Act (II of 1947), S.5(2)---Constitution of Pakistan (1973), Art.185 (3)---Reappraisal of evidence---Revenue record---Fraudulent entry---Accused himself had not denied the entry of mutation---Plea raised by him was that he personally did not know the complainant, therefore, on the identification of other co-sharer of the area he entered the disputed mutation entry---Trial Court after considering the evidence produced by prosecution, convicted and sentenced the accused to four years imprisonment---High Court in exercise of appellate jurisdiction maintained the conviction but reduced the sentence to the one already undergone---Validity---Judgment of Trial Court did not suffer from any legal infirmity and High Court had also examined the prosecution case thoroughly and rightly came to the conclusion that the accused was guilty for the commission of offence---High Court had rightly reduced the sentence as the offence was committed in year, 1987 and the judgment was pronounced on 6-3-2000, whereas the appeal was decided on 11-7-2003, during such period accused remained in custody---In such manner considerable relief had already been given to the accused, therefore, no interference was called for by Supreme Court and the judgment of High Court was maintained being unexceptionable---Leave to appeal was refused.

Hasnat Ahmad Khan Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 7th July, 2004.

SCMR 2008 SUPREME COURT 280 #

2008 S C M R 280

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Falak Sher, JJ

Syed MUHAMMAD RASHID AHMAD SHAH and another---Petitioners

Versus

FEDERAL CHIEF LAND COMMISSION and others---Respondents

Civil Miscellaneous Application No.144-L of 2004 with Civil Petition No.1927-L of 2003, decided on 16th June, 2004.

(On appeal from the judgment dated 9-5-2003 passed by the Lahore High Court, Lahore in Writ Petition No.981 of 1999/BWP).

Land Reforms Regulation, 1972 (M.L.R.115)---

----Paras. 7, 12 & 29(b)---Constitution of Pakistan (1973), Arts. 185(3) & 199---Declaration of assets---Gift---Order of Land Commission determining gift as invalid and resuming excess land was challenged by petitioner in revision---Permission to make exchange granted to petitioner by Deputy Land Commissioner was withdrawn---Federal Land Commission accepted appeal of petitioner with condition that exchange would operate on basis of tenanted and non-tenanted land---High Court in Constitutional petition filed against both orders of resumption of land and exchange, permitted only exchange of property---Revision filed against resumption order after 25/26 years was dismissed by Federal Land Commissioner---High Court dismissed Constitutional petition against order passed in revision---Validity---Chapter of gift was closed forever for not seeking further remedy against earlier order of High Court not validating the factum of gift---Petitioner after ignoring resumption order had remained interested in permission to exchange land---When exchange became permissible, then petitioner challenged resumption order, which had become final---Federal Land Commission had rightly dismissed revision as time-barred---Supreme Court dismissed petition and refused leave to appeal.

Ch. Arshad Mahmood, Advocate Supreme Court with Ozair Chughtai, Advocate-on-Record for Petitioners.

Ch. Aamer Rehman, Additional Advocate-General Punjab, with Rao Muhammad Yousaf Khan, Advocate-on-Record for Respondents.

Mubashar Latif Ahmed, Advocate Supreme Court with Mehmood-ul-Islam, Advocate-on-Record for Applicants.

Date of hearing: 16th June, 2004.

SCMR 2008 SUPREME COURT 284 #

2008 S C M R 284

[Supreme Court of Pakistan]

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

Messrs NIDA-E-MILLAT, LAHORE---Petitioner

Versus

COMMISSIONER OF INCOME TAX, ZONE-I, LAHORE----Respondent

Constitutional Petitions Nos.440-L of 2001, decided on 10th July, 2006.

(On appeal from the judgment of the Lahore High Court, dated 2-10-2000 passed in C.T.R. No.23 of 1989).

(a) Income Tax Ordinance (XXXI of 1979)---

----S. 130(2)(3)---Constitution of Pakistan (1973), Art. 185(3)---Appeal to Appellate Authority---Delay of one day---Dismissal of appeal---Application for condoning such delay not made to authority, but made for the first time before Supreme Court---Validity---Limitation would create a right in favour of opposite party---Making of such application before Supreme Court would show that appeal before authority was time-barred, thus, petitioner had an obligation to make application or submit explanation therefore before the Authority---Supreme Court, in exercise of jurisdiction under Art.185(3) of the Constitution, could not condone delay occurring in filing of appeal before Authority---Petitioner had rightly been declined relief---Supreme Court refused leave to appeal in circumstances.

(b) Limitation---

----Delay, condonation of---Limitation would create a right in favour of opposite party---When an appeal or proceedings were time-barred, then duty of person approaching court would be at least to submit application or make explanation in that regard.

Shahbaz Butt, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Petitioner.

M. Ilyas Khan, Senior Advocate Supreme Court and Ch. M. Aslam Chattha, Advocate-on-Record for Respondents.

SCMR 2008 SUPREME COURT 287 #

2008 S C M R 287

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J,. Ijaz-ul-Hassan Khan and Muhammad Moosa K. Leghari, JJ

SECRETARY EDUCATION DEPARTMENT, GOVERNMENT OF N.-W.F.P., PESHAWAR and others----Petitioners

Versus

ASFANDIAR KHAN----Respondent

Civil Petition No.567-P of 2007, decided on.26th November, 2007.

(On appeal from the judgment, dated 10-9-2007 of the Peshawar High Court, Peshawar, passed in Civil Revision No.649 of 2007).

Civil Procedure Code (V of 1908)---

----O. IX, R.13---Limitation Act (IX of 1908), Art.164---Constitution of Pakistan (1973), Art.185(3)---Ex parte decree, setting aside of---Limitation---Knowledge of proceedings---Concurrent findings of facts by the courts below---Defendants, after participating in proceedings absented themselves with the result that suit was decreed ex parse---Trial Court dismissed application for setting aside of ex parte decree as it was filed 15 months after the decree---Order passed by Trial Court was maintained by Lower Appellate Court as well as by High Court---Plea raised by defendants was that period of limitation for filing of application for setting aside ex parte decree in such case was three years and not 30 days---Validity---As it was within the knowledge of defendants that suit was pending against them and were declared ex parte, as such Art.164 of Limitation Act, 1908, was applicable, whereby period to move application for condonation of delay was 30 days---Supreme Court did not find any reason to interfere with the concurrent findings of the courts below---Leave to appeal was refused.

Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen 2006 SCMR 631 rel.

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

Nemo for respondent.

SCMR 2008 SUPREME COURT 290 #

2008 S C M R 290

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Tassaduq Hussain Jillani, JJ

AMANAT ALI alias BABU----Petitioner

Versus

Mst. SHABBIRAN BIBI and others----Respondents

Civil Petition No.2347-L of 2000, decided on 28th December, 2004.

(On appeal from the judgment, dated 21-6-2000 of the Lahore High Court, Lahore passed in C.M. No.734 of 2000).

Constitution of Pakistan (1973)---

----Art. 185(3)---Intra-Court appeal pending before High Court was dismissed and application filed for restoration of said Intra Court appeal was also dismissed by High Court being without merits---High Court declined to exercise jurisdiction for the reason that no good ground had been shown for restoration of appeal---Supreme Court, in circumstances, declined to substitute order of High Court by expressing its opinion contrary to what had been expressed by High Court as same was passed with jurisdiction and same neither suffered from any illegality nor involved any question of law of public importance---Petition for leave to appeal was dismissed.

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

Nemo for Respondents.

Date of hearing: 28th October, 2004.

SCMR 2008 SUPREME COURT 291 #

2008 S C M R 291

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

Mirza NAZIM BAIG---Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Chief Secretary and others--Respondents

Civil Petition No.3289-L of 2003, decided on 5th August, 2004.

(On appeal from order dated 17-11-2003 of the Lahore High Court, Lahore, passed in W.P. No.5570 of 2001).

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

----Ss. 19 & 24---Transfer of tenancy rights by way of gift claimed by brother of deceased tenant---Validity---Period of tenancy had already expired---Deceased tenant had neither paid 1/4th lease money in time nor cultivated land---Deceased tenant had other brothers and sisters, who had not come forward with such claim---Deceased tenant without written permission of competent authority could not transfer any right or interest in State land---Such transferee not being a lessee or tenant could not take benefit of S.24 of Colonization of Government Lands (Punjab) Act, 1912---Claim of transferee, held was, not maintainable.

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

----S. 24---Person neither a lessee nor tenant could not take benefit of S.24 of Colonization of Government Lands (Punjab) Act, 1912.

Sardar Shahid Iqbal, Advocate Supreme Court and Sh. Masood Akhtar, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 5th August, 2004.

SCMR 2008 SUPREME COURT 293 #

2008 S C M R 293

[Supreme Court of Pakistan]

Present Iftikhar Muhammad Chaudhry, C. J., Abdul Hameed Dogar and Saiyed Saeed Ashhad, JJ

COMMISSIONER OF INCOME TAX AND WEALTH TAX----Appellant

Versus

Messrs USMAN GHEE INDUSTRIES (PVT.) LTD. and others----Respondents

Civil Appeals Nos.1344 of 2003 and 1367-1370 of 2003, decided on 27th April, 2006.

(On appeal from the judgment, dated 26-7-2001 passed by Peshawar High Court, Peshawar in TR No. 33/1997 and F.A.O. Nos.24, 26 and 27 of 1997 and F.A.O. 192 of 1999).

Income Tax Ordinance (XXXI of 1979)---

----S. 12(18)---Central Board of Revenue's Circular Nos. 3, 11, 12 of 1992 and Circular No.1 of 1993---`Loan'---Scope---Word "cash" not expressly used in substantive law---Not cash transactions, but only amounts received through crossed cheques or any other banking channel would be considered a loan for purpose of S. 12(18) of Income Tax Ordinance, 1979.

Malik Muhammad Nawaz, Advocate Supreme Court, Raja Abdul Ghafoor, Advocate-on-Record and Mumtaz Ahmed Member (Legal) C.B.R. for Appellants.

M.S. Khattak, Advocate-on-Record for Respondents.

SCMR 2008 SUPREME COURT 296 #

2008 S C M R 296

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

GHULAM RASOOL through L.Rs. and others---Petitioners

Versus

Haji MUHAMMAD SHARIF through L.Rs. and others---Respondents

Civil Petition No.710-L of 2000, decided on 2nd August, 2004

(On appeal from the judgment dated 3-3-2000 passed by the Lahore High Court, Multan Bench, Multan in R.S.A. No.816 of 1976).

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

---Art. 114---Estoppel---Mere presence of a person at the time of marking would not constitute estoppel.

(b) Pre-emption---

----Right of---Not a right in property, but a vested statutory right.

Baqri and 4 others v. Salehon and 3 others PLD 1972 SC 133 fol.

---Waiver---Failure of a person entitled to pre-empt to outbid purchaser would not amount to waiver.

Baqri and 4 others v. Salehon and 3 others PLD 1972 SC 133 fol.

(d) Punjab Pre-emption Act (I of 1913)---

---S. 15---Constitution of Pakistan (1973), Art.185(3)---Pre-emption suit---Evidence qua plaintiff's ownership in estate led at belated stage---Defendant neither objected to such evidence at relevant time nor raised objection in grounds of appeal before High Court---Validity---Defendant could not raise such objection before Supreme Court.

PLD 1992 Lah. 92 and 1993 CLC 1580 ref.

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioners.

Talib H. Rizvi, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Respondents.

Date of hearing: 2nd August, 2004.

SCMR 2008 SUPREME COURT 299 #

2008 S C M R 299

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Actg. C.J. Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

RIASAT ALI and others----Petitioners

Versus

GHULAM RASOOL and others----Respondents

C.M.A. No.1605-L of 2004 and Civil Petition No.1306-L of 2004, decided on 26th January, 2005.

(On appeal from the judgment, dated 13-1-2004 passed by Lahore High Court, Lahore in Review Petition No.30/C of 2004 and R.S.A. No.298 of 1984).

Islamic Law---

----Inheritance---High Court in its judgment had held that a female descendant of a common ancestor was not a residuary and did not find any mention in table of residuaries---Findings of High Court were according to Islamic Law and petitioner could not say anything against said findings---Petition for leave to appeal was declined---Constitution of Pakistan (1973), Art.185(3).

Muhammadan Law by Mulla ref.

Ch. Muhammad Rafique Warriach, Advocate Supreme Court and Mian Atta-ur-Rehman, Advocate-on-Record for Applicants.

Ch. M. Hussain Naqshbandi, Advocate-on-Record for Respondents.

Date of hearing: 26th January, 2005.

SCMR 2008 SUPREME COURT 300 #

2008 S C M R 300

[Supreme Court of Pakistan]

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

Haji MUHAMMAD LATIF----Petitioner

Versus

MUHAMMAD WAHEED alias YASIR and another----Respondents

Criminal Petition No.727-L of 2003, decided on 17th October, 2005.

(On appeal from the judgments, dated 2-10-2003 of the Lahore High Court, Lahore passed in Criminal Appeal No.940 of 1998 and Murder Reference No.447 of 1998).

Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to consider, inter alia, whether the accused, who appeared to be a desperado, standing in the "Chowks" at night, carrying fire-arms and got flared up to the extent of causing death of others on trivial matters and for petty reasons, would deserve any mercy or leniency, and whether the factum of non-repetition of the blow which used to be treated as a mitigating circumstance in the by-gone days, when the weapons used were "Dangs" and "Sotas", would be a valid consideration even today when the weapons used are automatic and semi-automatic guns and rifles.

Rafique Javed Butt, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 17th October, 2005.

SCMR 2008 SUPREME COURT 308 #

2008 S C M R 308

[Supreme Court of Pakistan]

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

DEPUTY COMMISSIONER OF INCOME TAX/WEALTH TAX, FAISALABAD and others----Petitioners

Versus

Messrs PUNJAB BEVERAGE COMPANY (PVT.) LTD.----Respondent

Civil Petitions Nos.956-L and 957-L of 2003, heard on 12th July, 2006.

(On appeal from the Order dated 24-2-2003 passed by the Lahore High Court, Lahore in Writ Petitions Nos.4408 and 4360 of 2002).

Income Tax Ordinance (XXXI of 1979)---

----S. 66A---Constitution of Pakistan (1973), Art.199---Show-cause notice under S.66A of Income Tax Ordinance, 1979 asking petitioner as to why proposed action be not taken against him---Constitutional petition by petitioner challenging same accepted by High Court---Validity---Tendency of bypassing remedy provided under law and resort to constitutional jurisdiction of High Court was deprecated---Petitioner had wrongly availed remedy of High Court instead of availing appropriate remedy under Income Tax Ordinance, 1979---Merely for purpose of convenience, availing remedy under Art.199 of Constitution could not be appreciated---Supreme Court accepted appeal and set aside impugned judgment.

Al-Ahram Builders (Pvt.) Ltd. v. Income Tax Appellate Tribunal 1993 SCMR 29 fol.

Muhammad Ilyas Khan, Advocate Supreme Court and Ch. Muhammad Aslam Chatha, Advocate-on-Record for Petitioners.

Siraj-ud-Din Khalid, Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record for Respondent.

SCMR 2008 SUPREME COURT 310 #

2008 S C M R 310

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

Rana GHULAM RASUL KHAN---Petitioner

Versus

WASIM GUL, Proprietor Messrs Moon Enterprises and others---Respondents

C. P. L. A. No.1245-L of 2004, decided on 26th August, 2004.

(On appeal from judgment of Lahore High Court, Lahore dated 26-2-2004 passed in R.S.A. No.54 of 2003).

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

----S. 100---Finding of fact---Interference in second appeal---Scope is always limited---High Court can interfere with such findings on question of law or error of jurisdiction.

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

----S. 100 & O. XX, R. 15---Constitution of Pakistan (1973), Art.185(3)---Suit for rendition of partnership accounts---Preliminary decree of trial Court was upheld by Appellate Court---High Court in second appeal upon reappraisal of evidence disturbed concurrent findings of fact and dismissed suit---Plaintiff's plea was that contrary view taken by High Court suffered from misreading of evidence and misconstruction of principles of law; and that allegations of fact levelled by him and supported by his witness had not been rebutted by defendant by entering into witness-box---Supreme Court granted leave to appeal to consider as to whether High Court was legally entitled and justified in disturbing findings of fact and committed an error of law by reappraising evidence and taking a contrary view.

Chaudhry Riyasat Ali, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 26th August, 2004.

SCMR 2008 SUPREME COURT 312 #

2008 S C M R 312

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

ELAHI BAKHSH and others----Petitioners

Versus

MUHAMMAD SIDDIQUE and others----Respondents

Civil Petitions Nos. 1188-L and 1189-L of 2002, decided on 14th June, 2004.

(On appeal from the judgment, dated 22-10-2001 of the Lahore High Court, Bahawalpur Bench, passed in R.S.A. No.22 of 1988 and Civil Revision No.42-D of 1988).

Pakistan (Administration of Evacuee Property) Act (XII of 1957)---

----S. 22(41)---Specific Relief Act (I of 1877), Ss. 8 & 42---Constitution of Pakistan (1973), Art.185(3)---Suits for possession and declaration---Non-evacuee nature of property---Determination of---Respondent in suit for possession claimed that he had purchased property in dispute through public auction held by Settlement Department and P.T.D. had been issued in his favour, whereas petitioner in his suit for declaration had claimed that property was a non-evacuee and Settlement Department had no jurisdiction to transfer the same to respondent---Both Trial Court and Appellate Court dismissed suit of respondent and decreed suit for declaration filed by petitioner, but High Court reversed concurrent findings of Courts below and decreed suit of respondent---Suit property had always been treated to be an evacuee property, which was duly purchased by respondent from Settlement Department---Question as to property being declared non-evacuee, could not be gone into by Civil Court in absence of any exceptional circumstances as such power was exercisable by Custodian/Deputy Custodian in terms of S.22(41) of Pakistan (Administration of Evacuee Property) Act, 1957 at relevant time---Presumption of correctness was attached to official acts---High Court, in circumstances was justified in interfering with the findings as recorded by two Courts below---Ordinarily, Supreme Court was not expected to substitute its findings of fact for those of High Court unless those suffered from misreading or non-reading of evidence or same were violative of any principle of law---Impugned judgment did not suffer from any legal infirmity so as to warrant interference by Supreme Court---Case being not fit for grant of leave to appeal, petition was dismissed, in circumstances.

Azizuddin v. Muhammad Ismail and others 1985 SCMR 666 ref.

Shamsher Iqbal Chughtai, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 14th June, 2004.

SCMR 2008 SUPREME COURT 314 #

2008 S C M R 314

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Muhammad Moosa K. Leghari, JJ

Syed ARSHAD ALI and others----Petitioners

Versus

PAKISTAN TELECOMMUNICATION COMPANY LTD. and others----Respondents

Civil Petition No.903 of 2007, decided on 30th November, 2007.

(On appeal from the judgment and order of the High Court of Sindh, Karachi, dated 18-9-2007 passed in C.P. No.D-2086 of 2006).

Industrial Relations Ordinance (XCI of 2002)---

----S. 46(5)---Constitution of Pakistan (1973), Arts.199, 212 & 185(3)---Termination of service---Daily wages employees---Constitutional jurisdiction of High Court---Scope---Petitioners being employees on daily wages, claimed protection of their service on the basis of 5-6 years service and had assailed their termination orders before High Court in its constitutional jurisdiction---High Court dismissed petitions filed by petitioners---Validity---If right had been conferred by a statute and complete mechanism was provided for enforcement thereof in that Statute there could be no occasion to invoke applicability of fundamental rights---Jurisdiction of High Court was barred under Art.212 of the Constitution, as specific forum was provided for redressal of grievance of petitioners, even if order proposed to be challenged might have been passed in whatsoever circumstances viz. mala fide, coram non judice or without jurisdiction---Constitutional jurisdiction could not be exercised by High Court where equally efficacious remedy was available---Petitioners being workmen and having been employed by a Corporation, their remedy would lie before Labour Court under Industrial Relations Ordinance, 2002---Leave to appeal was refused.

I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 fol.

M.A. Ghani Chaudhry, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 30th November, 2007.

SCMR 2008 SUPREME COURT 317 #

2008 S C M R 317

[Supreme Court of Pakistan]

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

ASGHAR ALI ASGHAR and others----Petitioners

Versus

FEDERATION OF PAKISTAN and others----Respondents

Criminal Original No.7 of 2003 in Constitutional Petition Niv.40 of 1999, decided on 29th December, 2005.

(On appeal from the judgment, dated 26-9-2003 passed by this Court in Constitutional Petition No.40 of 1999).

Constitution of Pakistan (1973)---

----Art. 204---Contempt of Court Act (LXIV of 1976), Ss.3/4---Contempt of Court---Supreme Court had not given any positive directions to the respondents for upgradation of posts of Sepoy, Hawaldar and Inspector from BPS-2 to 5, 3 to 7 and 11 to 16 respectively---Object of the directions was to examine the case of 'the categories of the petitioners, in order to improve their service conditions---Posts of petitioners had already been upgraded by the Federal Government---Pay scales of the employees of the Central Board of Revenue had also been further revised on the report of the Pay and Pension Committee and the matter for grant of some other fringe benefits to them was also under consideration---Contempt proceedings, could not be taken against the respondents in circumstances---Contempt petition was dismissed accordingly.

Habib-ul-Wahab-ul-Khairi, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioners.

Mrs. Naheeda Mehboob Elahi, Dy. A.-G. along with Mumtaz Sheikh, Member (Legal), C.B.R. Muhammad Saleem Saleemi, Dy. Secretary, Aurangzeb, Dy. Secretary, Ali Sher, S.O. (Finance) and M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 29th December, 2005.

SCMR 2008 SUPREME COURT 319 #

2008 S C M R 319

[Supreme Court of Pakistan]

Present: Javed Iqbal and Faqir Muhammad Khokhar, JJ

Mian JAVED SALEEM----Petitioner

Versus

M.C.B. and others----Respondents

Criminal Petition No.670-L of 2002, decided on 18th July, 2005.

(On appeal from order, dated 13-6-2002 of the Lahore High Court, Lahore, passed in Criminal Revision No.501 of 2002).

Penal Code (XLV of 1860)---

----Ss. 192 & 193---Constitution of Pakistan (1973), Art.185(3)---Initiation of criminal proceedings against the respondents/judgment debtors was refused by the Courts below---Validity---Petitioner had failed to produce any credible evidence showing that the property in question belonged to him---No evidence worth the name could be produced to substantiate the alleged fraud committed by the respondents in getting the said property allotted to them---Initiation of criminal proceedings could hardly render any assistance in such-like cases as the ultimate fate would depend upon evidence, which was lacking in the case---Courts below had categorically determined that the respondents being owners of the property in question could mortgage the same---Concurrent findings of fact recorded by the Courts below regarding the factum of ownership of the property could not be reversed without concrete reasoning and lawful justification---No illegality or perversity could be pointed out in the impugned judgment---Leave to appeal was refused in circumstances.

Nawab Saeed Ullah Khan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Petitioner.

Nemo for Respondents.

Date of hearing: 18th July, 2005.

SCMR 2008 SUPREME COURT 322 #

2008 S C M R 322

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Falak Sher, JJ

ZAHOOR---Petitioner

Versus

ELECTION TRIBUNAL, VEHARI and others---Respondents

Civil Petition No.2988-L of 2003, decided on 9th July, 2004.

(On appeal from the judgment dated 21-11-2003 in W.P. No.5071 of 2003 passed by the Lahore High Court, Lahore).

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

----O. XVII, R.3---Qanun-e-Shahadat (10 of 1984), Art.133---Constitution of Pakistan (1973), Arts.185(3) & 199---Closing right of adverse party to cross-examine witnesses after refusing to him adjournment sought on ground of ailment of his counsel---Validity---Date on which evidence had been recorded was fixed for such purpose, about which adverse party had knowledge---Time had been granted to adverse party to fetch his counsel or engage a new counsel, for which purpose case had been kept pending from 8-00 a.m. to 3-00 p.m.---Statements of witnesses had been recorded in presence of newly appointed counsel, who had not availed opportunity provided to him to cross-examine witnesses---One witness had been summoned from Karachi---Adjournment could not be claimed as of right---Trial Court/Tribunal had discretion to grant or refuse adjournment---Adverse party had availed 35 adjournments on one pretext or the other---Constitutional jurisdiction of High Court could be exercised in a case, where subordinate Court/Tribunal exceeded its jurisdiction or acted without jurisdiction---Refusal of adjournment by Trial Court was not illegal or capricious---High Court rightly dismissed Constitutional petition in circumstances.

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

----O. XVII, Rr.1 & 3---Adjournment, grant or refusal of---Adjournment cannot be claimed as of right and the Trial Court has the' discretion to grant or refuse it.

---Art. 199---Constitutional jurisdiction of High Court---Scope---Such jurisdiction could be exercised in a case, where subordinate Court/Tribunal exceeded its jurisdiction or acted without jurisdiction.

Ch. Riyasat Ali, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Petitioner.

Tallat Farooq Sheikh, Senior Advocate Supreme Court and Haji Rafi Siddiqui, Advocate-on-Record for Respondents.

Date of hearing: 9th July, 2004.

SCMR 2008 SUPREME COURT 324 #

2008 S C M R 324

[Supreme Court of Pakistan]

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

NOOR SADA KHAN----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.314 of 2005, decided on 3rd July, 2006.

(On appeal from the judgment, dated 17-5-2005 of the Peshawar High Court, Peshawar passed in J. Criminal Appeal No.764 of 2003).

Penal Code (XLV of 1860)---

----Ss. 302/149, 120-B & 201---Constitution of Pakistan (1973), Art.185(3)---Judicial confession made by accused in detail had provided all the links and had led to only conclusion that the same was voluntary---Prosecution witnesses of last seen evidence having no prior enmity or ill-will towards the accused to suggest his false implication, had made consistent statements which inspired confidence---Mere relationship of the said witnesses with the deceased was of no consequence---Deceased had left his house in the company of accused and three co-accused---Dead body had been properly identified by the prosecution witnesses from his stature, clothes and other belongings---Confessional statement of accused was corroborated by last-seen evidence and also by the recovery of the dead body of the deceased at the pointation of accused from his field---Impugned judgment did not suffer from any legal infirmity---Leave to appeal was declined to accused accordingly.

F.K. Butt, Advocate Supreme Court for Petitioner.

M. Bilal, Senior Advocate Supreme Court for Respondent.

SCMR 2008 SUPREME COURT 329 #

2008 S C M R 329

[Supreme Court of Pakistan]

Present: Falak Sher, Mian Shakirullah Jan and Tassaduq Hussain Jillani, JJ

MUHAMMAD SHAFI----Petitioner

Versus

MUHAMMAD RAZA and another----Respondents

Criminal Petition for Leave to Appeal No.822-L of 2002, decided on 21st June, 2005.

(On appeal from the judgment, dated 25-9-2002 of the Lahore High Court, Lahore, passed in Criminal Appeal No.1013 of 1998 and Murder Reference No.346 of 1998).

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---Murder admittedly was a blind one and the prosecution case hinged on various elements of circumstantial evidence---Judicial confession of accused had been recorded after more than eleven months of the occurrence, although he was not stated to be an absconder and the same even had been retracted---Medical evidence did not support the version given by the accused in his judicial confession---Magistrate had not recorded the confessional statement of the accused in accord with the High Court Rules and Orders and had made material omissions while recording the same---Accused, after his acquittal, had earned a double presumption of innocence, for rebuttal of which heavy onus lay on the prosecution, but it had failed to discharge the same---Finding of acquittal of accused recorded by High Court was neither arbitrary nor capricious---Leave to appeal was refused to complainant by Supreme Court in circumstances.

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

----S. 164---Concession---Retracted judicial confession---Conviction can be based on retracted judicial confession provided it is corroborated by independent circumstantial evidence.

----S. 417---Constitution of Pakistan (1973), Arts.185(3) & 203-F(2B)-Appeal against acquittal---Extent and scope---Accused is presumed to be innocent in law and if after regular trial he is acquitted he earns a double presumption of innocence and heavy onus lies on the prosecution to rebut such presumption.

Muhammad Mujahid Ahmad, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Petitioner.

M. Ozair Chughtai, Advocate-on-Record with Rab Nawaz Khan Niazi, Advocate Supreme Court for Respondents.

Date of hearing: 21st June, 2005.

SCMR 2008 SUPREME COURT 332 #

2008 S C M R 332

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

SUBA and others---Petitioners

Versus

ABDUL AZIZ and others---Respondents

Civil Petition No.1909-L of 2003, decided on 5th August, 2004.

(On appeal from judgment dated 20-6-2003, passed by the Lahore High Court, Lahore in R.S.A. No.5 of 1999).

Civil Procedure Code (V of 1908)---

----O. XLI, Rr.22 & 23---Non-filing of cross-objection or cross-appeal by respondent---Effect---Both parties would be equally entitled to re-agitate against findings of Trial Court on all issues---Appellate Court could not preclude respondent from addressing arguments as to correctness of finding of Trial Court on other issues merely on account of non-filing of cross-objection or cross-appeal---Beneficial provisions of O.XLI, R.23, C.P.C. could be invoked to do complete justice or prevent ends of justice from being defeated and to adjust rights of parties in accordance with justice, equity and good consciousness.

Mst. Jamila Begum v. Awam-un-Nass and 15 others PLD 1978 Lah. 1376 ref.

Abdul Haque and others v. Shaukat Ali and 2 others 2003 SCMR 74; Province of Punjab through Collector, Rajanpur District and 2 others v. Muhammad Akram and 2 others 1998 SCMR 2306 and Salahud-Din Butt and others v. Punjab Service Tribunal and others PLD 1989 SC 597 fol.

Ch. Ihsanul Haq Bhalli, Advocate Supreme Court for Petitioners.

Sh. Khizar Hayat, Advocate Supreme Court for Respondents.

Date of hearing: 5th August, 2004.

SCMR 2008 SUPREME COURT 335 #

2008 S C M R 335

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

ABDUL MAJID and another----Petitioners

Versus

MUHAMMAD HANIF----Respondent

Civil Petition No.2763-L of 2002, decided on 25th August, 2004

(On appeal from the judgment of Lahore High Court, Lahore, dated 18-4-2002 passed in Civil Revision No.1556 of 1996).

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

----Ss. 6 & 13---Constitution of Pakistan (1973), Art. 185(3)---Suit for pre-emption---Petitioner had contended that suit for pre-emption filed by respondent neither being maintainable under law nor being within time, plaint was liable to rejection which 'aspect was not taken into consideration by High Court while allowing civil revision---Since High Court had remanded suit to Trial Court to decide same in accordance with law, it would be proper that such questions touching the merits of claim, should be urged before Court of ultimate jurisdiction which would duly consider and determine same on merits, strictly in accordance with law.

Ch. Irshad Ullah Chattha, Advocate Supreme Court and Walayat Umer, Advocate-on-Record for Petitioners.

Nemo for the State.

Date of hearing: 25th August, 2004.

SCMR 2008 SUPREME COURT 341 #

2008 S C M R 341

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Actg. C.J. Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

LAHORE DEVELOPMENT AUTHORITY through Director-General and others----Petitioners

Versus

Mrs. MALKA DURANI and others----Respondents

C.M.As. Nos.1602-L to 1604-L of 2004 and Civil Petitions Nos.1171-L, 1172-L and 1177-L of 2004, decided on 26th January, 2005.

(On appeal from the judgment/order of the Lahore High Court, Lahore, dated 12-1-2004 in Civil Revisions Nos.2272, 2274 and 2273 of 2003).

Constitution of Pakistan (1973)---

----Art. 185(3)---High Court, after pointing out defects in the judgment of Appellate Court, remanded case for fresh decision---Next date of hearing had been fixed for arguments---No question of law was involved calling for interference in exercise of jurisdiction under S. 185(3) of the Constitution---Petition was dismissed and leave declined---Appellate Court below was directed to dispose of appeal expeditiously without causing further delay in the decision.

Muhammad Rashid Ahmad, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioners (in all cases).

Mian Khalid Rashid, Advocate Supreme Court and Atta-ur-Rehman, Advocate-on-Record for Respondents (in all cases).

Date of hearing: 26th January, 2005.

SCMR 2008 SUPREME COURT 343 #

2008 S C M R 343

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

MUHAMMAD BOOTA---Petitioner

Versus

Mst. RASHIDAN BIBI and others---Respondents

Civil Petition No.1201-L of 2002, decided on 2nd August, 2004.

(On appeal from the judgment dated 20-2-2002 of the Lahore High Court, Lahore, passed in C.R. No.88-D of 1997).

(a) Islamic law---

----Gift---Gift mutation in favour of son by father of 80 years age---Delivery of possession---Proof---Gift mutation did not indicate delivery of possession of suit-land by donor in favour of donee---Copy of daily report maintained by Halqa Patwari for making entry of alleged transaction of gift was not produced by donee in support of his plea of delivery of possession of suit-land---Injunctive order of High Court was in field at the relevant time restraining change of possession of suit-land on account of consolidation operations in village---Question of delivery of possession of suit-land, thus, would not arise---Delivery of possession of suit-land by donor in favour of donee being essential ingredient of gift was, not proved at all.

Noor Muhammad Khan and 3 others v. Habibullah Khan and 27 others PLD 1994 SC 650 and Fakhur-ud-Din v. Mst. Zohra Bi 1998 SCMR 2017 ref.

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

----Art. 185---Appeal to Supreme Court---Scope---Supreme Court ordinarily would not substitute its findings for those recorded by High Court in absence of any exceptional circumstances.

----Inheritance---Common practice prevailing in rural areas to deprive female legal heirs of their due share of properties of their parents by various devices---Supreme Court deprecated such practice.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 fol.

C.M. Latif Rawan, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 2nd August, 2004.

SCMR 2008 SUPREME COURT 345 #

2008 S C M R 345

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ

MUHAMMAD HUSSAIN----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.299 of 2006, decided on 25th July, 2007.

(On appeal from the judgment, dated 5-6-2006 of the Lahore High Court, Lahore, passed in Criminal Appeal No.9-J of 2002 and Murder Reference No.195 of 2001).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence--- Principle of consistency---Applicability--- Motive---Conviction on capital charge---Principles---Only one fire arm injury was attributed to accused but according to post-mortem report there was another injury caused to deceased by blunt weapon---Trial Court convicted accused and awarded him death penalty but High Court altered the sentence to imprisonment for life---Validity---Complainant party failed to establish charge against co-accused by any solid evidence, thus accused should have been equally treated---Manner of commission of incidence on the face of record was neither natural nor probable and motive was also not proved by prosecution---Trial Court as well as High Court suffered from misconstruction of evidence and wrongly passed conviction which could not sustain in law---In order to sustain conviction on capital charge, evidence must come from independent and unimpeachable source rather than from tainted and inimical witnesses without any independent corroboration---Supreme Court converted petition for leave to appeal into appeal and set aside conviction and sentence awarded to accused---Appeal was allowed.

Sardar Muhammad Siddique Khan, Advocate Supreme Court for Petitioner.

Ch. Munir Sadiq, Deputy Prosecutor-General, Punjab for the State.

Date of hearing: 25th July, 2007.

SCMR 2008 SUPREME COURT 350 #

2008 S C M R 350

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Faqir Muhammad Khokhar, JJ

MUHAMMAD SARWAR and others---Petitioners

Versus

KHUSHI MUHAMMAD and another---Respondents

Civil Petitions Nos.2369 and 2414-L of 2000, decided on 24th June, 2004.

(On appeal from the judgment dated 23-6-2000, passed by the Lahore High Court, Lahore, in Civil Revisions Nos.2033 and 2034 of 1990).

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

----O. XLI, R.23---Constitution of Pakistan (1973), Art. 185(3)---Remand of case---Two different sale deeds in respect of same property---Two suits challenging each sale-deed---Trial Court without consolidating both suits decreed them on basis of evidence recorded in one case---Appellate Court accepted appeals filed by defendant and remanded case to Trial Court---Validity---In absence of any exceptional circumstances, evidence recorded in one case might not hold good for the other case---Trial Court had not given any special reason as to why recording evidence in both cases was not practicable or convenient---Impugned judgment did not suffer from legal infirmity---Supreme Court dismissed petition and refused leave to appeal.

Harinarian Choudhary and others v. Ram Asish Singh and others AIR 1957 Pat. 124; Nur Elahi v. The State PLD 1966 SC 708; Shabbir and others v. Mst. Ghulam Fatima 1987 CLC 1407 and Muhammad Younis v. The Crown PLD 1953 Lab. 321 ref.

(b) Evidence---

----In absence of any exceptional circumstances, evidence recorded in one case may not hold good for the other case.

Manzoor Hussain Basra, Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-Record for Petitioners (in both cases).

M.A. Qureshi, Advocate-on-Record for respondents.

Date of hearing: 24th June, 2004.

SCMR 2008 SUPREME COURT 352 #

2008 S C M R 352

[Supreme Court of Pakistan]

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

SHAH NAWAZ through L.Rs.---Petitioners

Versus

ABDUL GHAFOOR and others---Respondents

Civil Petition No.3911-K of 2001, decided on 19th July, 2004.

(On appeal from the judgment/order dated 16-11-2001 passed by Lahore High Court, Multan Bench in R.S.A. No.60 of 1984).

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

----Ss. 3 & 54---Registration Act (XVI of 1908), S.18---Notice of registered agreement to sell---Presumption---In absence of application of Transfer of Property Act, 1882, registration of agreement to sell was not necessary, thus, no one could presume about its execution between parties.

Muhammad Sharif and others v. Muhammad Shafi and others PLD 1956 (W.P.) Lah. 675 fol.

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

----Ss. 3 & 54---Notice of registered sale-deed executed in Punjab---Presumption---Transfer of Property Act, 1882 being not applicable, thus, no one was obliged to know under the law about registration of sale-deed.

Muhammad Sharif and others PLD v. Muhammad Shafi and others 1956 (W. P.) Lah. 675 fol.

----Ss. 12 & 27(b)---Transfer of Property Act (IV of 1882), S.3---Suit for specific performance of agreement to sell---Subsequent vendee claiming to be bona fide purchaser denied to have notice of agreement to sell between plaintiff and vendor---Plaintiff neither in plaint nor in evidence alleged that subsequent vendee had knowledge about sale of property---Held: Subsequent vendee had no obligation to take precautionary measures before entering into sale agreement---Subsequent vendee was bona fide purchaser for value without having notice about such agreement.

Zafar Iqbal Chaudhry, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioners.

Ch. Sardar Ali, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate-on-Record for Respondents.

Date of hearing: 19th July, 2004.

SCMR 2008 SUPREME COURT 356 #

2008 S C M R 356

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Nasir-ul-Mulk, JJ

Messrs MAXIM ADVERTISING COMPANY (PVT.) LTD.----Petitioner

Versus

PROVINCE OF SINDH through Secretary Local Government, Karachi and others----Respondents

Civil Petition No.586-K of 2005, decided on 29th August, 2005.

(On appeal from the judgment, dated 2-8-2005 in C.M.A. 1189 of 2005 passed by the High Court of Sindh, Karachi).

Constitution of Pakistan (1973)---

----Art. 185---Interlocutory order of High Court---Interference by Supreme Court---Scope---Supreme Court would not interfere with such order, unless same was illegal, fanciful, arbitrary, capricious or against settled proposition of law.

Ramzan Sugar Mills Ltd. and others v. Mian Miraj-ud-Din and others 1994 SCMR 2281 and Habib Bank Ltd. and others v. Syed Zia-ul-Hassan Kazmi 1998 SCMR 60 fol.

AIR 1969 SC 1081; AIR 1996 Delhi 343; AIR 1980 Cal. 7; SBLR 2001 K. 661; AIR 1991 SC 101; 2007 YLR 1107 and AIR 1994 All. 243 ref.

Dr. Farogh Naseem, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.

Manzoor Ahmad, Advocate Supreme Court for Respondents Nos. 1 and 2.

Malik M. Qayyum, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.3.

Syed Iftikhar Shah, Advocate Supreme Court for Respondent No.4.

Nemo for Respondent No.5.

SCMR 2008 SUPREME COURT 358 #

2008 S C M R 358

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

KHUSHI MUHAMMAD---Petitioner

Versus

MEMBER, BOARD OF REVENUE and others---Respondents

C.P.L.A. No.3829-L of 2002, decided on 26th August, 2004.

(On appeal from judgment of Lahore High Court, Lahore, dated 18-9-2002 passed in C.M.A. No.1 of 2002 in W.P. No.9010 of 1996).

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

----Art. 199---Civil Procedure Code (V of 1908), O.IX, R.9 & O.XLI, R.19---Limitation Act (IX of 1908), Arts.163 & 168---Restoration of Constitutional petition dismissed for non-prosecution---Limitation---Ordinarily application for restoration would lie within a period of 30 days as in the case of a suit or appeal---Provisions of C.P.C., could be attracted to such case---Valuable rights accrued to opposite party by dismissal of Constitutional petition, thus, no indefinite period could be allowed in such case.

(b) Administration of justice---

----Judicial orders---Finality is attached to judicial orders, which cannot be disturbed at the whim of a party, who is' grossly negligent in prosecution of his remedy.

Khalid Ikram Khatana, Advocate Supreme Court for Petitioner.

Nemo for respondents.

Date of hearing: 26th August, 2004.

SCMR 2008 SUPREME COURT 360 #

2008 S C M R 360

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Falak Sher, JJ

Mst. NOOR KHATOON through L.Rs.---Petitioners

Versus

KABIR KHAN and 2 others---Respondents

Civil Petition No.2643-L of 2002, decided on 30th June, 2004.

(On appeal from the judgment dated 14-5-2002 of the Lahore High Court, Multan Bench passed in R.S.A. No.134 of 1987).

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

----S. 54---Registration Act (XVI of 1908), Ss.17 & 49---West Pakistan Land Revenue Act (XVII of 1967), S.42---Sale of agricultural land through mutation sanctioned in April, 1974 on the basis of statements of sellers made before Patwari and Revenue Officer---Validity---Such oral sale would not be affected by Notification of Government of Punjab dated 30-12-1974 making applicable provisions of S.54 of Transfer of Property Act, 1882 to sale of agricultural land.

Ch. Shaukat Ali Saqib, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 30th June, 2004.

SCMR 2008 SUPREME COURT 362 #

2008 S C M R 362

[Supreme Court of Pakistan]

Present: Javed Iqbal, Saiyed Saeed Ashhad and Hamid Ali Mirza, JJ

Brigadier (R) RASHID AHMAD----Petitioner

Versus

Dafedar RASHID AHMAD and others----Respondents

Civil Petition No.3050 of 2003, decided on 22nd March, 2006.

(On appeal from the judgment, dated 18-9-2003 passed by Lahore High Court, Bahawalpur Bench, Bahawalpur in Writ petition No.1994 of 1995).

West Pakistan Border Area Regulation, 1959 (M.L.R.9)---

----Regln. 13---Second allotment of land without cancelling its previous allotment existing in favour of other allottee---Validity---Previous allotment, if illegal due to its procurement by practising fraud, interpolation/manipulation of official record, is required to be cancelled or set aside by competent authority before making second allotment---Second allotment without adopting such course would be illegal and of no legal effect---Previous allotment could be cancelled only after providing opportunity to its allottee to disprove such allegations---Principles.

Abdul Rashid Awan, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.

Ibad-ur-Rehman Lodhi, Advocate Supreme Court and Ejaz M. Khan, Advocate-on-Record (absent) for Respondent No.1.

Raja Saeed Akram, A.A.-G. for Official Respondent.

SCMR 2008 SUPREME COURT 366 #

2008 S C M R 366

[Supreme Court of Pakistan]

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

ABDUL LATIF---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, KHANEWAL and others---Respondents

Civil Petition Appeal No.2205-L of 2004, decided on 22nd July, 2004.

(On appeal against the judgment dated 25-6-2004 passed by the Lahore High Court, Multan Bench in Writ Petition No.1586 of 2003).

Punjab Local Government Elections Ordinance (V of 2000)---

----S. 14---Constitution of Pakistan (1973), Art.185(3)---Qualification to contest election of Naib Nazim at age of 25 years---Cut off date for having such qualification, whether would be last date of filing of nomination papers or date of scrutiny of nomination papers---Age of respondent (candidate for election of Naib Nazim) was less than 25 years on 24-4-2001 i.e. last date of filing nomination papers---Respondent acquired age of 25 years on 5-5-2001 i.e. last date of scrutiny, while his nomination papers were examined in between the period commencing from 1-5-2001 to 3-5-2001---Contention of petitioner was that election process commences from date of filing of nomination papers, thus, respondent was bound to show his qualification at the time of filing of nomination papers, but he failed to do so---Contention of respondent was that cut off date was not provided in S.14(b) of Punjab Local Government Elections Ordinance, 2000, thus, date of qualification would be the date of scrutiny; and that S.14 thereof would be construed liberally in view of earlier law embodied in S.20 of Punjab Local Government Ordinance, 1979---Supreme Court granted leave to appeal to examine such contentions.

Waqas Akram v. Dr. Muhammad Tahirul Qadri and others 2003 SCMR 145; Election Commission of Pakistan v. Javed Hashmi PLD 1989 SC 396 and Emmanual Masih v. the Punjab Local Councils Election Authority and others 1985 SCMR 729 ref.

Sheikh Khizar Hayat, Senior Advocate Supreme Court and Mahmood-ul-Islam, Advocate-on-Record for Petitioner.

Nemo for Respondents Nos.1 and 4.

Anwar Kamal, Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record for Respondent No.2.

Respondent No.3 in person.

Date of hearing: 22nd July, 2004.

SCMR 2008 SUPREME COURT 369 #

2008 S C M R 369

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Falak Sher and M. Javed Buttar, JJ

SECRETARY TO GOVERNMENT OF THE PUNJAB, HEALTH DEPARTMENT, LAHORE and others----Petitioners

Versus

Dr. ABIDA IQBAL and another----Respondents

Civil Petition for Leave to Appeal No.2598-L of 2004, decided on 1st November, 2004.

(On appeal from the judgment, dated 10-7-2004 of the Punjab Service Tribunal, Lahore passed in Appeal No.708 of 2004).

(a) Punjab Health Department (Medical and Dental Teaching Posts) Service Rules, 1979---

----Constitution of Pakistan (1973), Art.212(3)---Promotion---Post of Professor in Medical College---Initial appointment of appellant as Demonstrator, but subsequently promoted by Provincial Government to use designation of Assistant Professor as a special case of hardship---Initial appointment of respondent as Demonstrator, but subsequently promoted as Assistant Professor on recommendations of Public Service Commission---Contest between appellant and respondent for post of Professor---Post of Assistant Professor could be filled only through initial recruitment by Public Service Commission (the only proper and legal path to reach such post) and there was no provision for any appointment to such post through promotion---Respondent had become an Assistant Professor through legal and right channel---Appellant had been allowed to use designation of Assistant Professor as a special case of hardship---Appointment of appellant as Assistant Professor was invalid, thus, she was not qualified to be appointed or promoted as Associate Professor and in turn not entitled to be considered for post of Professor.

(b) Punjab Health Department (Medical and Dental Teaching Posts) Service Rules, 1979---

----Constitution of Pakistan (1973), Art.212(3)---Promotion---Post of Professor in Fatima Jinnah Medical College, Lahore---Appellant promoted by Punjab Government to use designation of Assistant Professor as a special case of hardship---Respondent promoted as Assistant Professor on recommendations of Public Service Commission---Contest between appellant and respondent for post of Professor---Promotion of respondent as Professor---Service Tribunal accepted appeal of appellant on the ground that she belonged to Fatima Jinnah Cadre, while respondent fell in General Cadre---Validity---Leave to appeal was granted by the Supreme Court to consider question that did any such cadres exist in law vis-a-vis members of teaching staff of such college; that was respondent rightly placed outside so-called Fatima Jinnah Cadre, meaning thereby that she was lawfully found disentitled to guarantees given by Government on 1-7-1980; that was respondent never appointed as Assistant Professor and did any rules permit promotion of Demonstrator as Assistant Professor that was any authority vested in Government to appoint any one as Assistant Professor or Associate Professor of a Medical Institution, when such posts were required by law to be filled in only through Public Service Commission; that could appellant be considered in law to be rightly appointed as Assistant Professor and if not, then could she be allowed to use her appointment to such post to the prejudice of other colleagues; that was appellant qualified in law to be considered for appointment as Professor; that was appellant senior to respondent or superior to her in merit and that Service Tribunal competent to deal with question of promotions.

Fawzi Zafar, A.A.-G. along with Dr. Ijaz Munir, Additional Secretary, Health.

Amir Alam Khan, Senior Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Respondent No. 1.

Respondent No.2 in person.

SCMR 2008 SUPREME COURT 378 #

2008 S C M R 378

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Hamid Ali Mirza and Falak Sher, JJ

AHMAD KHAN---Petitioner

Versus

ABDUR RASHEED and others---Respondents

Criminal Petitions Nos.732-L and J.P.369 of 2002, decided on 16th July, 2004.

(On appeal from the judgment dated 31-7-2002 in Cr.A. No.172 of 1999 and M.R. No.37 of 1994 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur).

Penal Code (XLV of 1860)---

----S. 302 (b)---Constitution of Pakistan (1973), Art.185 (3)---Reappraisal of evidence---Mitigating circumstances---Motive---Accused was convicted and sentenced to death under S.302 (b) P.P.C. but High Court converted the sentence to life imprisonment on account of mitigating circumstances that the prosecution witnesses kept on changing the motive---Validity---Prosecution after having alleged the motive, had failed to establish the same in order to show involvement of the accused---No other sufficient material being available on record against the accused, he was rightly found entitled for lesser punishment---Leave to appeal was refused.

Feroze Khan v. The State 2002 SCMR 99 rel.

A.H. Masood, Advocate Supreme Court/Advocate-on-Record for Petitioner.

Raja Abdur Rehman, Assistant Advocate-General for the State.

Date of hearing: 16th July, 2004.

SCMR 2008 SUPREME COURT 380 #

2008 S C M R 380

[Supreme Court of Pakistan]

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

QAIM SHAH----Petitioner

Versus

THE STATE----Respondent

Jail Petitions Nos.94 and 141 of 2004, decided on 30th May, 2006.

(On appeal from the judgment, dated 14-1-2004 of the Peshawar High Court Peshawar passed in Jail Criminal Appeals Nos. 184 and 185 of 2003).

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

----S. 9(c)---Appreciation of evidence---Sentence, reduction in---Recovery of 13 kilograms and 600 grams of Charas and one kilogram opium from male accused---Recovery of 9 kilograms and 600 grams Charas from female accused from different packets---Both accused not related to each other were travelling together in a bus---Prosecution witnesses had no enmity or grudge against accused to involve them falsely---Prosecution witnesses were consistent and confidence-inspiring regarding time, place of occurrence and recovery of narcotics---Recovery of such huge quantity of narcotics from individual accused had been effected honestly and fairly---Conviction of both accused was upheld, while sentence of life imprisonment also awarded to female accused was reduced to 10 years' R.I. for recovery from her being less than 10 kilograms.

Dil Muhammad Tarar, Advocate Supreme Court for Petitioner.

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

Date of hearing: 30th May, 2006.

SCMR 2008 SUPREME COURT 383 #

2008 S C M R 383

[Supreme Court of Pakistan]

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

GHULAM FAROOQ TARAR----Petitioner

Versus

RIZWAN AHMAD and others----Respondents

Criminal Petition for Leave to Appeal No.436-L of 2001, decided on 18th July, 2005.

(On appeal from the order of the Lahore High Court, dated 7-5-2001 passed in Criminal Appeal No.787 of 1999).

----S. 66-A---Penal Code (XLV of 1860), Ss.420/468/482/471---Criminal Procedure Code (V of 1898), S.249-A---Constitution of Pakistan (1973), Art.185(3)---Accused acquitted under S.249-A, Cr.P.C.---Validity---Accused in his application moved under S.249-A, Cr.P.C. had not specifically denied the publication by him of the two books in question---Court undoubtedly could acquit the accused under S.249-A, Cr.P.C. if in its opinion either the charge was groundless or there was no probability of the accused being convicted of any offence, but if the allegations levelled in the complaint supported by the preliminary evidence were admitted to be true, probability of conviction of accused at such stage could not be ignored---Trial Court had acted in haste in passing the order of acquittal which was not sustainable and the same was consequently set aside by converting petition for leave to appeal into an appeal, with the direction to Trial Court to proceed with the complaint in accordance with law.

Raja Mehmood Akhtar, Advocate Supreme Court with Ahud-ul-Islam, Advocate-on-Record for Petitioner.

M. Ashraf Wahla, Advocate Supreme Court with M.A. Qureshi, Advocate-on-Record for Respondents Nos.1 to 3.

S.D. Qureshi, Advocate Supreme Court for the State.

Date of hearing: 18th July, 2005.

SCMR 2008 SUPREME COURT 385 #

2008 S C M R 385

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Faqir Muhammad Khokhar, JJ

SMOOTH PHARMACEUTICALS (PVT.) and others---Petitioners

Versus

BANK OF KHYBER---Respondent

Civil Petition No. 332-L of 2004, decided on 8th July, 2004.

(On appeal against the judgment, dated 9-12-2003 passed by Lahore High Court in R.F.A. No.64 of 2003).

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

----Ss.10 & 17---Constitution of Pakistan (1973), Art.185(3)---Suit for recovery of loan amount---Liability to pay outstanding claim of Bank not denied by defendant in application for leave to defend suit---Suit decreed by Banking Court was upheld by High Court---Plea of defendant was that claim of Bank was based on blank papers, which were inadmissible in evidence under law, thus, no decree could be based thereon---Validity---Defendant in leave application had not denied his liability to satisfy claim of Bank---Non-disputing liability by defendant would be sufficient to draw conclusion that decree had been passed on admissible documents---Payment of 50% decretal amount by defendant would show that he had started satisfying decree---No point of pubic importance was involved in case---Supreme Court dismissed petition.

Jahangir A. Jhoja, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Petitioners.

Tanveer Ahmed, Advocate-on-Record for Respondent.

Date of hearing: 8th July, 2004.

SCMR 2008 SUPREME COURT 387 #

2008 S C M R 387

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Tassaduq Hussain Jillani, JJ

MUHAMMAD IQBAL---Petitioner

Versus

THE STATE---Respondent

Civil Petition No. 734-L of 2003, decided on 2nd September, 2004.

(On petition from the judgment, dated 15-9-2003 passed by Lahore High Court, Lahore in Criminal Petition No.1440 of 2001).

Surrender of Illicit Arms Act (XXI of 1991)---

----S. 7 (b)---Constitution of Pakistan (1973), Art.185 (3)---Reappraisal of evidence---Recovery of .222 bore rifle---Plea raised by the accused was that rifle recovered was not in his possession within the target date---Validity---Witnesses of recovery were all consistent on the timing, place and mode of recovery of the illicit arm---During cross-examination no suggestion was made that any of the recovery witnesses was inimical towards the accused---Only plea taken by the accused in his statement recorded under S.342 Cr.P.C. was that the case was false and had been registered under the influence of Ex-M.P.A.---Such plea was too far-fetched to create doubt in the prosecution case---Prosecution had proved its case beyond reasonable doubt---No question of law had been raised---Conviction and sentence of ten years imprisonment awarded by Trial Court was maintained by Supreme Court---Leave to appeal was refused.

Muhammad Ishfaq alias Pappu v. The State PLD 2002 Lah. 36 distinguished.

Mian Ghulam Hussain, Advocate Supreme Court and Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Petitioner.

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

Date of hearing: 25th August, 2004.

SCMR 2008 SUPREME COURT 390 #

2008 S C M R 390

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Ghulam Rabbani, JJ

MUHAMMAD SHARIF through L.Rs.----Petitioner

Versus

VTH ADDITIONAL DISTRICT AND SESSIONS JUDGE (CENTRAL), KARACHI----Respondent

Civil Petition No.557-K of 2006, decided on 18th December, 2006.

(On appeal from the order, dated 11-9-2006 passed by the High Court of Sindh, Karachi on C.P. No.S-663 of 2004).

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

----S.15(2)(ii)---Constitution of Pakistan (1973), Art.185(3)---Default in payment of rent---Ejectment application was dismissed by the Rent Controller, but Appellate Court setting aside judgment of the Rent Controller, accepted ejectment application and directed tenants to vacate premises---High Court upheld judgment of Appellate Court---Tenants who had asserted that they had tendered the rent, could not produce receipt for payment thereof and had simply stated that practice was to pay rent in lump sum, but did not say in affirmative or in negative that in the past no receipt was issued---Landlords denied assertion of tenants about payment of disputed rent---Plea of tenants that landlords received the rent, but had abstained to issue receipt thereof was hard to accept---Concurrent findings of Appellate Court and the High Court against tenants, could not be interfered with, in circumstances---Petition for leave to appeal was dismissed.

Anwar Hussain, Advocate Supreme Court and Ali Akbar, Advocate-on-Record (absent) for Petitioner.

Nemo for Respondent.

SCMR 2008 SUPREME COURT 392 #

2008 S C M R 392

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi, Muhammad Qaim Jan Khan and Zia Perwez, JJ

THE STATE through Advocate-General, N.-W.F.P., Peshawar and another----Petitioners

Versus

JAN MUHAMMAD and others----Respondents

Criminal Petitions Nos.76-P and 83-P of 2003, decided on.4th December, 2007.

(On appeal from the judgment of the Peshawar High Court, Peshawar, dated 8-4-2003 passed in Criminal Appeal No.51 of 2001).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal contending that High Court on the basis of minor discrepancies and contradictions had excluded from consideration the direct evidence of the most natural and reliable witnesses duly supported by the medical evidence and the attending circumstances---Leave to appeal was granted by the Supreme Court to reappraise the entire evidence to ascertain the question of legality or otherwise of acquittal of accused from the capital charge with direction to issue bailable warrants of the accused persons.

M. Zaman Bhatti, Advocate Supreme Court for Petitioner (in Cr.P. No.76-P of 2003).

Nemo for Petitioner (in Cr.P. No.83-P of 2003).

Nemo for Respondents (in Cr.P. No.76-P of 2003).

SCMR 2008 SUPREME COURT 394 #

2008 S C M R 394

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Syed Jamshed Ali and Ghulam Rabbani, JJ

MUHAMMAD YAQOOB and others----Appellants

Versus

MUHAMMAD MUNSHI and others----Respondents

Civil Appeal No.1678 of 2005, decided on 9th April, 2007.

(On appeal from the judgment/order, dated 24-10-2005 passed by the Lahore High Court, Lahore, in Civil Revision No.1972 of 2005).

Specific Relief Act (I of 1877)---

---Ss.42 & 54---Constitution of Pakistan (1973), Art.185---Appeal to Supreme Court---Suit for declaration and permanent injunction was concurrently dismissed by the Trial Court and Appellate Court, but High Court, in revision partly decreed the same in favour of respondents to the extent of possession of the suit-land---Collector, on the basis of the entitlement certificate and allotment chit, had got registered sale-deed in favour of appellants followed by mutation---Register Haqdaran Zamin, also showed that suit-land stood transferred in the name of appellants---None of the courts had found the entitlement of the contesting respondents to the suit land as claimed by them---High Court, in circumstances was not justified in partly decreeing the suit of the respondents as regard their possession as owners of the same---High Court could not ignore the evidence which clearly indicated the transfer/sale of the suit land and grant of its proprietary rights to the appellants being affectees of Mangla Dam---Impugned judgment of the High Court suffered from misreading and non-reading of material evidence on record and the same was not sustainable at law---Appeal was allowed and impugned judgment of the High Court was set aside.

SCMR 2008 SUPREME COURT 396 #

2008 S C M R 396

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Muhammad Moosa K. Leghari, JJ

MUHAMMAD ILYAS----Petitioner

Versus

THE STATE----Respondent

Criminal Miscellaneous Application No.216 of 2007 in Jail Petition No.350 of 2006, decided on 28th November, 2007.

(On appeal against the judgment, dated 13-7-2006 passed by Lahore High Court, Lahore, in Criminal Appeal No.281-J of 2001 and Murder Reference No.472 of 2001).

Penal Code (XLV of 1860)---

----Ss. 302, 306 & 308---Constitution of Pakistan (1973), Art.185(3)---Application for grant of permission to compromise---Petitioner who was real father of the victim girl was awarded death penalty---Only legal heir of the victim girl was her mother who had compromised the offence and had forgiven the petitioner in the name of Almighty Allah and the prayer was granted---Case of petitioner fell within clause (c) of S.306, P.P.C., and was not liable to Qisas, but the punishment provided under S.308, P.P.C. would be attracted---Petitioner would be liable to payment of Diyat to the legal heirs of the deceased, which in the case was mother of the deceased---Sentence of death awarded to accused was modified and according to S.308(2), P.P.C. as stood on the date of the offence, petitioner would be liable to imprisonment for a term extendable to 14 years as Ta'zir beside the payment of Diyat.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.

Ch. Munir Sadiq D.P.-G. for the State.

SCMR 2008 SUPREME COURT 398 #

2008 S C M R 398

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

MUHAMMAD HAFEEZ and another----Petitioners

Versus

DISTRICT JUDGE, KARACHI EAST and another--Respondents

Civil Petition No.537-K of 2003, decided on 14th June, 2005.

(On appeal from the judgment, dated 19-5-2003 passed by the High Court of Sindh, Karachi in Constitutional Petition No. 833. of 2002).

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

----Ss. 96, 100, 115 & O.XLI, R.33---Conflicting judgments of Trial Court and Appellate Court---Effect---Findings of Appellate Court would be preferred and respected in such event---Exceptions stated.

In the event of conflict of judgments, findings of Appellate Court are to be preferred and respected, unless it is shown from the record that such findings are not supported by evidence; that the conclusions drawn are against the material on record; that the judgment of Appellate Court suffers from misreading or non-reading of evidence or that the reasons recorded for reversal of judgment are arbitrary, fanciful and perverse.

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

----S. 15(2)(vii)---Bona fide personal need of landlord---Plea in ejectment petition was that landlord along with his wife and four sons was residing in a building consisting of three rooms---Landlord during evidence admitted that such building consisted of seven rooms and widows of his brothers were residing on 2nd, 3rd and top floor thereof---Effect---Such factual aspect of the case had neither been disclosed in ejectment petition nor in affidavit-in-evidence of witness---Such piece of evidence being inconsistent with the case set up in pleadings would not be accepted---Absence of material facts from pleadings would be fatal to the cause of landlord---Ejectment petition was dismissed in circumstances---Principles.

----S. 15(2)(vii)---Ejectment petition---Bona fide personal need of landlord---Pleadings and proof---Landlord, in order to demonstrate good faith and bona fides on his part, must disclose broad facts with a view to provide an opportunity to opposite party to controvert same and also satisfy conscience of Rent Controller called upon to exercise discretion in his favour while uprooting an old tenant---Statement of landlord, if consistent with pleadings, must be given due weight---Absence of material facts from pleadings would be fatal to the cause of landlord, who could not be allowed to obtain premises on un-pleaded ground---Evidence on record, if inconsistent with the case set up in pleadings, would not be accepted---Principles.

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

----S. 18---Notice to tenant under S.18 of Sindh Rented Premises Ordinance, 1979---Landlord, in order to demonstrate good faith and bona fide, should disclose his intention in such notice to eject tenant for default on his part.

Imran Ahmed, Advocate Supreme Court and Ms. Wajahat Niaz, Advocate-on-Record for Petitioners.

Nemo for Respondent No.1.

Suleman Habibullah, Advocate-on-Record for Respondent No.2.

SCMR 2008 SUPREME COURT 402 #

2008 S C M R 402

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Nasir-ul-Mulk and Syed Jamshed Ali, JJ

RAJA RIAZ----Petitioner

Versus

CHAIRMAN, PAKISTAN SPACE AND UPPER ATMOSPHERE RESEARCH COMMISSION, KARACHI----Respondent

Civil Petition No.722 and C.A. No.1658 of 2007, decided on.19th September, 2007.

(Against the notice of Registrar of FST, Islamabad in Appeal No.2072/C(R)(C.E.) of 2005).

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Disposal of appeal by Service Tribunal by issuing notice through its Registrar informing appellant that his appeal had abated in view of judgment of Supreme Court---Validity---Separate order was required to be passed by Tribunal after providing opportunity to parties keeping in view observations made in such judgment---Such notice of information, thus, could not be considered a judicial order---Supreme Court remanded case to Tribunal for its decision accordingly.

Abdul Rehman Siddiqui, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioner.

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

SCMR 2008 SUPREME COURT 404 #

2008 S C M R 404

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Saiyed Saeed Ashhad, JJ

Sardar MUHAMMAD NAWAZ---Appellant

Versus

Mst. FIRDOUS BEGUM----Respondent

Civil Appeal No.393 of 2003, decided on 2nd February, 2006.

(On appeal from the judgment, dated 2-11-1999 passed by Lahore High Court, Lahore, in Civil Revision No.1226 of 1998).

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

----Art. 189---Contrary judgments/observations of Supreme Court on an issue---Effect---Judgment of Larger Bench would be preferred and followed.

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

----Ss. 13 & 30---Talb-i-Muwathibat and Talb-i-Ishhad, performance of---Non-mentioning in plaint and notice of Talb-i-Ishhad, the date, time, place and names of two witnesses before whom pre-emptor received information of sale and expressed intention to pre-empt suitland---Effect---In absence of such facts, questions of issuance of notice within statutory period of 14 days from date of information of sale and making of Talb-i-Muwathibat, and that of filing suit within period of 120 days from date of information of Talb-i-Muwathibat, could not be properly decided---Absence or omission of all such facts in plaint and notice of Talb-i-Ishhad would be fatal to pre-emptor's suit---Illustration.

In the present case, the pre-emptor made a general statement that on having acquired knowledge of sale of suit-land, he expressed his intention to pre-empt suit-land in the presence of two truthful witnesses on 4-5-1993. Admittedly, the sale of suit-land was made on 1-3-1993. It was, therefore, necessary for the pre-emptor to have mentioned the date, time, and place of receiving information of sale of suit-land in the notice sent by him by way of Talb-i-Ishhad as well as in the plaint, but such course was not adopted by him. The date, time and place as well as the presence of two witnesses were not mentioned in the plaint. In the facts and circumstances of the present case, it was imperative for the pre-emptor to have mentioned the date, time and place as well as names of the persons in whose presence he had received the information of sale of suit-land as well 'as having proclaimed his intention and desire to exercise his right of pre-emption in respect of suit-land. The questions, whether the notice was issued within the statutory period of 14 days from the date of receiving information of sale and making of Talb-i-Muwathibat, and whether the suit was filed within the period of 120 days from the date of information of Talb-i-Muwathibat, could not be properly adjudicated in the absence or omission to mention the date and time of information of sale, and such omission relative to date, time and place as well as the names of the witnesses in the notice of Talb-i-Ishhad and plaint would be fatal to the suit of the pre-emptor---Suit was dismissed in circumstances.

Sardar Ali and others v. Additional Secretary Home and T.A. Department and others 1996 SCMR 1480; Khairullah v. Sultan Muhammad and another 1997 SCMR 906; Haji Qadir Gul v. Moembar Khan and another 1998 SCMR 2102; Chaudhry Muhammad Saleem v. Fazal Ahmad and 2 others 1997 SCMR 315; Abdul Malik v. Muhammad Latif 1999 SCMR 717; Muhammad Ilyas v. Ghulam Muhammad and another 1999 SCMR 958; Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs 2000 SCMR 314; Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329 and Azmatullah through L.Rs. v. Mst. Hameeda Bibi and others 2005 SCMR 1201 ref.

Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315; Akbar Ali Khan v. Mukamil Shah and others 2005 SCMR 431; Muhammad Siddique v. Muhammad Sharif and others 2005 SCMR 1231 and Fazal Subhan and 11 others v. Mst. Sahib Jamala and others PLD 2005 SC 977 rel.

----Art. 185(3)---Petition for leave to appeal---Use of words "inter alia" in leave granting order---Supreme Court while hearing appeal declined to consider to deal with question on which leave was granted, but considered issues/questions, which were not raised by appellant at leave granting stage---Validity---In view of use of word "inter alia" in leave granting order, Supreme Court would not be precluded or estopped from considering questions/issues not raised by appellant at leave granting stage.

Ghulam Jillani and 3 others v. Ghulam Muhammad and 7 others 1991 SCMR 2001 rel.

Hasnat Ahmad Khan, Advocate Supreme Court and C.M. Latif, Advocate-on-Record (absent) for Appellant.

Mehmood-ul-Islam, Advocate-on-Record for Respondent.

Date of hearing: 2nd February, 2006.

SCMR 2008 SUPREME COURT 415 #

2008 S C M R 415

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Muhammad Moosa K. Leghari, JJ

FEDERATION OF PAKISTAN and others----Appellants

Versus

MUHAMMAD ASHRAF and others----Respondents

Civil Appeals Nos.1598, 1599, 1600, 1601 and 1602 of 2005, decided on 5th December, 2007.

(On appeal against the judgment, dated 11-10-2004 passed by the Federal Service Tribunal, Islamabad in Appeals Nos.179, 198, 271, 664(R)(C.S.) of 2002 and 199(P)(C.S.) of 2003 respectively).

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

----S. 13---Government Servants (Efficiency and Discipline) Rules, 1973, R.4(1)(b)(ii)---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art.212(3)---Compulsory retirement with pensionary benefits---Reinstatement of civil servant by Service Tribunal---Validity-Supreme Court granted leave to appeal to consider the pleas raised by Authority to the effect that retirement simpliciter was distinguishable from compulsory retirement and consequently, order of retirement passed under S.13(1)(i) of Civil Servants Act, 1973 could not be equated with order of compulsory retirement punishable under Government Servants (Efficiency and Discipline) Rules, 1973; and that retirement under S.13(1)(i) of Civil Servants Act, 1973 qualifying for pension being not in violation of terms and conditions of service could not be questioned and civil servant was not an aggrieved person to maintain appeal under S.4 of Service Tribunals Act, 1973 against such order before Tribunal.

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

----S. 13---Retirement from service---Guidelines issued by Establishment Division for benefit of all Ministries in order to ensure uniformity of action---Applicability---Such guidelines would not be followed in a mechanical manner, but would be used to scrutinize entire service record of civil servant and to arrive at a reasonable conclusion---Total performance of civil servant would be kept in view and penalties, if any, would be weighed against his overall performance---Lapses of civil servant in nature of human error could not be allowed to overweigh his overall performance.

Muhammad Qadeer and 2 others v. Secretary, Defence Production Division, Government of Pakistan and others 2003 SCMR 1804 fol.

Nahida Mehboob Elahi, D.A.-G. and Ch. M. Akram, Advocate-on-Record for Appellants (in all Appeals).

Sh. Riaz-ul-Haq, Advocate Supreme Court and M A. Zaidi, Advocate-on-Record for Respondents (C.As. Nos.1599 and 1601 of 2005).

Respondent in person (in C.A. No.1602 of 2005).

Nemo for Respondent (in C.As. Nos.1598 and 1600 of 2005).

Date of hearing: 5th December, 2007.

SCMR 2008 SUPREME COURT 419 #

2008 S C M R 419

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

Mrs. PARVEEN ASIF----Petitioner

Versus

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

C.P.L.A. No.832-K of 2005, decided on 11th October, 2006.

(On appeal from order of Sindh High Court, Karachi, dated 16-9-2005 passed in Revision Application No.2927 of 2005).

Constitution of Pakistan (1973)---

---Art. 185(3)---Petition for leave to appeal---Limitation---Condonation of delay---Petition was barred by five days---Application seeking condonation of delay, on the face of it, had given general account of disability of the petitioner, without showing that she was completely disabled and prevented from communicating with her A.O.R. or the A.S.C.---Counsel for petitioner stated that son of the petitioner was suffering from hypertension and depression and was advised one month rest with effect from 16-9-2005 to 16-10-2005---Petition was filed in the office of the Court on 30-11-2005, without accounting for the subsequent period---If the petitioner could prosecute her remedy before the High Court through a counsel while sitting at home, she could challenge impugned order within time through a counsel---No satisfactory account for the delay had been furnished, muchless a sufficient cause for extension of time---Prayer of petitioner for enlargement of time was declined and petition was dismissed as barred by time.

Abdul Ghafoor Mangi, Advocate-on-Record/Advocate Supreme Court for petitioner.

Rizwan Ahmad Siddiqui, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent No.1.

SCMR 2008 SUPREME COURT 420 #

2008 S C M R 420

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Abdul Hameed Dogar and Saiyed Saeed Ashhad, JJ

Civil Petition No.717 of 2006

UMAR DRAZ KHAN----Petitioner

Versus

P.I.A. through Chairman and others----Respondents

(On appeal from the order, dated 25-7-2006 of the Federal Service Tribunal, Islamabad passed in M.P. No.1455 of 2006 in Appeal No.398(R)(C.S.) of 2006).

Civil Petition No.737 of 2006

MUHAMMAD GHOUS MALIK----Petitioner

Versus

BAKHAT ALI and others----Respondents

(On appeal from the order, dated 26-7-2006 of the Federal

Service Tribunal, Islamabad passed in M.P. No.1460 of 2006 in Appeal No.533(R)(C.E.) of 2006).

Civil Petition No.763 of 2006

MUHAMMAD ASHFAQ- --Petitioner

Versus

MANAGING DIRECTOR USC and others----Respondents

(On appeal from the order, dated 22-7-2006 of the Federal Service Tribunal, Islamabad passed in M. P. No.1459 of 2006 in Appeal No.63(L)(C.E.) of 2005).

Civil Petition No.819 of 2006

FAZAL-E-QADIR----Petitioner

Versus

BAKHAT ALI and others----Respondents

(On appeal from the order, dated 8-9-2006 of the Federal Service Tribunal, Islamabad passed in Appeal No.219(R)(C.'S.) of 2006).

Civil Petitions Nos.820 and 821 of 2006

FAIZUL AMIN----Petitioner

Versus

WAPDA through Chairman and others----Respondents

(On appeal from the order, dated 26-7-2006 of the Federal Service Tribunal, Islamabad passed in M.Ps. Nos.1451 and 1452 of 2006 in Appeals Nos.249 and 306(P)(C.E.) of 2004).

Civil Petition No.826 of 2006

MUHAMMAD GHOUS MALIK----Petitioner

Versus

BAKHAT ALI and others----Respondents

(On appeal from the order, dated 21-7-2006 of the Federal Service Tribunal, Islamabad passed in M.P. No.1446 of 2006 in Appeal No.1244(R)(C.E.) of 2004).

Civil Petition No.833 of 2006

MUHAMMAD USMAN GHANI RAO----Petitioner

Versus

PIAC through Chairman and another----Respondents

(On appeal from the order, dated 1-9-2006 of the Federal Service Tribunal, Islamabad passed in M.P. No.1573 of 2006 in Appeal No.153(R)(C.S.1 of 2003).

Civil Petition No.834 of 2006

FARHAT AZIZ----Petitioners

Versus

EVACUEE TRUST PROPERTY BOARD and another----Respondents

(On appeal from the order, dated 1-9-2006 of the Federal Service Tribunal, Islamabad passed in M.P. No.1636 of 2006 in Appeal No.303(R)(C.E.) 01 2006).

Civil Petition No.841 of 2006

SHAH MOHYUDDIN HASHMI----Petitioner

Versus

EXECUTIVE COUNCIL AIOU and others----Respondents

(On appeal from the order, dated 1-9-2006 of the Federal Service Tribunal, Islamabad passed in M.P. No.1576 of 2006 in Appeal No.1524(R)(C.E.) of 2004).

Civil Petition No.842 of 2006

Dr. MUHAMMAD FUFAIL HASHMI----Petitioner

Versus

EXECUTIVE COUNCIL AIOU and others----Respondents

(On appeal from the order, dated 1-9-2006 of the Federal Service Tribunal, Islamabad passed in M.P. No.1575 of 2006 in Appeal No.1.385(R)(C.E.) of 2004).

Civil Petition No.843 of 2006

MUHAMMAD ANJUM MALIK---Petitioner

Versus

C.D.A. through Chairman and another----Respondents

(On appeal from the order, dated 1-9-2006 of the Federal Service Tribunal, Islamabad passed in M. P. No.1554 of 2006 in Appeal No.1174(R)(C.E.) of 2004).

Civil Petition No.854 of 2006

ABDUL QAYYUM----Petitioner

Versus

SECRETARY MINISTRY OF FINANCE and another----Respondents

(On appeal from the order, dated 1-9-2006 of the Federal Service Tribunal, Islamabad passed in M.P. No.1551 of 2006 in Appeal No.1685(R)(C.E.) of 2004).

Civil Petition No.855 of 2006

MUHAMMAD TAHSEEN RAZA----Petitioner

Versus

H.B.L., through President and another----Respondents

(On appeal from the order, dated 1-9-2006 of the Federal Service Tribunal, Islamabad passed in M.P. No.1555 of 2006 in Appeal No.1428(R)(C.E.) of 2006).

Civil Petition No.856 of 2006

SHABBIR AHMED----Petitioner

Versus

FEDERATION OF PAKISTAN and others----Respondents

(On appeal from the order, dated 1-9-2006 of the Federal Service Tribunal, Islamabad passed in M. P. No.1634 of 2006 in Appeal No.2(R)(C.E.) of 2003).

Civil Petition No.857 of 2006

MUHAMMAD JAVED SALIK LODHI----Petitioner

Versus

FEDERATION OF PAKISTAN and others----Respondents

(On appeal from the order, dated 27-7-2006 of the Federal Service Tribunal, Islamabad passed in Appeal No.504(R)(C.E.) of 2001).

Civil Petition No.858 of 2006

QADIR BUX NOORANI----Petitioner

Versus

WAPDA through Chairman and others----Respondents

(On appeal from the order, dated 1-9-2006 of the Federal

Service Tribunal, Islamabad passed in M.P. No.1553 of 2006 in Appeal No.737(R)(C.E.) of 2004).

Civil Petition No.859 of 2006

ALI ASGHAR ABBASI----Petitioner

Versus

SMALL AND MEDIUM ENTERPRISES (SME) BANK and another----Respondents

(On appeal from the order, dated 1-9-2006 of the Federal Service Tribunal, Islamabad passed in M.P. No.1560 of 2006 in Appeal No.1387(R)(C.E.) of 2004).

Civil Petitions Nos.717, 737, 763, 819 to 821, 826, 833, 834, 841, 842, 843 and 854 to 859 of 2006, decided on 26th September, 2006.

Service Tribunals Act (LXX of 1973)---

---Ss. 2-A & 4---Removal from Service (Special Powers) Ordinance (XVII of 2000), S.3---Constitution of Pakistan (1973), Art.212(1)(a) & (3)---Appeals before Service Tribunal, pendency of---Employees of Government or Corporation---Removal or dismissal from service of such employees under Removal from Service (Special Powers) Ordinance, 2000---Effect of judgment of Supreme Court reported as PLD 2005 SC 602 on such pending appeals---Supreme Court granted leave to appeal, inter alia, to examine the effect of such judgment pertaining to interpretation of S.2-A of Service Tribunals Act, 1973 on such pending appeals as category of such employees was altogether different from category of employees, who had been removed under ordinary provisions of law of a Corporation, whereas in terms of S.2-A of the Service Tribunals Act, 1973, they were declared as civil servants.?

Muhammad Mubeen-us-Salam v. Federation of Pakistan and others PLD 2006 SC 602 ref.

M. Shoaib Shaheen, Advocate Supreme Court for Petitioners (in Civil Petitions Nos.717, 826 and 857 of 2006).

Sh. Iftikhar Ahmed, Advocate Supreme Court for Petitioners (in Civil Petitions Nos.858, 859, 737 and 834 of 2006).

Abdul Rehman Siddiqui, Advocate Supreme Court for Petitioners (in-Civil Petition No.819 of 2006).

Raja Muhammad Asghar Khan, Advocate Supreme Court for Petitioners (in Civil Petition No.833 of 2006).

Petitioners in person (in Civil Petitions Nos.841, 842, 843, 854, 855, 856, 763, 820 and 821 of 2006).

Anwar Kamal, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Respondents (in Civil Petition No.717 of 2006).

SCMR 2008 SUPREME COURT 425 #

2008 S C M R 425

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

WAZIR MUHAMMAD----Petitioner

Versus

MUHAMMAD ARIF QURESHI----Respondent

Civil Petition No.137-K of 2007, decided on 7th August, 2007.

(On appeal from the judgment of High Court of Sindh, dated 6-2-2007 passed in H.C.A. No.469 of 2006).

Civil Procedure Code (V of 1908)---

----O. XXXVII, Rr. 2 & 3---Constitution of Pakistan (1973), Art.185(3)---Suit for recovery of amount on the basis of pro note---Leave to defend suit---Unconditional leave to defend suit was granted by the High Court to respondent---Petitioner aggrieved by said order had filed petition for leave to appeal---No plausible ground was .given for grant of leave as execution of promissory note was not denied by the respondent---Even if there was an arguable and strong case put forward by the respondent, leave ought to have been granted on condition of solvent security or Bank guarantee, but both the Benches of the High Court failed to consider such aspect of the case and granted leave unconditionally to defend suit without securing the valuable interest of the petitioner---Leave to appeal was granted to consider question of law whether the High Court was justified in passing the impugned order and whether it could be sustained under the law.

Khawaja Naveed Ahmed, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

SCMR 2008 SUPREME COURT 427 #

2008 S C M R 427

[Supreme Court of Pakistan]

Present: M. Javed Buttar and Saiyed Saeed Ashhad, JJ

SULTAN MAHMOOD----Petitioner

Versus

CHIEF EXECUTIVE, AREA WATER BOARD and others---Respondents

Civil Petitions Nos.112-L and 1113-L of 2007, decided on 23rd January, 2008.

(On appeal against the judgment, dated 29-5-2007 passed by the Lahore High Court, Lahore, in Writ Petitions Nos.881 and 882).

Punjab Irrigation and Drainage Authority (Pilot Farmers Organizations) Rules, 2005---

----R.16(2)---Any body who may not be a candidate could raise the election dispute before the within mentioned Authority or an Authorized Officer---Order passed by Chief Executive Area Water Board/Superintending Engineer could have been treated as an order passed under R.16(2) of the Punjab Irrigation and Drainage Authority (Pilot Farmers Organizations) Rules, 2005.

Gulzarin Kiani, Advocate Supreme Court for Petitioner.

Mrs. Afshan Gazanffar, A.A.-G., Muhammad Shafiq, Secretary, PIDA and Naeem Qureshi, D.S. PIDA for Respondents Nos.1 to 3.

SCMR 2008 SUPREME COURT 428 #

2008 S C M R 428

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad and Hamid Ali Mirza, JJ

Malik MUHAMMAD KHAQAN----Petitioner

Versus

TRUSTEES OF THE PORT OF KARACHI (KPT) and another----Respondents

Civil Petitions Nos.4-K and 5-K of 2006, decided on 7th March, 2007.

(On appeal from the judgment, dated 19-12-2006 passed by Sindh High Court, Karachi, in Civil Revisions Nos.47 of 1995 and 256 of 2002).

(a) Easements Act (V of 1882)---

----Ss. 63 & 64---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan (1973), Art.185(3)---Declaration of title---Proof---Licensee, vested right of---Scope---Suit plots were temporarily allotted to plaintiff by Karachi Port Trust Board, which allotment was rescinded by the authorities---Plaintiff filed suit for declaration with regard to the suit plots, which was concurrently decreed in favour of plaintiff by Trial Court and Lower Appellate Court---High Court in exercise of revisional jurisdiction set aside the concurrent findings of two Courts below and dismissed the suit filed by plaintiff---Validity---Plaintiff failed to establish any vested right in respect of suit plots and his suits for declaration under S.42 of Specific Relief. Act, 1877, were not maintainable---Document relied upon by plaintiff in support of his entitlement to allotment was order conferring a right- on plaintiff to use demised plots as a licensee and a licence could neither confer any vested right on licensee nor a licensee could claim its continuation for an unlimited period of time as the same was revocable---Both the Trial Court and Lower Appellate Court failed to take into consideration very material facts and provision of law which resulted in grave and serious illegalities being committed by them in decreeing the suits---High Court found that suits were not maintainable and rightly set aside judgments and decrees passed by Lower Appellate Court and Trial Court, ordering dismissal of the suits---Plaintiff failed to prove that he had acquired vested right in respect of suit plots which was necessary for filing of suit for declaration of title/ownership in respect of immovable property under S.42 of Specific Relief Act, 1877-Plaintiff could not point out any document or material in support of such right vesting in him---Supreme Court declined to interfere with the judgment and decree passed by High Court---Leave to appeal was refused.

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

----S. 115---Revisional jurisdiction of High Court---Concurrent findings of facts by courts below---Interference---Principles---When findings of facts of Trial Court and Lower Appellate Court are contrary to evidence, material on record and against law, then revisional court has jurisdiction to rectify the same so as to bring findings in consonance with evidence on record or to remove illegality surfacing from judgment---If revisional Court finds any violation of provision of law or ignorance of law by Court then it is vested with the authority to set aside concurrent findings and substitute its own findings.

Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondents.

SCMR 2008 SUPREME COURT 431 #

2008 S C M R 431

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi, Muhammad Qaim Jan Khan and Syed Zawwar Hussain Jaffery, JJ

AZA GUL and others----Appellants

Versus

Haji FAZAL SUBHAN----Respondent

Civil Appeal No.1867 of 2003, decided on 10th January, 2008.

(On appeal from the judgment of the Peshawar High Court, Peshawar, dated 13-6-2003 passed in Civil Revision No.582 of 2000).

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

----Ss, 5 & 2(b)---Pre-emption suit---Limitation---Process of sale of land was spread over a period of one year but finally was completed in the shape of sale mutation on 21-5-1998 when the entire sale consideration was paid by the vendees to the vendor---Record did not show that pre-emptor was a party in the previous suit between the landlord (defendant) and the tenant nor he was a witness in that case nor he took any active part in the completion of the sale, though he was present in the earlier Jirgas---Transaction was spread over a period of one year and it was amply proved on the record that pre-emptor was informed by the informer regarding the completion of sale and sale mutation on 21-5-1998 in the presence of witnesses and pre-emptor, there and then performed Talb-i-Muwathibat and proclaimed his right of pre-emption on 25-5-1998 and in presence of said witnesses sent a notice of Talb-i-Ishhad to the vendees which was never answered---Informer and other two witnesses, who were present there, had successfully undergone the test of cross-examination and these points had been discussed by the High Court in the impugned judgment---Entire evidence thus revealed that suit was well within time---Nothing was on the record to show any type of waiver or estoppel against the pre-emptor---Defendants (respondents) seemed to be disinterested as was reflected, from their written statements and they had filed just an evasive type of written statements and had not complied with various provisions of law regarding written statements---Appeal against pre-emptor having .no legal force was dismissed by the Supreme Court.

Muhammad Munir Peracha, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants.

Gul Zarin Kiani, Advocate Supreme Court for Respondent.

Date of hearing: 10th January, 2008.

SCMR 2008 SUPREME COURT 435 #

2008 S C M R 435

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

COLLECTOR SALES TAX (EAST), KARACHI----Petitioner

Versus

CUSTOMS, EXCISE AND SALES TAX APPELLATE TRIBUNAL, KARACHI and another----Respondents

C.P.L.A. No.409-K of 2003, decided on 6th January, 2006.

(On appeal from order, of Sindh High Court, Karachi, dated 10-3-2003 passed in Special Sales Tax Appeal No.27 of 2002).

Constitution of Pakistan (1973)---

----Art. 185(3)---Limitation Act (IX of 1908), S.5---Appeal---Condonation of delay---Review petition---Assailing an order after availing review jurisdiction---Filing of review petition---Appellate jurisdiction of Supreme Court was invoked against the order passed by High Court on review petition---Plea . raised by authorities was that the appeal before Supreme Court was within time as they had bona fide availed remedy available in law---Validity---Period spent in pursuing review petition was not liable to exclusion while reckoning period of limitation for assailing basic judgment---Object behind filing petition for leave to appeal before Supreme Court was to call in question the correctness and validity of the initial judgment, which had attained finality by efflux of time---Valuable right had accrued in favour of private respondent; which could not be lightly disturbed and destroyed for the reasons that authorities were negligent in pursuing their remedy---Supreme Court, keeping in view the consistent practice and precedents, declined to condone the delay---Leave to appeal was refused.

Ghulam Hussain v. Kanwar Ashiq Ali Khan PLD 19809(sic) SC 198 rel.

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

Nemo for Respondent No. 1.

K.A. Wahab, Advocate-on-Record for Respondent No.2.

SCMR 2008 SUPREME COURT 437 #

2008 S C M R 437

[Supreme Court of Pakistan]

Present: Javed Iqbal, Nasir-ul-Mulk and Hamid Ali Mirza, JJ

ATTAULLAH KHAN----Petitioner

Versus

SHAFAULLAH and others----Respondents

Criminal Petition No.698-L of 2002, decided on 18th May, 2006.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 30-7-2002 passed in Criminal Appeals Nos.1499 and 1759 of 2000).

Constitution of Pakistan (1973)---

----Art. 185(3)---Criminal trial---Leave to appeal was granted to consider whether evidence which had come on record had been appreciated in its true perspective according to the settled norms of justice and well entrenched legal principles enunciated by the Supreme Court qua the safe administration of justice; whether High Court had recorded the acquittal on extraneous considerations having no nexus whatsoever with the evidence which had come on record; and whether it was obligatory to have incorporated all the minor details in the F.I.R. which altogether was a simple device to set the law in motion---Petition for leave to appeal was converted into appeal by the Supreme Court with the direction that appeal be fixed at an early date.

Hasnat Ahmed Khan, Advocate Supreme Court for Petitioner.

Kh. Sultan Ahmed, Senior Advocate Supreme Court for Respondents.

Mrs. Afshan Ghazanfar, A.A.-G., Punjab for the State.

SCMR 2008 SUPREME COURT 438 #

2008 S C M R 438

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

COLLECTOR OF CUSTOMS, PORT MUHAMMAD BIN QASIM----Petitioner

Versus

Messrs ZYMOTIC DIAGNOSTIC INTERNATIONAL, FA I SALABA D----Respondent

Civil Petition No. 434-K of 2005, decided on 14th October, 2005.

(On appeal from the order, dated 25-2-2004 passed by High Court of Sindh at Karachi in Special Customs Appeal No.6 of 2004).

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

---S. 25---Assessment of imported goods---Assessing Officer, authority of---Scope---Officer of customs department is authorized under S.25 of Customs Act, 1969, to reject declared value of consignment imported it Pakistan and to asses the same.

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

----S. 25---Declared value of imported goods, rejection of---Principles---For rejecting or refusing to accept value declared by consignee in respect of imported goods, concerned officer is required to give cogent, plausible and satisfactory reasons for non-acceptance of declared value and rejection thereof cannot proceed on whims or desire of officer of Customs department---Assessing Officer is required to point out some flaw or defect or such circumstances which create doubt with regard to veracity and correctness of declared value or that same had been under invoiced---In determining or assessing fair value or normal price of such imported consignment, concerned officer is tinder obligation to take into consideration all necessary factors and circumstances enumerated in S.25 of Customs Act, 1969, for such determination and assessment.

----Ss. 16, 25 & 31(1)(2)---Constitution of Pakistan (1973), Art.185(3)---Assessment of imported goods---Declared value, rejection of---Collector of Customs, on allegation of misdeclaration, ordered confiscation of goods allowing importer to redeem the same on payment of 50% fine equal to amount of duty and taxes---Customs, Excise and Sales Tax Appellate Tribunal allowed appeal filed by importer and set aside the order passed by Collector Customs, which order was maintained by High Court---Validity---Nothing was available on record to indicate that Customs Department had secured or had attempted to secure invoices from other importers who had imported identical or similar consignment in Pakistan with a view to show that price declared by such other importers greatly varied from price declared by importer---In absence of such an exercise, action in rejecting declared value of consignment would amount to an arbitrary and capricious exercise---Resort to S.25(7) of Customs Act, 1969, was to be made only when Customs Officer, who had to make assessment or determination of fair or normal value of consignment, was of the view that the same could not be determined in view of impossibility of procuring evidence---Order of Collector Customs was silent in such regard which was an important factor for drawing' an inference that no such attempt was made before passing the order---Customs officer dealing with the case proceeded in a perfunctory, whimsical and arbitrary manner and Customs, Excise and Sales Tax Appellate Tribunal was justified in setting aside the same---High Court also did not commit any illegality or infirmity in accepting order of the Tribunal and dismissing constitutional petition filed by authorities---Supreme Court declined to interfere with judgment passed by High Court---Leave to appeal was refused.

Akhlaq Ahmed Siddiqui, Advocate-On-Record for Petitioner.

Nemo for Respondent.

SCMR 2008 SUPREME COURT 442 #

2008 S C M R 442

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Abdul Hameed Dogar, JJ

DIVISIONAL FOREST OFFICER, AFFORESTATION DIVISION, SANGHAR AT KHIPRO----Petitioner

Versus

KHAN through Legal Heirs and 10 others----Respondents

Civil Petition No.594 of 2005, decided on 27th February, 2007.

(On appeal from the judgment, dated 27-5-2005 High Court of Sindh, Hyderabad Circuit, passed in R.A. No.21 of 1991).

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), S.79 & O.XXVII, R.1---Constitution of Pakistan (1973), Art.185(3)---Declaration of title---Suit by Government---Maintainability---Concurrent findings of facts by courts below---Divisional Forest Officer assailed the order of Revenue Authorities before civil court to seek declaration of title to the effect that suit-land was reserved for forest---Trial Court and Lower Appellate Court concurrently dismissed the suit and appeal filed by the Forest Officer---Judgments and decrees passed by two courts below were maintained by High Court in exercise of revisional jurisdiction---Validity---Expression of opinion affirming findings of courts below and discussion of legal position in judgment passed by High Court did not suffer from any legal infirmity or error of jurisdiction---Authorities failed to point out any misreading or non-reading of record by courts below occasioning any miscarriage of justice---Authorities could not explain as to how suit instituted by Divisional Forest Officer against officials and Provincial Government was maintainable at law in view of provisions contained in S.79 and O.XXVII, R.1, C.P.C. before civil court---Findings of fact recorded by Revenue Authorities were not open to scrutiny by civil court who however, did not find any defect of jurisdiction or illegality in exercise of jurisdiction by three forums in Revenue hierarchy---Supreme Court declined to interfere with judgment and decree passed by High Court---Leave to appeal was refused.

Muhammad Khan v. The Chief Settlement and Rehabilitation Commissioner, West Pakistan PLD 1962 SC 284 ref.

Dr. Qazi Khalid Ali, Additional Advocate-General, Sindh and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 27th February, 2007.

SCMR 2008 SUPREME COURT 446 #

2008 S C M R 446

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Falak Sher, JJ

FAROOQ HAMID and others----Petitioners

Versus

L.D.A. and others----Respondents

Civil Petition No.553-L of 2006, decided on 11th May, 2007.

Constitution of Pakistan (1973)---

----Art. 185(3)---High-rise buildings---Inspection of construction---Appointment of Commission---Such-like buildings, if not constructed under requisite checks and in conformity with laws and regulations governing the subject, could become death traps for hundreds of innocent and even un-concerned persons besides immeasurable loss to properties---Supreme Court appointed Commission to survey and inspect each and every high rise building i.e. building having three storeys or more whether under construction or even where construction was complete---Commission was to find out whether such buildings were constructed after sanctioning of plans for the purpose in accordance with law---Where plans had been sanctioned then Commission had to find out whether it had been so done after complying with all requisite requirements i.e. rules, regulations and law's governing subject including taking of steps to assess load-bearing capacity of soil, availability of necessary infrastructure to cater for impact created by such like buildings and measures to ensure structural stability.

Syed Mansoor Ali Shah, Advocate Supreme Court for Petitioners.

Malik Muhammad Qayyum, Advocate Supreme Court and Mian Qamar-uz-Zaman, Advocate Supreme Court for Respondent No.1.

Shahid Karim, Advocate Supreme Court for Respondents No.6.

Aftab Iqbal Chaudhry, A.-G. Punjab with Raja Saeed Akram, A.A.-G., Punjab on Court's call.

Masood Ahmed Qazi, Town Planning Officer with Hafiz Moeen, Director Town Planning, Mushtaq Daud, Consulting Engineer, Sardar Kamal, Town Nazim Iqbal Town, Muhammad Yousaf, Town Nazim Ravi Town, Faraz Ahmed Chaudhry, Town Nazim Gulberg, Tariq Sana Bajwa, Town Nazim Data Gang Bakhsh, Lahore, Anwar Rasheed; Addl. Secretary, Local Government and Khalid Abdul Rehman Architect on Courts notice.

SCMR 2008 SUPREME COURT 452 #

2008 S C M R 452

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

ABDUL GHAFOOR and others----Petitioners

Versus

KALLU and others----Respondents

Civil Petition No.3171-L of 2000, decided on 7th December, 2005.

(On appeal against judgment, dated 13-10-2000 passed by the Lahore High Court, Lahore in Civil Revision No.1443 of 1987).

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

----Art. 64---Relationship of plaintiffs and defendants with deceased lady as her daughters---Proof---Plaintiffs examined in court two witnesses, who belonged to the village, where deceased lady resided---Such witnesses stated that deceased lady had four daughters i.e. parties to the suit---Such witnesses were not sure about the names of forefathers of parties to the suit or deceased lady----Effect---Mere such fact would not be sufficient to disbelieve such witnesses.

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

----S. 115---Revision---Findings of fact by two courts below---Re-appreciation of evidence by High Court and reversal of such findings in absence of non-reading and misreading of material evidence by courts below---High Court had fallen in error in reversing such findings.

Muhammad Saleem Shahnazi, Advocate Supreme Court and Sh. Salahuddin, Advocate-on-Record for Petitioners.

Raja Mahmood Akhtar, Advocate Supreme Court and Haji M. Rafi Siddiqui, Advocate-on-Record for Respondents Nos.1 to 8.

Date of hearing: 7th December, 2005.

SCMR 2008 SUPREME COURT 454 #

2008 S C M R 454

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Falak Sher, JJ

IBRAR KHAN and others----Petitioners

Versus

SANAULLAH KHAN and others----Respondents

Civil Miscellaneous Appeals Nos.913, 915, and 917-L of 2005 and Civil

Petitions Nos.1502, 1503 and 1504-L of 2002, decided on 14th July, 2005.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 7-2-2002 passed in Civil Revisions Nos.1666, 1667 and 1668 of 2001).

Specific Relief Act (I of 1877)---

----S. 8---Limitation Act (IX of 1908), S.28---Constitution of Pakistan (1973), Art.185(3)---Suit for possession---Suits for possession filed by respondents were decreed by the Trial Court, but were dismissed by Appellate Court---High Court, however, accepting revision petition filed by respondents, set aside judgments and decrees passed by the Appellate Court and restored judgments and decrees passed by the Trial Court on the ground that petitioners had taken contradictory pleas with regard to ownership of land in dispute---Petitioners pleaded that they were the owners of land in dispute and also that they were in adverse possession of said land, and thus, respondents could not be permitted, in law to seek possession of said land---Validity---High Court had rightly found that petitioners had not been able to satisfy the conditions laid down by S.28 of Limitation Act, 1908 and even otherwise said provisions of law stood declared as un-Islamic---Sufficient evidence had been led by respondents, oral as well as documentary, to prove that land in dispute belonged to them---High Court on the basis of evidence on record, had rightly come to the conclusion that appellate judgment suffered from factual and legal infirmities, which could not be sustained---No exception could be taken to the impugned revisional judgment of the High Court.

Nazeer Ahmad Qureshi, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

SCMR 2008 SUPREME COURT 456 #

2008 SCMR 456

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan and Mian Hamid Farooq, JJ

Malik MUHAMMAD FAISAL and another----Petitioners

Versus

STATE LIFE INSURANCE CORPORATION through Chairman and 2 others----Respondents

Civil Petition No.372 of 2007, decided on 7th January, 2008.

(On appeal from the judgment, dated 28-2-2007 of the Lahore High Court, Lahore, passed in R.F.A. No.56 of 2001).

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

----Art. 185---Appellate jurisdiction of Supreme Court---New plea, raising of---Scope---Petitioners having failed to plead and raise a specific ground in their pleadings from the very inception of the case, were precluded from improving their case and to raise new ground of attack by departing from previous pleadings at the stage of appeal before Supreme Court.

Mst. Murad Begum and others v. Muhammad Rafiq and others PLD 1974 SC 322; Mst. Jannat Bibi v. Sher Muhammad and others 1988 SCMR 1696; Binyameen and 3 others v. Chaudhry Hakim and another 1996 SCMR 336; Anwar Ali and others v. Manzoor Hussain and another 1996 SCMR 1770; Muhammad Sarwar v. Zulfiqar and others 1998 SCMR 592 rel.

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

----Art. 114---Estoppel, principle of---Applicability---Pleadings---When petitioners did not raise a specific plea in the pleadings, they were estopped to agitate the same before Supreme Court.

----S. 45---Civil Procedure Code (V of 1908), O.XXXVII, R.1---Constitution of Pakistan (1973), Art. 185 (3)---Incorrect information to insurance company---Effect---Insurance cheques issued after the death of father of plaintiffs were not encashed on the ground that at the time of getting the insurance policy, father of plaintiff had given incorrect date of birth---Suit filed by plaintiffs was concurrently dismissed by Trial Court as well as by the High Court---Validity---Furnishing of incorrect date of birth by father of plaintiffs at the time of obtaining insurance policy was his conscious act---Father of plaintiffs deliberately made false statement and furnished incorrect particulars regarding his date of birth knowingly that it was 8-3-1940 and gave incorrect date only to defraud insurance company---Father of plaintiffs himself was a Sales Manager of the insurance company and was aware about ins and outs of the working of insurance company and was sufficiently equipped with the tricks of the trade---Both the courts had concurrently found that plaintiffs failed to establish that their father's date of birth was 8-3-1945 instead of 8-3-1940, at the time of obtaining insurance policy---Incorrect information and fake particulars were furnished and policy was obtained by practising fraud---Both the judgments were in accordance with evidence on record and in consonance with the law on the subject---Supreme Court declined to interfere with concurrent judgments and decrees passed by both the courts below---Leave to appeal was refused.

Mithoolal Nayak v. Life Insurance Corporation of India AIR 1962 SC 814; Life Insurance Corporation of India v. Nanaki Ammal AIR 1968 Mad. 324; Life Insurance Corporation of India, Bombay v. Parvathavardhini Ammal AIR 1965 Mad. 357; Smt. Benarsi Debi v. New India Insurance Co. Ltd. AIR 1959 Pat. 540; Lakshmi Insurance Co. Ltd. v. Bibi Padma Wati AIR 1961 Punjab 253 and State Life Insurance Corporation v. Mst. Begum Jan PLD 1983 SC 421 ref.

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

---Art. 129(e)---Date of birth---Entry in National Identity Card---Presumption---Ordinarily date of birth mentioned in National Identity Card is to be taken to be correct unless proved to the contrary by cogent and convincing evidence.

Abdul Khaliq and another v. Maulvi Muhammad Noor and others PLD 2005 SC 962 rel.

Kh. Muhammad Farooq, Advocate Supreme Court for Petitioners.

Nemo for Respondents Nos.1 and 2.

Zulfiqar Ahmad Abbasi Officer, U.B.L., Islamabad for Respondent No.3.

Date of hearing: 7th January, 2008.

SCMR 2008 SUPREME COURT 465 #

2008 S C M R 465

[Supreme Court of Pakistan]

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

Malik AHMAD KHAN----Petitioner

Versus

DISTRICT RETURNING OFFICER, JHANG and others----Respondents

Civil Petition No.1662-L of 2005, decided on 22nd August, 2005.

(On appeal from judgment, dated 5-8-2005 of the Lahore High Court, Lahore, passed in Writ Petition No.14308 of 2005).

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

----S. 152(1)(h)---Constitution of Pakistan (1973), Art.185(3)---Rejection of nomination papers because of removal of candidate from service on charge of inefficiency---Returning Officer accepted nomination papers of petitioner despite such charge against the petitioner---District Returning Officer on accepting appeal filed by the respondents, rejected nomination papers of petitioner and High Court maintained order of District Returning Officer---Validity---Mere removal of a person from service on the ground of inefficiency, would not involve the element of moral turpitude---High court as well as the District Returning Officer, could have not interfered in the order of the Returning Officer---Petition was converted into appeal and was allowed---Impugned judgment as well as the judgment of the District Returning Officer, was set aside---Petitioner was allowed to contest election for the office of General Councillor.

M. Ahsan Bhoon, Advocate Supreme Court and Haji M. Rafi Siddiqui, Advocate-on-Record for Petitioner.

Muhammad Akbar Tarar, Additional Advocate-General, Punjab and Dr. Danishwar Malik, D.A.-G. for Respondents.

Naveed Inayat Malik, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Respondent No.4.

SCMR 2008 SUPREME COURT 466 #

2008 S C M R 466

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

Dr. ASHFAQ AHMAD KHAN----Petitioner

Versus

Mst. SAMINA KHAN and others----Respondents

Civil Petition No.2631-L of 2003, decided on 11th October, 2005.

(On appeal from judgment, dated 19-9-2003 of the Lahore High Court, Lahore passed in Civil Revision No.1405 of 1996).

Specific Relief Act (I of 1877)---

----S. 42---Muslim Family Laws Ordinance (VIII of 1961), Ss.7 & 9--West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, R.16---Limitation Act (IX of 1908), Art.120---Suit for declaration---Certificate of Talaq issued on 16-6-1973 by Arbitration Council directed plaintiff to pay maintenance of $ 3,000 to defendant for Iddat period---Revision petition against Such certificate/orders filed in year 1986 was dismissed by Collector on 24-5-1988 as barred by time---Suit for declaration filed on 20-6-1989 challenging orders, dated 16-6-1973 and 24-5-1988---Limitation---Plaintiff had moved revision petition before Collector after 13 years---Orders of Arbitration Council and Collector were not void---Suit was dismissed as barred by time.

Khadim Nadeem Malik, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 11th October, 2005.

SCMR 2008 SUPREME COURT 468 #

2008 S C M R 468

[Supreme Court of Pakistan]

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

FAROOQ HAMID and others----Petitioners

Versus

L.D.A. and others----Respondents

Civil Petition No.553-L of 2006, decided on 19th July, 2006.

(On appeal from the judgment, dated 17-2-2006 of the Lahore High Court, Lahore, passed in F.A.O. No.324 of 2005).

(a) Pakistan Environmental Protection Act (XXXIV of 1997)---

---Preamble---Multi-storeyed building---Impact on environment---Scope---Provisions of Pakistan Environmental Protection Act, 1997, demand environmental impact assessment of each of such projects before any plan for construction of same could be sanctioned.

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

---Art. 185(3)---Construction of multi-storeyed buildings---Noncompliance of laws and regulations---Effect---Large number of multi-storeyed high-rise buildings were being constructed all over the city without ensuring compliance of security measures, proper supervision and adherence to law regulating the subject and the same were a serious hazard to safety of people and properties---Authority which was obliged to take steps in the matter, having failed to do so, Supreme Court was compelled to take appropriate steps in the larger interest of public who had a constitutional right to protection of their persons and properties---Supreme Court directed Provincial Government to immediately consider initiation of steps for making laws regarding multiple ownership i.e. protection of interests of owners and occupants of such-like high-rise buildings including steps for providing insurance cover for the owners and steps for maintenance of common facilities, therein---Supreme Court also directed Lahore Development Authority and District Government to also submit report regarding steps taken by them to equip themselves to meet any emergent situations vis-a-vis such-like buildings in case of fire or some such other accident or calamity afflicting the same.

Syed Mansoor Ali Shah, Advocate Supreme Court with M.A. Qureshi, Advocate-on-Record for Petitioners and Petitioner No.3 in person.

M. Ghani, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record Raja M. Abbas, D.J. Mian Ghulam Hussain, Director, Legal, L.D.A. Qazi Masood, Director Incharge, Town Planning L.D.A., Hafiz Moeen, Director, Town Planning, L.D.A., Khawaja Shaukat Jamal, C.M.P., L.D.A., M. Hussain Dispatcher, L.D.A., Khalid Abdul Rehman, Architect and Younis Upal Architect for Respondents Nos.1 to 4.

Khawaja M. Afzal, Advocate Supreme Court with Faiz-ur-Rehman, Advocate-on-Record for Respondent No.5.

Shahid Karim, Advocate Supreme Court with Mahmudul Islam, Advocate-on-Record for Respondent No.6.

Respondent No.7 in Person.

Aftab Iqbal Ch., Advocate-General, Punjab on Court's call.

SCMR 2008 SUPREME COURT 475 #

2008 S C M R 475

[Supreme Court of Pakistan]

Present: Falak Sher and Syed Jamshed Ali, JJ

MUHAMMAD HUSSAIN NAQVI and another----Petitioners

Versus

GOVERNMENT OF PUNJAB through Chief Secretary, Punjab, Lahore and others----Respondents

Civil Petition No.3037-L of 2002, decided on 30th November, 2005.

(Against the judgment, dated 13-6-2002 passed by Lahore High Court, Lahore in Writ Petition No.4298 of 2001).

Constitution of Pakistan (1973)---

----Arts. 128, 185(3) & 270-AA---Provisional Constitution Order (1 of 1999), Art.5-A [as added by Provisional Constitution Order (9 of 1999)]---Punjab Technical Education and Vocational Training Authority Ordinance (XLV of 1999), Preamble---Power of Governor to re-promulgate same Ordinance---Scope---Supreme Court granted leave to appeal to consider questions, that whether Art.128 of the Constitution empowered the Governor to re-promulgate same Ordinance when same had lapsed after statutory period of three months contemplated by Art.128, particularly when Provincial Assembly did not stand dissolved; that whether mere submission of Punjab Technical Education and Vocational Training Authority Ordinance (XXIV of 1999) to Provincial Assembly empowered Governor to re-promulgate same as Punjab Technical Education and Vocational Training Authority Ordinance (XLV of 1999); and whether Ordinance (XLV of 1999) stood perfected by virtue of Provisional Constitution Order (1 of 1999) read with Provisional Constitution Order (9 of 1999) and Art.270-AA of the Constitution.

The Collector of Customs, Karachi and others v. Messrs New Electronics (Pvt.) Limited and 59 others PLD 1994 SC 363 and Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others 1992 SCMR 602 ref.

Syed Shamim Abbas, Advocate Supreme Court for Petitioners.

M. Saleem Sehgal, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Respondent No.7.

Ch. M. Sadiq, Additional Advocate-General (on Behalf of Advocate-General, Punjab), Dr. Danishwar Malik, Deputy Attorney-General (on behalf of Attorney-General of Pakistan) on notice.

Ch. Aamir Rehman, Additional Advocate-General.

SCMR 2008 SUPREME COURT 478 #

2008 S C M R 478

[Supreme Court of Pakistan]

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

NIAZ AHMAD and another----Petitioners

Versus

Mian EJAZ HUSSAIN and others----Respondents

Civil Petition No.1581-L of 2005, decided on 15th August, 2005.

(On appeal from the judgment, dated 11-8-2005 of the Lahore High Court, Multan Bench Multan passed in Writ Petition No.4901 of 2005).

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

----S. 152(e)---Punjab Local Government Elections Rules, 2005, Rr.14 & 65---Constitution of Pakistan (1973), Arts.185(3) & 199---Election of Nazim and Naib Nazim---Academic qualification of candidate---Nomination papers, filing of---Dismissal of respondents appeal filed against acceptance of petitioner's nomination papers by Returning Officer---Constitutional petition by respondents raising objections that petitioner was not matriculate and he had disclosed in his nomination papers wrong date of his birth and parentage---High Court examined record in presence of petitioner's counsel and Controller of Examination found Matriculation Certificate not to be genuine---Petitioner's counsel on seeing such record "felt sorry for their client and could not utter even one word in his defence"; over which High Court accepted respondents' constitutional petition---Plea of petitioner that High Court in constitutional jurisdiction could not decide disputed question of fact, which could be decided by Election Tribunal .through election petition after recording of evidence---Validity---Respondents at pre-poll stage neither had opportunity to challenge proceedings nor could they prima facie ascertain on basis of record whether petitioner was qualified to contest election---Respondents could avail the available legal remedy---Impugned judgment was based on correct appreciation of facts and law---Plea regarding non-maintainability of constitutional petition would lose its significance in view of such statement of petitioner's counsel made before High Court---Supreme Court dismissed petition with special cost of Rs.10,000 while directing Board of Intermediate and Secondary Education to launch criminal proceedings against petitioner before police and the court receiving such challan would decide case on merits within specified time and remit copy of its judgment to Registrar for perusal by Supreme Court.

Saif-ul-Malook, Advocate Supreme Court and Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Petitioners.

Altaf Ibrahim Qureshi, Advocate Supreme Court with A.H. Masood for Respondent No.1.

Muhammad Hanif Khatana, Additional Advocate-General, Punjab for Advocate-General, Punjab.

SCMR 2008 SUPREME COURT 480 #

2008 S C M R 480

[Supreme Court of Pakistan]

Present: Javed Iqbal, Mian Shakirullah Jan and Nasir-ul-Mulk, JJ

KHAN MUHAMMAD----Petitioner

Versus

Mst. SURAYYA BIBI and others----Respondents

Civil Petition No.2301-L of 2004, decided on 11th July, 2005.

(On appeal from the order/judgment, dated 15-6-2002 passed by the Lahore High Court, Bahawalpur Bench in Writ Petition No.1940 of 2004/BWP).

(a) Guardians and Wards Act (VIII of 1890)---

----Ss. 17 & 25---Custody of minor---Contest between father and mother of minor---Entitlement---Prime consideration in such cases would always be welfare of minor---Right of father being natural guardian of minor would be subject to welfare of minor.

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

----Art. 185---Appeal to Supreme Court---Findings of fact recorded by Appellate Court and upheld by High Court---Validity---Such concurrent findings could not be reversed without any lawful justification.

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

Nemo for Respondents.

Date of hearing: 11th July, 2005.

SCMR 2008 SUPREME COURT 483 #

2008 S C M R 483

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Falak Sher, JJ

FAROOQ HAMID and others----Petitioners

Versus

L.D.A. and others----Respondents

Civil Petition No.553-L of 2006, decided on 26th July, 2007.

Pakistan Environmental Protection Act (XXXIV of 1997)---

----S. 12---Constitution of Pakistan (1973), Art.185(3)---Appellate jurisdiction---Multi-storeyed building, construction of---Impact on environment---No Objection Certificate---Authorities had withheld the Certificate on the ground that owner of building had not provided affidavit regarding any litigation which might be pending with respect to project in question---Validity---Authorities failed to explain to Supreme Court as to how, if at all, any litigation was pending would be a relevant factor for determining environmental impact of the project in question---Such matter could well be a valid consideration for the agency which had to give final permission/sanction for construction of building in question---Assessment of authorities revealed that there was no environmental impediment in construction of project---Authorities committed before Supreme Court to issue No Objection Certificate on the same day.

Syed Mansoor Ali Shah, Advocate Supreme Court for Petitioners.

Mian Qamar-uz-Zaman, Advocate Supreme Court with Hassan Nawaz Tarar Director-General, L.D.A., Mian Ghulam Hussain, Director Law, L.D.A.,. Qazi Masood, Town Planner, L.D.A., Hafiz Moeen, Director Town Planning; L.D.A., Ch. M. Akram, Director Town Planning, L.D.A., M. Iftikhar, Deputy Director, Town Planning, L.D.A., Tariq Mahmood Deputy Director Town Planning, L.D.A., Shakeel Anjum Minhas, Deputy Director Town Planning, L.D.A,, Asad-uz-Zaman, Assistant Director Town Planning, L.D.A.

Shahid Karim, Advocate Supreme Court for Respondent No.6.

Ch. Aamir Rehman, Additional Advocate-General, Punjab with Kamran Ali Khan, D.G. Environment Punjab, Muhammad Nawaz Manik, Deputy Director (Legal and Enforcement) E.P.A. Punjab and Syed Naseem-ur-Rehman, Deputy Director, Environment Impact Assessment Punjab, Lahore for the State.

Nasir Mahmood, S.H.O. Police Station Township, Asad Muzaffar, S.H.O., Police Line, Qila Gujjar Singh, Zahid Nawaz, S.H.O. Police Station Iqbal Town, Lahore on Court's notice (in contempt matter).

Ch. Tassaduq Hussain, D.I.-G. (Investigation), Lahore, Babar Bakht, S.P./Investigating Officer Police Station, Cantt. Lahore, Ch. Masood Aziz, S.P. (C.I.A.), Lahore, Amjad Qureshi, D.S.P. (C.I.A.), City Lahore, Hassan Askari, Inspector Incharge (Investigation), Factory Area, Lahore, Zaheer-ud-Din Babar, S.-I. (Investigation) Factory Area, Lahore.

Aftab Gut, Advocate Supreme Court, Mian Abdul Qadoos, Advocate Supreme Court with Aamir Masood Nasir, accused, Dr. M. Rafique Zaki, accused, Rehmat Ali, accused, Dr. Umer Shafique, accused, Sabar Ali, accused: Rana Amjad Ali, accused, Dr. Muhammad Shafique, accused, Humayun Rasheed, accused on Court's notice (in kidney case).

Amir Alam Khan, Advocate Supreme Court (on behalf of Ahad Plaza), Amir Alam Khan, Advocate Supreme Court with Naeem Ashraf Rana (on behalf of Salar Centre), Nasira Iqbal, Advocate Supreme Court (on behalf of 383 Garden Block), Shehram Sarwar Chaudhry, Advocate Supreme Court (on behalf of Ahsan Tower), Shahzad Shaukat, Advocate Supreme Court. (on behalf of Masood Hospital), Jehangir A. Jhoja, Advocate Supreme Court (on behalf of Kalama Tower), Malik Noor Muhammad Awan, Advocate Supreme Court with Haji Gul Rehman (on behalf of Rabi Centre) on Court's notice.

SCMR 2008 SUPREME COURT 488 #

2008 S C M R 488

[Supreme Court of Pakistan]

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

Malik MUHAMMAD HUSSAIN----Petitioner

Versus

DISTRICT RETURNING OFFICER and others----Respondents

Civil Petition No.2204 of 2005, deeided on 23rd August, 2005.

(On appeal from the judgment, dated 10-8-2005 passed by Lahore High Court, Rawalpindi Bench in Writ Petition No.2236 of 2005).

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

----S. 2(xi)---Punjab Local Government Elections Rules, 2005, Rr.12(4) & 14---Industrial Relations Ordinance (XCI of 2002), S.2(xxx)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Election for seat of workers---Nomination papers accompanied with declaration of assets showing petitioner as owner of 250 Kanals of land---Rejection of nomination papers by Returning Officer affirmed in appeal by Appellate Authority---Validity---Petitioner had not produced any proof that he was directly engage in work and dependent upon personal labour for his subsistence living---Petitioner had relied upon a certificate issued by a Brick. Company indicating him to be working as supervisor---Validity---Supervisor could not be treated as worker for purpose of Industrial Relations Ordinance, 2002---Returning Officer had jurisdiction to reject nomination papers of petitioner, whose appeal had been dismissed---High Court in constitutional jurisdiction could not interfere with concurrent findings of fact recorded by competent authorities having jurisdiction---Constitutional petition was dismissed in circumstances.

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

----Art. 199---Concurrent findings of fact recorded by competent authorities having jurisdiction---Validity---High Court in writ jurisdiction could not interfere with such findings.

----S. 2(xxx)---Person working as Supervisor in Bricks Company would not be treated as worker.

Sahibzada Ahmad Raza Khan Qasoori, Senior Advocate Supreme Court for Petitioner.

N.A. Butt, Advocate Supreme Court and Tanvir Ahmad Khan, Advocate-on-Record for Respondent No.3.

Dr. Danishwar Malik, D.A.-G., Muhammad Hanif Khatana, Additional Advocate-General and Muhammad Akbar Tarar, Additional Advocate-General on Court notice.

Date of hearing: 23rd August, 2005.

SCMR 2008 SUPREME COURT 491 #

2008 S C M R 491

[Supreme Court of Pakistan]

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

Mirza INAYAT BAIG represented, by Muhammad Aslam Baig and others----Petitioners

Versus

MUHAMMAD YOUNUS----Respondent

Civil Petition No.49-L of 2001, decided on 16th June, 2005.

(On appeal from judgment, of Lahore High Court, Lahore, dated 2-11-2000 passed in Civil Revision No.884 of 1988).

Specific Relief Act (I of 1877)---

----S. 42---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), Ss.2 & 3---Suit for declaration---Evacuee property consisted of shop on ground floor and house on upper floor---Settlement Department transferred house to plaintiff in year 1973 through PTD while shop was transferred to defendant---Plaintiff filed suit in year 1984 for declaring him owner of roof of shop for being part of his house and in his use as courtyard---Suit decreed by Trial Court was dismissed by Appellate Court and High Court---Validity---No evidence was available on record to show that roof of shop was declared by Settlement Department as courtyard of plaintiff's house---Plaintiff instead of taking matter with Settlement Department at relevant time or at any subsequent stage had filed suit seeking indirectly relief of modification of PTD from civil court after repeal of Evacuee Laws---Supreme Court dismissed petition is circumstances.

Nazir and others v. Syed Israr Ahmad and others 1981 SCMR 829 ref.

Rana Muhammad Anwar, Advocate Supreme Court for Petitioners.

Nemo for Respondent.

Date of hearing: 16th June, 2005.

SCMR 2008 SUPREME COURT 493 #

2008 S C M R 493

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Falak Sher, JJ

FAROOQ HAMID and others----Petitioners

Versus

L.D.A. and others----Respondents

Civil Petition No.553-L of 2006, decided on 30th July, 2007.

Lahore Development Authority Buildings Regulations, 1984---

----Regln. 10---Constitution of Pakistan (1973), Art.185(3)---Illegal construction---Plan not sanctioned in sixty days---Presumption---Building was raised by owner with three basements, one lower ground floor, one ground floor and ten floors above the ground---Entire construction was raised illegally without seeking any permission from authorities---Owner. of building did not provide structural calculations and structure stability certificate from any qualified structural engineer---Plea raised by owner of building was that when a plan was submitted with Lahore Development Authority seeking its approval for construction of a project and if such approval was neither granted nor refused within sixty days then builder was entitled to presume grant of such approval and was thereafter legally entitled to construct such project---Validity---In absence of such certificate stability of such huge structure was open to serious doubts---Nothing was on record to indicate that during construction of building any proper testing of structure at crucial stages of construction had ever been done because no certificate was. ever supplied by owner in such connection---Retaining walls of basements required extraordinary safety precautions, quality control and workmanship for stability and sustainability of structure at all times---Nothing was ever offered by owner to establish any such guarantee---Adequate fire-fighting arrangements' had to be made in building and there was no proof that the same had been done---Adequate and convenient access to building had to be provided to meet any emergency situation but there was no proof that such had ever been done---Supreme Court declined to permit such structure to stay as in given circumstances---Supreme Court observed that no responsibility could be taken for stability of such structure and consequently of lives of persons using the same or persons who would at any time be present in adjoining areas or adjacent properties---Owner of building had not only shown a brazen and determined disregard and contempt for laws regulating the subject but had also displayed a callous disrespect for human lives and public properties---Plea raised by owner of building had lost sight of the fact that even if Regln. No.10 of Lahore Development Authority Building Regulation, 1958, could be read for benefit of builder then such benefit was available only to a structure raised in accordance with law and not to something done in violation thereof---Supreme Court directed the authorities that illegally constructed structure, stability and safety of which was also not beyond serious doubts, be demolished at risk and cost of the owner.

Syed Mansoor Ali Shah, Advocate Supreme Court for petitioners.

Mian Qamar-uz-Zaman, Advocate Supreme Court With Arif Khan, Director-General, L.D.A., Mian Ghulam Hussain, Director Law, L.D.A. Qazi Masood, Town Planner L.D.A., Hafiz Moeen, Director Town Planning, L.D.A., Ch. M. Akram, Director Town Planning, L.D.A., M. Iftikhar, Deputy Director Town Planning, L.D.A., Tariq Mahmood, Deputy Director Town Planning, L.D.A., Shakeel Anjum Minhas, Deputy Director, Town Planning, L.D.A., Asad-uz-Zaman, Assistant Director Town Planning, L.D.A., M. Ashraf, Assistant Director Town Planning, L.D.A. for Respondent No.1.

Nemo for Respondent No.6.

Nemo on Court's notice (on behalf of Ahad Plaza).

Naeem Ashraf Rana (Owner of Salar Centre).

Mrs. Nasira Iqbal, Advocate Supreme Court (on behalf of 83-Garden Block).

Shahzad Shaukat, Advocate Supreme Court (on behalf of Masood Hospital).

Malik Muhammad Nawaz, Advocate Supreme Court (on behalf of Garden Towers).

SCMR 2008 SUPREME COURT 504 #

2008 S C M R 504

[Supreme Court of Pakistan]

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

Khaleefa MUHAMMAD MUNAWAR BUTT and another----Petitioners

Versus

Hafiz MUHAMMD JAMIL NASIR and others----Respondents

Civil Petition No.1583-L of 2005, decided 15th August, 2005.

(On appeal from the order, dated 8-8-2005 passed by the Lahore High Court, Lahore in Writ Petition No.14153 of 2005).

Punjab Local Government Elections Rules, 2005---

----R. 12(4)---Constitution of Pakistan (1973), Art.185(3)---Declaration of assets in nomination papers---Petitioner failed to declare amount received by him as a part payment of sale consideration of his property in pursuance of agreement, to be his assets in nomination papers at the time when the period for completion of sale was extended---Petitioner had contended that he had no obligation to disclose receipt of said amount in the column of nomination papers meant for declaration of assets because the property was owned by his father---Validity---Contention of petitioner was repelled, because said property stood in the name of petitioner and he himself entered into an agreement to sell same not as attorney of his father, but in his own rights, besides, till the completion of the sale, petitioner continued to be the owner of the property---Petitioner, in circumstances, was bound to have shown said amount as his asset in the column of nomination papers---High Court, had thus, rightly accepted constitutional petition of the respondent and no exception could be taken to the impugned judgment of the High Court.

Ehsanul Haque Chaudhry, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for petitioners.

Hafiz Abdur Rehman Ansari, Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record for Respondent No.1.

Muhammad Hanif Khatana, Additional Advocate-General for Respondents Nos.2 and 3.

SCMR 2008 SUPREME COURT 505 #

2008 S C M R 505

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

Malik AMIR AKBAR----Petitioner

Versus

Mian MURID HUSSAIN, ADDITIONAL DISTRICT JUDGE, LAHORE and others----Respondents

Civil Petitions Nos.1938-L, 1939-L of 2002 and 925-L of 2004, decided on 21st October, 2005.

(On appeal from the order, dated 21-5-2002 passed by the Lahore High Court, Lahore in Writ Petition No.19822 of 2001 etc.).

(a) Guardians and Wards Act (VIII of 1890)---

----Ss. 17 & 25---Constitution of Pakistan (1973), Art.185(3)---Custody of minor son and daughter---Dismissal of father's application for custody by courts below and High Court---Validity---Both children had reached age of maturity, thus, uprooting them at such stage would be improper particularly in absence of any infirmity in impugned judgment---Supreme Court dismissed petition in circumstances.

(b) West Pakistan Family Courts Ordinance (XXXV of 1974)---

----S. 5 & Sched.---Constitution of Pakistan (1973), Arts.185(3) & 199---Suit for recovery of maintenance of minor---Family Court decreed suit @ Rs.20,000 per month with 15% annual increase therein. in future---Appellate Court in appeal reduced monthly maintenance to Rs.15,000 with 10% annual increase therein in future, which judgment was upheld by High Court in constitutional petition---Plea of father was that mother of minor was in affluent circumstances, who should share maintenance---Supreme Court disposed of petition with consent of parties by fixing amount of maintenance @ Rs.10,000 per month with 10% annual increase therein from date of judgment of Family Court subject to deposit of arrears by father within two months in Family Court, otherwise judgment of Appellate Court would stand revived.

----S. 5 & Sched.---Constitution of Pakistan (1973), Arts.185(3) & 199---Suit for recovery of dower amount---Decree for amount of Rs.6,00,000 passed by Family Court was upheld by Appellate Court and in constitutional petition by High Court---Plea of ex-husband before Supreme Court was that he was not well off to pay decretal amount---Exwife on her own reduced her claim to Rs.4,50,000 subject to its deposit by ex-husband within two months with Family Court---Supreme Court with consent of counsel for parties modified decree in such terms with observations that on failure of ex-husband to do so, original decree of Rs.6,00,000 would stand revived.

Mian Allah Nawaz, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Petitioner (in C.Ps. Nos.1938 and 1939-L of 2002).

Mian Allah Nawaz, Advocate Supreme Court and Haji M. Rafi Siddiqui, Advocate-on-Record for Petitioner (in C.P. No.925-L of 2004).

Ch. Muhammad Saleem, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Respondents Nos.3 and 4 (in C.P. No.1938-L of 2002).

Ch. Muhammad Saleem, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Respondent No.3 (in C.P. No.1939-L of 2002).

Respondent No.1 in person (in C.P. No.925-L of 2004).

SCMR 2008 SUPREME COURT 508 #

2008 S C M R 508

[Supreme Court of Pakistan]

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

IMRAN NAWAZ and another----Petitioners

Versus

RASHID MAHMOOD and others----Respondents

Civil Petition No.1542-L of 2005, decided on 15th August, 2005.

(On appeal from the judgment, dated 5-8-2005 passed by the Lahore High Court, Lahore in Writ Petition No.14172 of 2005).

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

----S. 152(1)(r)---Anti-Terrorism Act (XXVII of 1997), Fourth Sched.---Local Government election---Election Commission of Pakistan issued directive to Returning Officers not to allow members of banned organizations to take part in election---Petitioner was reported by Home Department to be General Secretary of banned organization mentioned in Fourth Sched. to Anti-Terrorism Act, 1997---Validity---Petitioner was not eligible to take part in election as per provision of S.152(1)(r) of Punjab Local Government Ordinance, 2001.

Mrs. Nasira Iqbal, Advocate Supreme Court and Mian Attaur Rehman, Advocate-on-Record for. Petitioners.

Nazir Ahmad Ghazi, Advocate Supreme Court, Muhammad Hanif Khatana, Additional Advocate-General and A.H. Masood, Advocate-on-Record for Respondents.

Date of hearing: 15th August, 2005.

SCMR 2008 SUPREME COURT 510 #

2008 S C M R 510

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi, Ijaz-ul-Hassan Khan and Muhammad Qaim Jan Khan, JJ

COMMISSIONER OF INCOME TAX/WEALTH TAX, PESHAWAR---Appellant

Versus

HAROON BILOUR and 2 others---Respondents

Civil Appeals Nos.1280 to 1285 of 2007, decided on 12th November, 2007.

(On appeal from the judgment, dated 1-2-2007 passed by Peshawar High Court, Peshawar, in Tax Reference No.6 of 2005).

(a) Income Tax Ordinance (XXXI of 1979)---

----S. 13(1)(aa) & (b)---Transfer of Property Act (IV of 1882), Ss.53-A & 54---Registration Act (XVI of 1908), Ss. 17 & 49---Constitution of Pakistan (1973), Art.185(3)---Unregistered sale agreement executed by assessee regarding his property---Addition of such property in assessee's name for purpose of taxability under S.13(1)(aa) of Income Tax Ordinance, 1979---Assessee alleged such addition to be illegal as he was no more real owner of such property, which would be treated as buyer's property---Validity---Supreme Court granted leave to appeal to consider question as to whether such agreement would or would not create title, right or interest in property for purpose of taxability under S.13(1)(aa)(b) of Income Tax Ordinance, 1979.

(b) Income Tax Ordinance (XXXI of 1979)---

----S. 13(1)(aa) & (b)---Transfer of Property Act (IV of 1882), Ss.53-A & 54---Registration Act (XVI of 1908), Ss.17 & 49---Registered or unregistered sale agreement executed by assessee regarding his property---Addition of such property in assessee's name for purpose of taxability under S.13(1)(aa) of Income Tax Ordinance, 1979---Validity---Sale agreement would neither confer title nor be treated as title document---Such agreement would create legal right in favour of purchaser of property to claim its ownership, but could not confer title on him---Provision of S.53-A of Transfer of Property Act, 1882 would not automatically take effect to exclude operation of S.13(1)(aa) of Income Tax Ordinance, 1979 for purpose of assessment of income tax---Oral acknowledgement of title on basis of such agreement would not have implication of change of ownership---Without transfer of property in its purchaser's name in proper manner recognized in law, its status would remain unchanged and would be treated as property of original owner for all practical purposes including assessment of income tax.

Malik Itaat Hussain Awan, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant (in all cases).

Nemo for Respondents.

Date of hearing: 12th November, 2007.

SCMR 2008 SUPREME COURT 515 #

2008 S C M R 515

[Supreme Court of Pakistan]

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

KHAIR MUHAMMAD and others----Petitioners

Versus

NAWAB BIBI and others----Respondents

Civil Petition No.298-L of 2001, decided 23rd June, 2005.

(On appeal from the judgment, dated 16-11-2000 of the Lahore High Court, Bahawalpur Bench, passed in Civil Revision No.86-D of 1977).

Specific Relief Act (I of 1877)---

----Ss. 12 & 42---Civil Procedure Code (V of 1908), O.VI, R.17---Limitation Act (IX of 1908), Arts.113 & 120---Suit for declaration---Agreement by vendor to sell land in favour of plaintiff---Subsequent sale of land through mutation by attorney of vendor in favour of defendant---Suit for declaration by plaintiff that he was owner in possession of suit-land and such mutation was void---Dismissal of suit by Trial Court affirmed by Appellate Court and then in revision by High Court---Application by plaintiff before Supreme Court for allowing him to amend plaint and treat suit for declaration as suit for specific performance---Validity---Concurrent findings of fact of three courts were that such mutation was valid and plaintiff was not owner of land---Proposed amendment would change complexion and character of suit for declaration---Parties had been litigating for last 37 years---Plaintiff had called in question mutation of sale after 6 years---Supreme Court dismissed amendment application and main petition in circumstances.

Ch. Inayat Ullah, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

SCMR 2008 SUPREME COURT 517 #

2008 S C M R 517

[Supreme Court of Pakistan]

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

ZAFAR IQBAL GONDAL and another----Petitioners

Versus

DISTRICT RETURNING OFFICER and others----Respondents

Civil Petition No.1650-L of 2005, decided on 18th August, 2005.

(On appeal from the order, dated 10-8-2005 passed by the Lahore High Court, Lahore in Writ Petition No.14409 of 2005).

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

----S. 152(1)(h)-Constitution of Pakistan (1973), Art.185(3)---Disqualification of candidate to contest election on ground of his dismissal from police service---Plea of petitioner candidate was that he having been dismissed from service in 1995, after lapse of considerable 'period of about 10 years, he would not be disqualified to contest election---Contention of counsel for respondent was that petitioner, who was found guilty of cheating during his service as A.S.-I. Police, by competent Authority as he produced a false certificate of F.A. at the time of joining Police Department, was disqualified to contest the election---Contentions raised by both the sides required to be examined---Leave to appeal was granted by Supreme Court with direction to Returning Officer concerned to include the name of petitioner in the list of contesting candidates for the office of Nazim and complete pre-poll process before Polling Schedule enabling petitioner to participate in the election in accordance with law.

Muhammad Shabbir Abbasi v. Abdur Rashid Moughal 1984 CLC 270 and Khan alias Haji Khan v. The State 1991 PCr. LJ 323 rel.

Fauzi Zaffar, Advocate Supreme Court and Sh. Salah-ud-Din, Advocate-on-Record for Petitioners.

Muhammad Hanif Khatana, Additional Advocate-General for Respondents Nos.1 and 2.

Malik Noor Muhammad Awan, Advocate Supreme Court and Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Respondent No.3.

Muhammad Yawar Ali, D.A.-G. on Court Notice.

SCMR 2008 SUPREME COURT 519 #

2008 S C M R 519

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

LIAQAT ALI----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, CHUNIAN, DISTRICT KASUR and others----Respondents

Civil Petition No.266-L of 2005, decided on 19th October, 2005.

(On appeal from judgment, dated 7712-2004 passed by the Lahore High Court, Lahore in Writ Petition No.10885 of 2000).

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

----S. 5 & Sched.---Constitution of Pakistan (1973), Art.185(3)---Suit for restitution of conjugal rights---Petitioner filed a suit for restitution of conjugal rights against respondent claiming her to be his wife, whereas respondent filed a suit for jactitation of marriage against petitioner---Family Court, after consolidating both the suits, dismissed the suit of petitioner and decreed the one filed by the respondent and that order had attained finality up to the High Court---During proceedings respondent lady having died, petitioner had argued that notwithstanding the death of respondent, High Court was required to decide constitutional petition on merits as important questions of law were involved---Validity---Respondent having passed away during pendency of constitutional petition filed by petitioner relief of conjugal rights could not be granted---Deceased lady having not left any property behind her, High Court was justified in dismissing constitutional petition as well as review applications on account of death of deceased lady and holding that right of petitioner to sue, would not survive consequent upon the death of lady---Impugned orders not suffering from any legal infirmity, petition for leave to appeal against said orders, having no merits, was dismissed.

Abdul Rehman Madni, Advocate Supreme Court and A.H. Masood, Advocate-on-Record for Petitioner.

Respondents in person.

SCMR 2008 SUPREME COURT 521 #

2008 S C M R 521

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J. Muhammad Moosa K. Leghari and Mian Hamid Farooq, JJ

MUHAMMAD NAZIR KHAN----Petitioner

Versus

AHMAD and 2 others----Respondents

Civil Petition No.482 of 2007, decided on 31st December, 2007.

(On appeal from the judgment, dated 27-2-2007 of the Lahore High Court, Lahore passed in Civil Revision No.852 of 2002).

(a) Administration of justice---

----Findings attaining finality---Principles---When finding of Trial Court on an issue was not challenged either through appeal or cross-objections, such findings on the issue in question would attain finality.

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

----Art. 114---Estoppel, principle of---Applicability---Though some other contentions were raised before Lower Appellate Court but no plea regarding lack of jurisdiction was raised at the time of arguing appeal before that forum---Effect---Petitioner had acquiesced in the matter and thus was .precluded and estopped from raising plea of jurisdiction before Supreme Court, when such finding had attained finality.

----S. 36---Jurisdiction of civil courts---Principles---When action of authorities was without jurisdiction and void, plaintiff was within his rights to maintain suit before civil court---Bar of S.36 of Colonization of Government Lands (Punjab) Act, 1912 would not apply and civil court could competently proceed to entertain and adjudicate the suit.

Alam Sher through Legal Heirs v. Muhammad Sharif and 2 others 1998 SCMR 468; Hamid Hussain v. Government of West Pakistan and others 1974 SCMR 356 and Muhammad Jamil Asghar v. Improvement Trust PLD 1965 SC 698 rel.

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

----S. 42---Colonization of Government Lands (Punjab) Act (V of 1912), S.10---Constitution of Pakistan (1973), Art.185(3)---Cancellation of allotment---Natural "justice, principles of---Applicability---Land allotted to plaintiff was resumed and there was no evidence / document on record which could show that before resuming land from plaintiff, any notice was given to him or he was heard by Collector at any point of time---Suit filed by plaintiff 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 its revisional jurisdiction--Validity---If there was no requirement for issuance of statutory or mandatory notice, even then plaintiff was at least entitled to a notice and personal hearing in view of principles of natural justice---After allotment of land favouring plaintiff, certain rights had accrued in his favour and he could not be deprived of those rights without affording him opportunity of hearing---Lower Appellate" Court as well as High Court had rightly concluded that plaintiff before resumption of land was entitled to a notice and he had been condemned unheard---Judgment passed by High Court did not suffer from any legal infirmity---Matter was decided not only on the basis of evidence available on record but same was also in consonance with law on the subject---Supreme Court declined to interfere in concurrent findings arrived at by lower Appellate Court and High Court---Leave to appeal was refused.

Raja Imran Aziz, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 31st December, 2007.

SCMR 2008 SUPREME COURT 525 #

2008 S C M R 525

[Supreme Court of Pakistan]

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

Syed ISHFAQ HUSSAIN SHAH and others----Petitioners

Versus

DISTRICT JUDGE with the powers of District Returning Officer, Lahore and others----Respondents

Civil Petitions Nos.1588-L and 1589-L of 2005, decided on 16th August, 2005.

(On appeal from judgment, dated 10-8-2005 of the Lahore High Court, Lahore passed in Writ Petitions Nos.14373 and 14367 of 2005).

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

----S. 163---Constitution of Pakistan (1973), Art.185(3)---Ineligibility for re-election---Leave to appeal was granted to examine; that as to whether in pursuance of S.163 of the Punjab Local Government Ordinance, 2001 (before amendment), petitioners were eligible to contest the election, because according to counsel for respondent, petitioners were debarred to contest re-election and not General Elections of Local Councils; and that as to whether despite omitting/repealing the provisions of S.163 of the Punjab Local Government Ordinance, 2001, petitioners would remain debarred to contest election on account of the effect of repealing---Petitioners were allowed to contest election.

Dr. Mohy-ud-Din Qazi, Advocate Supreme Court with C.M. Lateef, Advocate-on-Record for Petitioners (in both C.Ps.).

Muhammad Shehzad Shaukat, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Respondents Nos.3 (in C.P. No.1588-L of 2005) and Respondents Nos.3 and 4 (in C.P. No.1589-L of 2005).

Muhammad Hanif Khatana, Additional Advocate-General, Punjab for Advocate-General Punjab (in both C.Ps.)

SCMR 2008 SUPREME COURT 527 #

2008 S C M R 527

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir, Bhandari, JJ

ALTAF AKHTER ALVI----Petitioner

Versus

Mst. SADAF ARA and others----Respondents

Civil Petition No.1047-L of 2005, decided on 6th October, 2005.

(On appeal from judgment, dated 30-5-2005 of the Lahore High Court, Lahore passed in Writ Petition No.9290 of 2005).

Guardians and Wards Act (VIII of 1890)---

----S. 25---Constitution of Pakistan (1973), Art.185(3)---Custody of minors---Application filed by ex-wife of the petitioner, under S.25 of Guardians and Wards Act, 1890 for custody of minors was disposed of by the Guardian Judge/Family Court in view of compromise between the parties and it was directed that permanent custody of minors would remain with the petitioner who would hand over minors on each Sunday to the ex-wife for visitation---Appeal filed by petitioner against judgment of the Family Court was partly allowed by the Appellate Court below by making some changes in respect of visitation rights of respondent and judgment of Appellate Court below was upheld by High Court---Plea of petitioner was that as ex-wife had contracted a second marriage with a stranger, she had lost her right of Hizanat or even visitation---Validity---Mother of minors, could not be denied minimum right of access to her minor children nor she be considered like an alien enemy qua them---Appellate Court below adopted a very sensible approach by permitting the mother to meet the minors on the first Sunday of each month---Order passed by the Appellate Court below was upheld by the High Court, being just and fair to which no exception could be taken---Impugned judgment of the High Court, not suffering from any legal infirmity so as to warrant interference by the Supreme Court---Petition was dismissed.

Sh. Anwarul Haq, Advocate Supreme Court and Tanvir Ahmad Advocate-on-Record for petitioner.

Nemo for Respondents.

Date of hearing: 6th October, 2005.

SCMR 2008 SUPREME COURT 529 #

2008 S C M R 529

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Nasir-ul-Mulk, JJ

MUAZ AHMAD----Petitioner

Versus

Haji MUHAMMAD RAMZAN and others----Respondents

C.P.L.A. No.1658 of 2005, decided on 23rd January, 2006.

(On appeal from the order of the Lahore High Court, Lahore, dated 7-4-2005 passed in R.P. No.2818 of 2004).

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code, (XLV of 1860), Ss.406, 409, 509/34---Constitution of Pakistan (1973), Arts.199 & 185(3)---Quashing of F.I.R.---F.I.R. got registered on complaint of petitioner against respondents, was quashed by the High Court in constitutional petition filed by the respondents---High Court proceeded to direct quashing of F.I.R. without realizing that complainant who was arrayed as party to said constitutional petition, was neither put on notice nor called upon to explain his point of view---Application for review of order moved by the petitioner having been dismissed, petitioner had sought leave to appeal against said both orders---High Court had committed serious error of law by passing au adverse order without affording an opportunity of hearing to the petitioner, who was an aggrieved person before the law enforcing agencies---Petitioner, in that manner, was seriously prejudiced and the principles of natural justice appeared to have been offended---Petition was converted into appeal and while allowing same, both orders were set aside by the Supreme Court and case was remanded to the High Court for hearing of constitutional petition afresh strictly on merits.

Ch. M. Abdus Saleem, Senior Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioner.

Rab Nawaz Noon, Senior Advocate Supreme Court and Abdul Hamid Rana, Advocate Supreme Court for Respondents Nos.1 and 2.

Date of hearing: 23rd January, 2006.

SCMR 2008 SUPREME COURT 531 #

2008 S C M R 531

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Ch. Ejaz Yousaf, JJ

Human Right Case No.5818 of 2006 in Re: (action on Press Clipping)

(a) Civil service---

----Allotment of plots in Housing Schemes by Government to its employees---Interference in such matter by courts---Scope.

The Government is always empowered to grant reasonably appropriate privileges to its employees within the scope of law and its authority, but notwithstanding such power, the Government is not under legal or constitutional obligation to establish Housing Schemes and provide residential or commercial plots to its employees and similarly it is not a constitutional or legal right of any person in the service of Pakistan to claim such a privilege in addition to the terms and conditions of his service provided under the law. This is, however, prerogative of the Government to grant certain privileges to a particular category of its employees on the basis of reasonable classification, and the law is that the Courts should not ordinarily interfere in the matters falling within the exclusive domain of Government or nullify its legal and constitutional authority. The courts may not undo the action taken by the Government in its discretion, unless there is infringement of a legal right, rather the Courts in the light of aim and object of the action should broadly regard the authority confided in the Government.

(b) Discretion---

----Discretionary power conferred on government should be exercised reasonably and subject to existence of essential conditions, required for exercise of such powers within the scope of law.

----Meaning.

"Discretion" means a, power or a right conferred upon an authority by law, and when applied to the public functionaries means to exercise power according to the judgment and conscience of such public authorities, but the discretion cannot be given a settled or established meaning, which can be invariably applied in any situation, rather the exercise of discretion is judged in each case on the basis of its own particular facts.

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

----Arts. 184(3) & 199---Constitutional jurisdiction of superior Courts---Scope---Discretionary order of public functionary---Interference in such order by superior Courts---Scope.

The exercise of discretion in discharge of public duty in a manner, which is considered beyond the scope of law or for extraneous consideration is no doubt an abuse of discretionary power and exercise of this power in a manner which exceeds the bonds of authority, may not be immune from the scope of judicial review of the superior Courts in their constitutional jurisdiction, but if the power is exercised in just and proper manner within the bonds of law without infringement of any legal right, the same may not be questionable.

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

----Art. 184(3)---Public interest litigation-Suo motu constitutional jurisdiction under Art.184(3) of the Constitution---Scope---Allotment of plots in C.D.A. Scheme by Federal Government to its senior officers subject to fulfilment of eligibility criteria---Validity---Grant of such privilege by government to its employees was neither illegal nor beyond its authority---Interference in such matter by court would not be legal in absence of very strong and sound reasons or infringement of a legal right---Supreme Court dropped suo motu action taken of such matter.

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

----Arts. 184(3) & 199---Public interest litigation---Enforcement of fundamental rights and any legal right---Remedy.

Supreme Court, in exercise of the powers under Article 184(3) of the Constitution, may interfere in public interest' litigation only in exceptional cases of public importance relating to the enforcement of fundamental rights enshrined in Part-II of Chapter-I of the Constitution, and similarly in case of enforcement of any legal right, the provision of Article 199 of the Constitution can be invoked by an aggrieved person.

Raja Abdul Ghafoor, Advocate-on-Record on behalf of FGEHF and C.D.A. on Court call.

Shahid Hameed; Director-General, FGEHF.

Malik Zafar Abbas, Law Officer, FGEHF.

Tariq Mehmood Khan, Director, C.D.A.

Iftikhar Anjum, S.O. (Lit-IV) Estt. Div.

Mumtaz Ahmed Sheikh, Member (Legal) Federal Board of Revenue.

SCMR 2008 SUPREME COURT 539 #

2008 S C M R 539

[Supreme Court of Pakistan]

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

SHARAFAT ALI and another----Petitioners

Versus

D.R.O. and others----Respondents

Civil Petition No.1559-L of 2005, decided on 18h August, 2005.

(On appeal from the judgment, dated 8-8-2005 passed by the Lahore High Court, Lahore in Writ Petition No.14398 of 2005).

Punjab Local Government Elections Rules, 2005---

----R. 4---Constitution of Pakistan (1973), Art.185(3)---Election of Union Council---Electoral rolls---Petitioner, who was contesting election of Union Council, his name was included in the electoral rolls of 2002 for the general election, but his name was not incorporated in the electoral rolls of 2000-2001 prepared for the Local Council elections---Name of petitioner, however, found mentioned in the electoral rolls meant for Local Council Elections in Union Councils---Petitioner had been non-suited to contest the election solely for the reason that his name was not available in the list of electoral roll meant for election of local bodies of Union Council---Petitioner was allowed to contest election, with direction to Returning Officer of Union Counsel to include name of petitioner in the list of contesting candidates for the election of office of Nazim and Naib Nazim---Pre-roll process would be completed before the polling enabling petitioner to participate in the election.

Ahsan Bhoon, Advocate Supreme Court and Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Petitioners.

Manzoor Qadar, Advocate Supreme Court and A.H. Masood, Advocate-on-Record for Respondents.

Muhammad Hanif Khatana, Additional Advocate-General and Muhammad Yawar Dy.A.-G. on Court notice.

Date of hearing: 18th August, 2005.

SCMR 2008 SUPREME COURT 541 #

2008 S C M R 541

[Supreme Court of Pakistan]

Present: Falak Sher and Ch. Ijaz Ahmad, JJ

MUHAMMAD TAHIR and others----Petitioners

Versus

NAZEER AHMED----Respondent

C.P. No.245-L of 2006, decided on 13th April, 2006.

(On appeal from the judgment, dated 12-12-2005 passed by Lahore High Court, Lahore in Civil Revision No.1129 of 1998).

Specific Relief Act (I of 1877)---

----S. 54---Constitution of Pakistan (1973), Art.185(3)---Suit for permanent injunction---Petitioners had assailed concurrent findings of fact recorded by the three courts decreeing respondent's suit for permanent injunction qua the spelt out land---Leave to appeal was being sought wherein, responding to query qua the petitioners' title, their counsel had referred to the letter alleged to have been issued by the Settlement Commissioner---Veracity of said letter, prima facie, seemed to be not free from doubt because on the date in question office of Settlement Commissioner had ceased to exist by repeal of Settlement Laws---Said letter referred to Member Board of Revenue by name while describing the subject which did not bear even any number or date---Said document merely offered an alternative land with certain conditions, title whereto, had not matured into reality in the shape of permanent transfer deed---Counsel for petitioners could not dislodge the reasons recorded by the courts.---Petition being devoid of any substance, was dismissed.

Jehangir A. Jhoja, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

SCMR 2008 SUPREME COURT 543 #

2008 S C M R 543

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Faqir Muhammad Khokhar and Mian Shakirullah Jan, JJ

COMMISSIONER OF INCOME TAX, KARACHI----Appellant

Versus

Messrs OCCIDENTAL PETROLEUM PAKISTAN LTD.----Respondent

Civil Appeals Nos.1089 to 1095 of 2002, decided on 23rd February, 2006.

(On appeal against the judgment, dated 7-2-2002 passed by the High Court of Sindh, Karachi in I.T.As. Nos.631-637 of 1991).

Income Tax Ordinance (XXXI of 1979)---

----S. 163(2)---Constitution of Pakistan (1973), Art.185---Appeal to Supreme Court---Avoidance of double taxation and prevention of fiscal evasion---Counsel for department/appellant had contended that the High Court had pronounced the judgment on the basis of an earlier judgment of the same court, without taking into consideration the effect of subsection (2) of S.163 of Income Tax Ordinance, 1979, whereas points involved in both the cases were distinct from each other---Prima facie, distinction existed in both the cases and the High Court could have disposed of those cases independently, taking into consideration the effect of S.163(2) of the Income Tax Ordinance, 1979 as well as other provisions of law---Appeals were allowed, impugned judgment was set aside and cases were remanded to the High Court for disposal of appeals afresh, expeditiously.

Muhammad Ilyas Khan, Advocate Supreme Court for Appellants.

Nemo for Respondents.

Raja Muhammad Irshad, D.A.-G. on Court notice.

SCMR 2008 SUPREME COURT 544 #

2008 SCMR 544

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan Khan and Muhammad Moosa K, Leghari, JJ

FEDERATION OF PAKISTAN through Secretary, Government of Pakistan Establishment Division, Islamabad and another

Versus

Flt. Lt. FARRUKH RASHID (R) and another

Civil Petition No.645 of 2007, decided on 4th December, 2007.

(On appeal from the judgment, dated 8-5-2007 of the Federal Service Tribunal, Islamabad passed in Appeal No.1410(R)(C.S.) of 2005).

Service Tribunals Act (LXX of 1973)---

----S. 4---Appeal---Termination of service---Vacancies in Pakistan Police Service reserved for Armed Forces Officers---Inter Services quota required one seat for PAF, one for Navy and rest for Army---Merit list of PAF Officers prepared by Public Service Commission showed appellant at Serial No.2, while another Officer at Serial No. 1 was denied appointment after decision of High Court, thus, appellant stood at the top of qualified PAF Officers---Appointment of appellant as Assistant Superintendent of Police (B-17) after completion of training---Termination of appellant's service on basis of decision of High Court in favour of competitor for Navy seat---Validity---Appointment of appellant had neither been challenged by other competitors nor been made upon any future development---Competitor for Navy seat, who was not issued offer of appointment, had approached High Court, but became successful in getting judgment in his favour from Supreme Court---Competitor for Navy seat had agitated his own right of appointment based on principle of quota policy, which had nothing to do with appellant's appointment against seat reserved for PAF Officers---Vested right was created in favour of the appellant and principle of locus poenitentiae was in favour of appellant---Appellant deserved reinstatement both on ground of legitimate expectation and constitutional right of equality---Appellant was reinstated in service in circumstances.

Pakistan International Airlines Corporation v. Inayat Rasool 2003 SCMR 1128 rel.

Ms. Nahida Mehboob Ellahi, D.A.-G., M.S. Khattak, Advocate-on-Record along with Ali Abid, JS Estb. Division, Syed Asghar Ali Shah, D.S. Estb. Division, Ch. Mubarik Ali, DS (Legal) FPSC and M. Nawaz, Director for petitioners.

Muhammad Munir Peracha, Advocate Supreme Court for Respondent No.1.

Nemo for Respondent No.2.

SCMR 2008 SUPREME COURT 551 #

2008 S C M R 551

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza, M. Javed Buttar and Nasir-ul-Mulk, JJ

MUHAMMAD RAFIQUE and others----Petitioner

Versus

PAKISTAN TELECOMMUNICATION COMPANY LTD. and others----Respondents

Civil Petitions Nos.565-K to 569-K and 828-K of 2003, decided on 13th May, 2005.

Service Tribunals Act (LXX of 1973)--

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Appeal to Service Tribunal---Limitation---Appeals filed by the petitioners were dismissed by the Service Tribunal on the ground that same were time-barred as same were not filed within 120 days from the date of termination order---Departmental appeals filed by petitioners before competent Authority were not responded and no decisions were communicated to petitioners---Authority, on reminder, informed the petitioners that their departmental appeals were rejected---Appeals filed by the petitioners before the Service Tribunal within 30 days from receipt of communication that departmental appeals of petitioners, were rejected, could not be said to be time-barred---Finding of the Tribunal that appeals filed by the petitioners were time-barred thus, could not be sustained---Petitions were converted into appeals and allowed, impugned orders passed by the Tribunal were set aside and appeals were remanded to the Tribunal for decision of the same on merits after hearing the parties.

Syed Ishfaq Haider, Advocate Supreme Court for Petitioners.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondents.

SCMR 2008 SUPREME COURT 552 #

2008 S C M R 552

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Karamat Nazir Bhandari, JJ

Haji PEER BAKHSH----Petitioner

Versus

UNION COUNCIL BOLHARI and others----Respondents

Civil Petition No.366-K of 2005, decided on 29th September, 2005.

West Pakistan Civil Services Pension Rules---

----Constitution of Pakistan (1973), Art.212(3)---Civil Service---Appeal filed by petitioner before Service Tribunal was time-barred---Contention raised by petitioner that petitioner, a temporary employee of Union Council, on completion of 10 years service superannuated, would be entitled to the pensionary benefits under West Pakistan Civil Services Pension Rules, required consideration---Leave to appeal, was granted in circumstances.

Ansari Abdul Latif, Advocate Supreme Court and Ahmedullah Faruqi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

SCMR 2008 SUPREME COURT 553 #

2008 S C M R 553

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Syed Jamshed Ali, JJ

SHAUKAT ALI----Petitioner

Versus

THE STATE and others----Respondents

Criminal Petition No.539-L of 2006, decided on 12th July, 2006.

(On appeal from judgment/order, dated 31-5-2006 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.5704/CB of 2006).

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 156-B---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Constitution of Pakistan (1973), Art.185(3)---Bail, grant of---Contention was that the very arrest of the accused and investigation of the case by the Sub-Inspector of Police was illegal and violative of the provisions of S.156-B, Cr.P.C. whereunder only Superintendent of Police was competent to do so---Law Officer conceded the point stating that the said Sub-Inspector had' already been suspended from service and that it would be just and proper if bail was allowed to accused---Accused was admitted to bail in circumstances.

Rai Muhammad Tufail Khan Kharal, Advocate Supreme Court and Ch. Muhammad Anwar Khan, Advocate-on-Record for Petitioner.

Aftab Iqbal Chaudhry, Advocate-General, Punjab for Respondents.

SCMR 2008 SUPREME COURT 554 #

2008 S C M R 554

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan and Mian Hamid Farooq, JJ

MAJID MAHMOOD----Petitioner

Versus

MUHAMMAD SHAFI----Respondent

Civil Review Petition No.167 of 2007 in Civil Appeal No.1517 of 2005 and Civil Review Petition No.168 of 2007 in Civil Appeal No.1518 of 2005, decided on 15th January, 2008.

(For review of judgment, dated 9-3-2007 passed by this Court in Civil Appeals Nos.1517 and 1518 of 2005).

(a) Review---

----Scope---Case cannot be re-opened on merits in review---Scope of review is very limited and review petition is not maintainable on those points which have been decided one way or the other---Any dispute which has already been resolved cannot be reviewed.

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

----Art. 188---Supreme Court Rules, 1980, O.XXVI, R.1---Review of Supreme Court judgment---Principles---Fact not considered---Effect---Petitioner sought review of the judgment on the ground that while rendering judgment, Supreme Court did not consider a fact---Validity---Exercise of review jurisdiction did not mean a re-hearing of the matter and as finality was attached to the order, a decision even though it was erroneous per se, would not be a ground to justify its review---In keeping with the limits of review jurisdiction, it was futile to reconsider the submissions, which converge on merits of the decision---Before an error could be a ground for review, it was necessary that it must be one which was apparent on the face of record---Error must be so manifest and so clear that no court could permit such an error to remain on record---Error might have been of fact or of law but it must be an error which was self-evident and floating on the surface and did not require any elaborate discussion or process of ratiocination---If court had taken a conscious and deliberate decision on a point of law or fact while disposing of a petition or an appeal, review of such judgment or order could not be obtained on the ground that the court took an erroneous view or that another view on reconsideration was possible---Review also could not be allowed on the ground of discovery of some new material, if such material was available at the time of hearing of appeal or petition but not produced---Contentions of petitioner in the present case, were nothing but reiteration of the same grounds, which were urged at the hearing of appeal but were rejected by Supreme Court after consideration---Supreme Court did not allow the petitioner to raise the contentions again in review proceedings---Petitioner could not obtain rehearing of appeal in the garb of proceedings for review---Petition was dismissed.

Allah Ditta and others v. Mehrban and others 1992 SCR 145; Zafar Iqbal v. Allotment Committee of Municipal Committee, Mirpur and others 1994 SCR 157 and Sh. Mehdi Hassan v. Province of Punjab through Member, Board of Revenue and 5 others 2007 SCMR 755 rel.

Ch. Muhammad Rafique Warraich, Advocate Supreme Court for Petitioner (in both cases).

Mehdi Khan Chohan, Advocate Supreme Court for Respondent (in both cases).

Date of hearing: 15th January, 2008.

SCMR 2008 SUPREME COURT 558 #

2008 S C M R 558

[Supreme Court of Pakistan]

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

Mst. SURRYA BIBI----Petitioner

Versus

MUHAMMAD MANSHA and another----Respondents

Criminal Petition No.45-L of 2004, decided on 19th October, 2005.

(On appeal from the order, dated 18-12-2003 passed by the Lahore High Court in Criminal Appeal No.1786 of 2003).

Penal Code (XLV of 1860)---

----S. 324---Constitution of Pakistan (1973), Art.185(3)---Order of suspension of sentence set aside---Within twenty days of the unconditional withdrawal and dismissal of his first petition for suspension of sentence accused respondent moved a fresh application in High Court for the same purpose without disclosing any fresh ground and without even giving the required certificate at the foot of the application that a petition had been earlier moved for the same relief and had been withdrawn after arguing the matter at length---Fresh application had been allowed by High Court through impugned order, which had led to the inevitable impression that the previous application had been concealed and withheld from the Court, which by itself was sufficient to deprive the accused of the benefits manoeuvred in such a manner---Even on merits the reasons which weighed with High Court in suspending the sentence of accused were open to serious exception and it could not be decided at such stage that whatever had been stated by the Investigating Officer was admissible at all or whether the same was inadmissible being hearsay and that the statement in question of the Investigating Officer was not obliging concessions---High Court had pre-judged lots of matters which could not be done in such a cursory manner---Order of suspension of sentence passed in favour of accused was recalled in circumstances.

Hasnat Ahmed Khan, Advocate Supreme Court along with Faiz-ur-Rehman, Advocate-on-Record for Petitioner.

Muhammad Hanif Khatana, Additional Advocate-General, Punjab for the State.

Ch. Riyasat Ali, Advocate Supreme Court for Respondents.

SCMR 2008 SUPREME COURT 560 #

2008 S C M R 560

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, M. Javed Buttar and Ch. Ijaz Ahmed, JJ

MUHAMMAD SHARIF and others----Petitioners

Versus

COLLECTOR LAND ACQUISITION and others----Respondents

Civil Petition No.1768 of 2004, decided on 29th June, 2006.

(Against the judgment, dated 1-7-2004 passed by Peshawar High Court, Peshawar in Writ Petition No.957 of 1999).

Land Acquisition Act (I of 1894)---

----Ss. 4, 18 & 54---Constitution of Pakistan (1973), Art.185(3)---Acquisition of land---Determination of amount of compensation---Petitioners filed appeal in acquisition matter praying for enhancement of compensation---Petitioner, during pendency of said appeal, made application for treating said appeal partly as constitutional petition as well---Single Judge of High Court converted said appeal into a constitutional petition, but same was dismissed by Division Bench of the High Court vide impugned judgment---With the consent of parties, petition was converted into appeal by the Supreme Court and same was allowed---Impugned judgment passed by a Division Bench of High Court, was partly set aside and modified to the extent of determination of question of enhancement of compensation---Constitutional petition was reconverted into appeal, which would be deemed to be pending for its disposal by the High Court on merit and in accordance with law only with regard to quantum of compensation of the land.

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

Khalid Saleem, District Collector for Respondent No.1.

Zia-ud-Din Siddique, Legal Advisor for Respondent No.2.

M. Bilal, Senior Advocate Supreme Court for Respondent No.3.

Sabahuddin, Advocate Supreme Court for Respondent No.4.

SCMR 2008 SUPREME COURT 562 #

2008 S C M R 562

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J. Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

SULTAN through L.Rs. and others----Petitioners

Versus

SAID KHAN and another----Respondents

Civil Review Petition No.2 of 2005, decided on 23rd January, 2008.

(On review from the order/judgment, dated 6-12-2004 of this Court passed in Civil Petition No.1841 of 2002).

Constitution of Pakistan (1973)---

----Art. 188---Supreme Court Rules, 1980, O.XXVI, R.1---Review of Supreme Court judgment---Scope---No error or mistake on the face of record or ground constituting sufficient reason within the purview of review were pointed out in the impugned judgment rather contention of the petitioner was that Supreme Court had not appreciated the real facts and circumstances of the case which resulted in miscarriage of justice---Held, scope of review being limited same did not permit rehearing of the matter---Petition for review, was dismissed accordingly.

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

Gul Zarin Kiani, Advocate Supreme Court for Respondents.

SCMR 2008 SUPREME COURT 563 #

2008 S C M R 563

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J. Muhammad Moosa K. Leghari and Ch. Ejaz Yousaf, JJ

SUO MOTU CASE NO.21 OF 2007 In the matter of

C.M.A. No.3034 and Suo Motu Case No.21 of 2007, decided on 2nd January, 2008.

(Clash of Lawyers, media persons and members of the Civil Society with Police/Law enforcing agencies outside Supreme Court Building and in front of Election Commission of Pakistan on 29-9-2007).

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

----S. 4---Government Servants (Efficiency and Discipline) Rules, 1973, R.5(1)---ESTACODE (2000 Edition), Sr. No.85(2)(b) and Sr. No.126---Constitution of Pakistan (1973), Art.184(3)---Suo motu proceedings---Suspension of civil servants---Expiry of three months---Effect---Supreme Court, in exercise of suo motu powers, directed the authorities to initiate disciplinary proceedings against civil servants who were put under suspension---Despite lapse of three months neither the proceedings were. completed nor the matter was placed before competent, authority for approval to continue suspension---Validity---Continuation of forced leave or suspension beyond a period of three months, according to Sr. No.85(2)(b) of ESTACODE, 2000 Edition, again required approval of the "authority" on expiry of period of three months---Government servant who was placed under suspension or forced to proceed on leave would be deemed to have been reinstated unless before expiry of period of three months approval of "authority" to the Government servant continuing to be under suspension or on leave was obtained---No such approval of competent authority having been obtained, such suspension order could not continue any further---Disciplinary proceedings, under Sr. No.126 of ESTACODE (2000 Edition), against Government 'servant placed under suspension, should have been finalized within two months of the date of, suspension---If in any case it was not possible to finalize departmental proceedings against Government servant within two ,months, the matter should have been reported to Secretary Establishment giving reasons for not completing the proceedings---Similar provision was stated in R.5(1) of Government Servants (Efficiency and Discipline) Rules, 1973---Supreme Court directed the concerned authorities to examine case of civil servants in the light of relevant provisions of law and to take appropriate action---Miscellaneous application was disposed of accordingly.

Mian Munawar-ud-Din v. Federation of Pakistan PLD 1979 Lah. 699 and Nazir Ahmed v. Pakistan and 11 others PLD 1970 SC 453 ref.

Mujeeb-ur-Rehman, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Applicants (S. Morawet Ali Shah, I.-G. and Muhammad Naeem Khan, S.S.P.)

Raja M. Bashir, Advocate Supreme Court for (Muhammad Ali, D.C.)

Malik Muhammad Qayyum, Attorney-General for Pakistan, Ms. Nahida Mehboob Ellahi, D.A.-G. Qazi M. Amin, Additional Advocate-General Punjab, Raja Saeed Akram, A.A.-G. Punjab and Ms. Viqar-un-Zeb, J.S. M/o Interior on Court notice.

SCMR 2008 SUPREME COURT 568 #

2008 S C M R 568

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J. Muhammad Moosa K. Leghari and Ch. Ejaz Yousaf, JJ

SAEED PERVAIZ----Petitioner

Versus

Syed MASOOD HASSAN----Respondent

Civil Petition No.1498-L of 2007, decided on 2nd January, 2008.

(On appeal from the judgment, dated 13-9-2007 passed by the Lahore High Court, Lahore, in S.A.O. No.8 of 2007).

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Civil Procedure Code (V of 1908), O.XVII, R.3---Constitution of Pakistan (1973), Art.185(3)---Ejectment of tenant---Striking off defence---Failure to produce evidence---Despite many opportunities provided by Rent Controller to tenant he did not produce his witnesses, therefore, his defence was struck oft' and eviction order was passed---Lower Appellate Court as well as High Court also maintained the eviction order passed by Rent Controller---Plea raised by tenant was that his defence was struck off without complying with the parameters as mentioned in O.XVII, R.3, C.P.C.---Validity---Number of opportunities were provided to tenant to produce evidence but he failed---Case was, therefore, finally fixed for his evidence on which date again tenant did not bother to produce evidence or to appear himself in court---Instead, affidavits of some of the witnesses were filed and that too by some other person, thus, defence of tenant was rightly struck off by Rent Controller---Supreme Court declined to interfere with the judgment passed by High Court---Leave to appeal was refused.

Barkat Ali v. Muhammad Ehsan and another 2000 SCMR 556 ref.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Civil Procedure Code (V of 1908), Preamble---Ejectment of tenant---Provisions of Civil Procedure Code, 1908---Applicability---Though provisions of Civil Procedure Code, 1908, in stricto senso are not applicable, yet equitable principles thereof can be applied to rent proceedings as well---Rent Controller is empowered to adopt procedure of his choice which has to be legal.

Khadim Mohyuddin v. Rehmat Ali PLD 1965 SC 459; Ayub Khan and another v. Fazal Haq and others PLD 1976 SC 422; Muhammad Saleh v. Muhammad Shafi 1982 SCMR 33; Abdul Majid v. Syed Azhar Ali Shah and others PLD 1985 SC 191; Shaikh Muhammad Ibrahim v. Syed Abdul Aziz Shah and others 1990 SCMR 542; Muhammad Tariq Khan v. Khawaja Muhammad Javad Asami and others 2007 SCMR 118; Messrs Bambino Ltd. v. Messrs Selmore International Ltd. and another PLD 1983 SC 155; Sh. Abdul Hameed's case PLD 1994 Kar. 379; Atta-ul-Haq's case 1992 MLD 1409; 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 1960 Dacca 452 and Mst. Fatima Bibi's case 1991 SCMR 1031 ref.

Islam Ali Qureshi, Advocate Supreme Court for Petitioner.

A.H. Bhatti, Advocate Supreme Court for Respondent.

Date of hearing: 2nd January, 2008.

SCMR 2008 SUPREME COURT 572 #

2008 S C M R 572

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi, Muhammad Qaim Jan Khan and Zia Perwez, JJ

PROVINCE OF PUNJAB through the Secretary Irrigation and Power Department, Lahore and 2 others----Petitioners

Versus

Syed MUQARAB ALI and 4 others----Respondents

Civil Appeals Nos.1920 and 1921 of 2006, decided on 14th December, 2007.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 13-9-2005 passed in Regular First Appeals Nos.420 and 247 of 2003).

Land Acquisition Act (I of 1894)---

----Ss. 4 & 18---Qanun-e-Shahadat (10 of 1984), Art. 56---Constitution of Pakistan (1973), Art.185---Acquisition of land---Compensation---Determination---Potential. value---Relevant fact---Possession of land in question was taken on 12-3-1985 and award was announced . on 17-5-2000, in which compensation was fixed at the rate of Rs.9,419.20 per acre---Referee Court, in reference filed by landowners, enhanced the compensation to R.5,000 per Marla, which was further enhanced by High Court to Rs.7,500 per Marla---Validity---Authorities had no solid ' reasons as to why award was kept pending for 15/16 long years and thus, depriving landowners from the fruits of their land without any cogent reasons---Landowners produced oral as well documentary evidence to prove commercial nature of the acquired property-Price of adjacent land of same nature lying in same locality could be taken into consideration which was not contrary to provisions of Art.56 of Qanun-e-Shahadat, 1984---Authorities, by not objecting to similar award for another project, in a way admitted the stance of landowners---No illegality, irregularity or any sort of misreading or non-reading of evidence was apparent from judgment of High Court and instead the judgment was based on sound and plausible reasons---Supreme Court declined to interfere with the judgment and decree passed by High Court---Appeals were dismissed.

Syed Najam-ul-Hassan Kazmi, Advocate Supreme Court for Appellants.

Gul Zarin Kiani, Advocate Supreme Court for Respondents.

Date of hearing: 14th December, 2007.

SCMR 2008 SUPREME COURT 575 #

2008 S C M R 575

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Sakhi Hussain Bokhari, JJ

Mirza SHAHJEHAN HAIDER GORGANI----Petitioner

Versus

CHAIRMAN, FEDERAL LAND COMMISSION, ISLAMABAD and others----Respondents

Civil Review Petition No.60-L of 2003 in Civil Petition No.1219-L of 1999, decided on 30th January, 2008.

(On review of this Court's order, dated 18-2-2003 passed in Civil Petition No.1219-L of 1999).

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

----Art. 188---Supreme Court Rules, 1980, O.XXVI, R.1---Civil Procedure Code (V of 1908), O. XLVII, R.1---Review of Supreme Court judgment---Review of order passed in petition for leave to appeal---Ground raised in review was not raised by petitioner while arguing petition for leave to appeal---Effect---Such ground would not constitute either an error apparent on the face of record or discovery of new and important facts and evidence on record, which were sine qua non for exercise of review jurisdiction by Supreme Court---Petitioner could not raise such ground in review petition.

Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another PLD 1997 SC 865; Mst. Kalsoom Malik and others v. Assistant Commissioner and others 1996 SCMR 710 and Daewoo Corporation v. Zila Council, Jhang and 2 others 2004 SCMR 1213 rel.

(b) Land Reforms Regulations, 1972 [M.L.R. 115]---

----Paras. 4 & 29---Land Reforms Regulations (Validation of Orders) Ordinance (XXIX of 1978), S.2---Order passed on 23-5-1999 by Chairman, Federal Land Commission singly---Validity---Order of Chairman or Member of Commission, if passed singly before 25-6-1978, stood validated by Land Reforms Regulations (Validation of Orders) Ordinance, 1978---Federal Government through Notification No.R-1972/LR-1-78, dated 23-9-1978 had authorized Chairman and each member of the Commission to act severally---Such order, dated 23-5-1999 was validly passed in view of Notification, dated 23-9-1999.

Muhammad Hussain Munir and others v. Sikandar and others PLD 1974 SC 139 ref.

Mst. Tayyaba Khanam and others v. Chairman Federal Land Commission and others 1984 SCMR 1110 rel.

Abdur Rashid Qureshi, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

SCMR 2008 SUPREME COURT 583 #

2008 S C M R 583

[Supreme Court of Pakistan]

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

PUNJAB SMALL INDUSTRIES CORPORATION (PSIC)----Appellant

Versus

Sh. ABDUS SALAM and others----Respondents

C.P.L.A. No.2041-L of 2005, decided on 27th October, 2005.

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

----S. 9----Constitution of Pakistan (1973), Arts.199 & 212(3)---Transfer of deputationist---Order of deputation reserved right to Government to withdraw/transfer deputationist at any time without assigning any reason---High Court admitted constitutional petition and suspended transfer order---Supreme Court granted leave to appeal to consider contentions of authority that High Court had no jurisdiction to entertain constitutional petition for enquiring as to why, without assigning any reason, deputationist had been transferred; that such matter fell within exclusive jurisdiction of Service Tribunal; and that High Court could not assume jurisdiction for granting relief to an individual employee.

Fauzia Siddique Qureshi v. Secretary, Ministry of Education, Islamabad and others 2004 SCMR 521 and Government of the Punjab and others v. Muhammad Zafar Bhatti and others PLD 2004 SC 317 ref.

(b) Civil service---

----Transfer of employee---Stay order in such case ordinarily would not be granted by courts.

Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139 and Secretary Education, N.-W.F.P. Peshawar and 2 others v. Mustamir Khan and another 2005 SCMR 17 fol.

Jari Ullah Khan, Advocate Supreme Court and M. Yaseen Chughtai, Advocate-on-Record for Appellant.

Nemo for Respondents.

SCMR 2008 SUPREME COURT 586 #

2008 S C M R 586

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Javed Iqbal, JJ

COMMISSIONER OF INCOME TAX, COMPANIES-IV, KARACHI and others----Appellants

Versus

Messrs PAKISTAN ELECTRIC FITTINGS MANUFACTURING CO. LTD. through Directors----Respondent

C.P.LA. No. 113-K of 2000, decided on 7th July, 2000.

(On appeal from the judgment, dated 23-12-1993/3-1-2000 of the High Court Sindh, Karachi, passed in Income Tax Appeal No. 158 of 1998).

Income Tax Ordinance (XXXI of 1979)---

----Ss. 136 & 156---Income Tax Appellate Tribunal Rules, 1981, R. 20---Constitution of Pakistan (1973), Art. 185(3)---Order of Tribunal, dated 5-5-1996 dismissing appeal not challenged by way of reference---Tribunal dismissed application filed under R.20 of Income Tax Appellate Tribunal Rules, 1981 against its such order---Tribunal dismissed application for rectification of its said order---Appeal to High Court on 16-6-1996 against said order---Acceptance of appeal by High Court despite objections as to maintainability of appeal and bar of limitation were raised---Validity---Supreme Court granted leave to appeal to consider questions, whether appeal to High Court filed on 16-6-1998 against original order, dated 5-5-1996 was time-barred and could be lawfully maintained; whether High Court failed to take into consideration various provisions of the statute and judgments rendered by Supreme Court on question of law involved; and whether impugned judgment could be sustained in law in view of peculiar facts and circumstances of the case.

Shaikh Haider, Advocate Supreme Court and S.M. Abbas Advocate-on-Record for Petitioners.

Nemo for Respondents.

SCMR 2008 SUPREME COURT 589 #

2008 S C M R 589

[Supreme Court of Pakistan]

Present. Falak Sher and Syed Jamshed Ali, JJ

MEMBER (COLONIES) BOARD OF REVENUE, PUNJAB, LAHORE and others----Petitioners

Versus

MUHAMMAD SHAFI and others----Respondents

Civil Petitions Nos.745, 776, 777, 783, 981 to 985, 1036, 1061, 1081, 1271, 1410, 1859, 1860, 2076 to 2083-I. and 2086-L of 2005, decided on 17th November, 2005.

(a) West Pakistan Board of Revenue Act (XI of 1957)---

----S. 8---Suo motu powers of review are not available to the Board of Revenue.

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

----S. 30---West Pakistan Board of Revenue Act (XI of 1957), S.8---Board of Revenue permitted grant of proprietary rights to lessees under Lambardari grants---Board of Revenue subsequently, in exercise of suo motu powers of review, by issuing general letter recalled such orders of grant---High Court in exercise of constitutional jurisdiction set aside such orders---Validity---Suo motu powers of review were not provided in West Pakistan Board of Revenue Act, 1957---High Court had set aside a patently illegal order of Board of Revenue---No case was made out for interference by Supreme Court in appeal---Supreme Court disposed of appeals with observations that Board of Revenue, if felt the necessity to reconsider its orders granting such proprietary rights, might do so after examining each case individually with notice to the lessees.

Mehreen Zaibun Nisa v. Land Commissioner, Multan and others PLD 1975 SC 397 rel.

M. Saleem Sehgal, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioners (in C.Ps. Nos.745, 776, 777, 783, 1061, 1081, 1271, 1859 and 1860-L of 2005).

Ch. Muhammad Sadiq Additional Advocate-General, Ch. Aamer Rehman, Additional Advocate-General, Rao Muhammad Yousaf Khan Advocate-on-Record, for Petitioners (in C.Ps. Nos.981 to 985, 1036, 1410, 2076 to 2083 and 2086-L of 2005).

Malik Abdul Sattar Chughtai, Advocate Supreme Court and Syed Fayyaz Ahmad Sherazi, Advocate-on-Record for Respondents Nos.1 to 14 (in C.F. No.1859-L of 2005) and for Respondent No.1 (in C.P. 783-L, 982 and 983-L of 2005).

Mian Ghulam Hussain, Advocate Supreme Court and Ch. Muhammad Anwar Khan, Advocate-on-Record for Respondent No.1 (in C.Ps. Nos.1410, 2076-2083-L of 2005 and C.P. No.2086-L of 2005).

SCMR 2008 SUPREME COURT 593 #

2008 S C M R 593

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J. Abdul Hameed Dogar and Saiyed Saeed Ashhad, JJ

COMMISSIONER OF INCOME TAX/WEALTH TAX----Appellant

Versus

SARHAD DEVELOPMENT AUTHORITY, PESHAWAR----Respondent

Civil Appeals Nos. 1498 to 1500 of 2005, decided on 22nd May, 2006.

(On appeal against the judgment, dated 9-9-2001 passed by the Peshawar High Court, Peshawar in F.A.O. Nos. 175-177 of 2000).

Income Tax Ordinance (XXXI of 1979)---

----S. 19---Income from property---Liability to tax---Decision of appeal by High Court while relying upon judgment of Indian Supreme Court reported as 1991 PTD 286---Validity---Question discussed in said judgment was different from issue involved in appeal before High Court i.e. whether tax would be charged on total lease money of each plot received in advance in a year or same would be charged proportionately on each plot per year in respect of plot leased out by assessee---Supreme Court set aside impugned judgment and remanded case to High Court for its decision afresh in accordance with law.

K.S. Krishna Rao v. Commissioner of Income Tax Andhra Pradesh 1991 PTD 286 distinguished.

Malik Muhammad Nawaz, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Petitioner.

Abdul Latif Yousafzai, Advocate Supreme Court and Imtiaz Ali, Advocate Supreme Court for Respondents.

SCMR 2008 SUPREME COURT 594 #

2008 S C M R 594

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J. Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

Messrs SARHAD BEVERAGES (PVT.) LTD.----Petitioner

Versus

SARHAD DEVELOPMENT AUTHORITY through Chairman and another----Respondents

C.P.L.A. No.603.of 2007, decided on 29th January, 2008.

(On appeal from the judgment, dated 16-4-2007 in Civil Revision No.255 of 2007 passed by the Peshawar High Court, Peshawar).

Constitution of Pakistan (1973)---

----Art. 185(3)---Petition for leave to appeal---Reasons weighed with High Court in impugned judgment fully conformed to requirement of law---Such judgment would not call for interference by Supreme Court in exercise of its constitutional jurisdiction---Supreme Court refused to grant leave to appeal.

Malik Muhammad Nawaz, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioner.

Muhammadullah Khan, Advocate Supreme Court and M. Ameen Manager (Industrial Estate) for Respondents.

SCMR 2008 SUPREME COURT 598 #

2008 S C M R 598

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi and Nasir-ul-Mulk, JJ

Mian TARIQ JAVED----Petitioner

Versus

PROVINCE OF PUNJAB through Chief Secretary, Government of Punjab, Lahore and 2 others----Respondents

Civil Appeal No.203 of 2005, decided on 1st December, 2005.

(On appeal from the judgment, dated 13-7-2002 passed by Punjab Service Tribunal, Lahore in Appeal No.2802 of 2001).

(a) Punjab Removal from Service (Special Powers) Ordinance (IV of 2001)---

----S. 3---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.23---Constitution of Pakistan (1973), Arts.25 & 212(3)--Removal from service of Deputy District Attorney after 14 years---Conversion of such penalty by Service Tribunal into compulsory retirement---Supreme Court granted leave to appeal to consider as to whether department discriminated petitioner because of his two colleagues appointed in the manner petitioner was appointed, were still in service; and that one of such colleagues, who was not domiciled of the Province of Punjab had been appointed on relaxing condition by Government.

(b) Punjab Removal from Service (Special Powers) Ordinance (IV of 2001)---

----S. 3---Punjab Civil Servants Act (VIII of 1974), S.23---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.23---Constitution of Pakistan (1973), Arts.25 & 212(3)---Removal from service after 14 years---Petitioner being Deputy District Attorney was imposed such penalty, while others appointed as Assistant District Attorney were retained in service---Conversion of such penalty by Service Tribunal into compulsory retirement---Validity---According to rules, 100% posts of Assistant District Attorney were required to be filled through direct recruitment on basis of recommendations of Public Service Commission---Posts of Deputy District Attorney were required to be filled with ratio of 50% through direct recruitment and 50% by promotion---No distinction existed in appointment as Deputy District Attorney or Assistant District Attorney---Competent authority having not taken action against petitioner at any stage prior to promulgation of Punjab Removal from. Service (Special Powers) Ordinance, 2000 had impliedly regularized his service---Retracing steps after 14 years on promulgation of Punjab Removal from Service (Special Powers) Ordinance, 2000 was neither in good faith nor bona fide---Punjab Removal from Service (Special Powers) Ordinance, 2000 would not apply retrospectively to past and closed transactions---Persons placed in similar situation in alike circumstances could not be dealt with differently in departure to the rule of fairness and equal treatment---Supreme Court accepted appeal, set aside impugned judgment as well as order of removal of petitioner from service and directed his reinstatement in service without back-benefits.

----S. 3---West Pakistan General Clauses Act (VI of 1956), S.20---Appointment in violation of rules---Validity---Such appointment would be against the policy of law---Despite such legal defect in initial appointment, principle of locus poenitentiae would not permit competent authority to undo same after a long time and remove incumbent from service.

Appellant in person.

Ms. Afshan Ghazanfar, A.A.-G. for Respondents.

SCMR 2008 SUPREME COURT 602 #

2008 S C M R 602

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Abdul Hameed Dogar and Saiyed Saeed Ashhad, JJ

FEDERATION OF PAKISTAN through Secretary Finance, Finance Division, Islamabad and others----Appellants

Versus

Messrs ZAMAN COTTON MILLS LTD.----Respondent

Civil Appeals Nos. 1819 of 2000, 678 to 683 of 2003, decided on 26th April, 2006.

(On appeal from the judgments, dated 29-4-1999 and 1-11-2000 of the Peshawar High Court, Peshawar passed in Writ Petition No.1404 of 1999, 58, F.A.Os. Nos. 60, 63, 59, 62 and 64 of 2600).

Income Tax Ordinance (XXXI of 1979)---

---Ss. 80-CC & 80-D---Protection of Economic Reforms Act (XII of 1992), Ss. 2(1)(b) & 6---Exemption from minimum tax under S.80-C of Income Tax Ordinance, 1979---Entitlement---Establishment of industries in tax exempted area in pursuance of S.R.O. 60(I)/87, dated 20-1-1987---Incentive for investment granted to assessee in pursuance of S.R.O. 1283(I)/90, dated 13-12-1990 as provided in Second Sched. to S.6 of Protection of Economic Reforms Act, 1992---Whether assessee fulfilled conditions of S.R.O. 1283(I)/90 being a question of fact, would be decided by authority concerned while keeping in view provisions of S.2(b) read with Second Sched. to S.6 of Protection of Economic Reforms Act, 1992 read with Ss. 80-CC & 80-0 of Income Tax Ordinance, 1979 and observations made by Supreme Court in PLD 1997 SC 582, para. 54.

Messrs Elahi Cotton Mills Ltd, and others v. Federation of Pakistan through Secretary M/O Finance, Islamabad and 6 others PLD 1997 SC 582 rel.

Muhammad Ilyas Khan, Senior Advocate Supreme Court and Ch. Akhtar. Ali, Advocate-on-Record for Appellants (in C.A. No. 1819 of 2000).

Malik Muhammad Nawaz, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-Record for Appellants (in C.As. Nos. 678 to 683 of 2003) with Mumtaz Ahmed, Member (Legal (C.B.R).

Raja Muhammad Akram, Senior Advocate Supreme Court for Respondents (in C.A. No. 1819 of 2000).

M. Sardar Khan Senior Advocate Supreme Court for Respondents (in C.As. Nos. 678 to 683 of 2003).

SCMR 2008 SUPREME COURT 605 #

2008 S C M R 605

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Mian Shakirullah Jan, JJ

SAEED AHMED----Petitioner

Versus

TEHSIL MUNICIPAL ADMINISTRATION through Nazim and others----Respondents

Civil Petition No.451 of 2005, decided on 8th March, 2005.

(On appeal from the judgment, dated 1-2-2005 passed by the Lahore High Court, Multan Bench in Writ Petitions Nos.4061 and 4144 of 2004).

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

----Rr. 4, 11 & 12---Collection of fee on transfer of immovable property, contract for---Award of such contract by Tehsil Nazim and Tehsil Municipal Administration through negotiation with contractor---Validity---Such contract lacked transparency and fairness---Rights for collection of fee on transfer of immovable property had been leased out to contractor without faithful observance of codal formalities---Awarding of contract in such manner was without jurisdiction and without lawful authority.

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

Nemo for Respondents.

SCMR 2008 SUPREME COURT 608 #

2008 S C M R 608

[Supreme Court of Pakistan]

Before Iftikhar Muhammad Chaudhry, C.J, Faqir Muhammad Khokhar and M. Javed Buttar, JJ

COMMISSIONER OF INCOME TAX/WEALTH TAX, COMPANIES ZONE, ISLAMABAD----Petitioner

Versus

Miss NAHEED KHAN----Respondent

Civil Petition No.1300 of 2003, decided on 22nd December, 2005.

(On appeal from judgment dated 28-3-2003, passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Tax Appeal No.139 of 2001).

Income Tax Ordinance (XXXI of 1979)---

----S.136---Limitation Act (IX of 1908), S.5---Constitution of Pakistan (1973), Art.185(3)---Appeal to High Court---Application for condonation of delay---Dismissal of application by High Court holding that reasons advanced for extending period of limitation were not sufficient---Supreme Court refused to grant/leave to appeal against impugned judgment.

M. Bilal, Senior Advocate Supreme Court for Petitioner.

Dr. Babar Awan, Advocate Supreme Court for Respondent.

SCMR 2008 SUPREME COURT 609 #

2008 S C M R 609

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J. Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

MUHAMMAD ISMAIL SHAHID---Appellant

Versus

EXECUTIVE DISTRICT OFFICER (REVENUE), LAHORE and another----Respondents

Civil Appeals Nos.2140 and 2141 of 2006, decided on 12th February, 2008.

(On appeal from the judgment, dated 16-3-2006 passed by Punjab Service Tribunal, Lahore, in Appeal Nos.2612 and 2656 of 2005).

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

----Ss. 3(1)(c), 5(1)(a) & 6---Punjab Service Tribunals Act (IX of 1974), S.4---Reduction in ranks---Charge of corruption---Dismissal of civil servant's appeal by Service Tribunal---Validity---Inquiry proceedings conducted in absence of service of statement of allegations on civil servant would be void and nullity in eyes of law as civil servant was not confronted with them---Evidence recorded prior to regular inquiry, in absence of civil servant, would not be of any value as right of cross-examining witnesses had been denied to civil servant resulting in manifest injustice---Inquiry had not been conducted according to mandatory provisions of law so much so that even statement of allegation was not supplied to civil servant to meet charges---Supreme Court set aside impugned judgment and directed reinstatement of civil servant with all back-benefits while giving liberty to department to initiate fresh inquiry in accordance with law, if so advised.

Sheikh Masood Akhtar, Advocate-on-Record for Appellant.

Raja Muhammad Saeed Akram, Astt. A.-G., Punjab for Respondents.

Date of hearing: 12th February, 2008.

SCMR 2008 SUPREME COURT 611 #

2008 S C M R 611

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

MUSTAFA LAKHANI----Petitioner

Versus

PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY, KARACHI----Respondent

Civil Petition No.631-K of 2004, decided on 1st November, 2005.

(On appeal from the judgment, dated 20-7-2004 in C.P. No.D-390 of 1998 passed by the High Court of Sindh at Karachi).

(a) Pakistan Defence Officers Housing Authority, Karachi Order (7 of 1980)---

----Art. 17(h)---Allotment of plot---Payment of price and execution of "A" lease in favour of allottee not proved to have been approved oy Managing Committee of Pakistan Defence Officers Housing Authority in its meeting---Validity---Managing Committee was the only authority to make allotment---Allotment of plot in contravention of bye-laws of Society and in absence of resolution of its Managing Committee would lose its validity---Such allotment 'would be illegal, void ab initio and would not create any right or privilege in favour of allottee in respect of plot---Authority would be competent to cancel such allotment under proviso (i) of Art.17(h) of Pakistan Defence Officers Housing Authority, Karachi Order, 1980.

(b) Void order---

----Subsequent orders passed on basis of void order---Legal effect stated.

If on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognizing as legal the changed position of the parties is in operation, would fall to the ground, because such orders have as little legal foundation as the void order.

Qazi A. Rahim, Advocate Supreme Court, Muhammad Sadiq Hidayatullah Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Petitioner.

Nazar Hussain Dhoon, Advocate Supreme Court and Hafiz Abdul Baqi, Advocate-on-Record for Respondent.

Date of hearing: 1st November, 2005.

SCMR 2008 SUPREME COURT 615 #

2008 S C M R 615

[Supreme Court of Pakistan]

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

COLLECTOR OF SALES TAX AND CENTRAL EXCISE, LAHORE----Petitioner

Versus

ZAMINDARA PAPER AND BOARD MILLS and others----Respondents

C.P. No. 702-L of 2003, heard on 7th July, 2006.

(On appeal from the judgment of the learned Division Bench of the Lahore High Court, dated 10-2-2003 passed in C.A. No.316 of 2001).

Central Excise Rules, 1944---

----R. 10(2)(3)-Constitution of Pakistan (1973), Art.185(3)---Non-mentioning of specific rule in show-cause notice---Effect---High Court vide impugned judgment had opined that since the show-cause notice did not contain specific provision of law and rules, same was ineffective and void---Validity---Substantial compliance had been made by making reference of rules to identify the period of time during which tax had been allegedly evaded---Merely for the reason that sub-rules (2) & (3) of R.10 of Central Excise Rules, 1944 had not been mentioned, it was not proper to declare show-cause notice illegal---Judgment of the High Court, was not sustainable, in circumstances---Instead of taking into consideration technicalities, the court should look into the matter with different angles as to whether substantial compliance had been made or if compliance of any of the sub-rules had been omitted, then what prejudice was likely to cause to the party to whom show-cause notice was given---In the present case no prejudice had been caused to respondents because substantial compliance of the relevant rules had been made---Petition for leave to appeal was converted into appeal and was allowed, impugned judgment was set aside and case was sent back to the Collector Sales Tax and Central Excise for the purpose of decision of the case expeditiously.

Assistant Collector Customs and others v. Messrs Khyber Electric Lamps and 3 others 2001 SCMR 838 rel.

A. Karim Malik Advocate Supreme Court, Muhammad Aslam Ch., Advocate-on-Record and Mumtaz Ahmad Member (Legal) C.B.R. for Petitioners.

Ali Akbar Ali Qureshi, Advocate Supreme Court for Respondents.

SCMR 2008 SUPREME COURT 617 #

2008 S C M R 617

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J. Mian Shakirullah Jan and M. Javed Buttar, JJ

MAZULLAH KHAN----Appellant

Versus

ZONAL HEAD, STATE LIFE INSURANCE CORPORATION, PESHAWAR and others----Respondents

Civil Appeal No.194 of 2005, decided on 21st March, 2006.

(On appeal from the judgment, dated 31-12-2002 of the Federal Service Tribunal, Islamabad passed in Appeal No.326(P) of 1998).

State Life Employees (Service) Regulations, 1973---

----Regl. 4(ii), (C)(1) & (2)---Area Manager---Termination of service for failing to achieve assigned target of business---Validity---Appointment order of petitioner clearly stressed on performance standards and in case of poor performance or performance falling short of prescribed standards, competent authority was empowered to terminate his services---Petitioner's performance during relevant year was poor---Respondent-Corporation was a commercial organization, whose existence depended on performance of its employees---Appeal of petitioner was dismissed.

Chairman, State Life Insurance Corporation of Pakistan and another v. Ali Muhammad Bangash 2002 SCMR .936; Ch. Muhammad Ashraf v. State Life Insurance and others 2002 SCMR 950 and C.Ps. Nos. 1213 to 1215 of 2003 distinguished.

C.Ps. Nos.1213 to 1215 of 2003 fol. Appellant in person.

Ibadur Rehman Lodhi, Advocate Supreme Court for Respondents.

Date of hearing: 21st March, 2006.

SCMR 2008 SUPREME COURT 622 #

2008 S C M R 622

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Abdul Hameed Dogar and Saiyed Saeed Ashhad, JJ

COMMISSIONER OF INCOME TAX, ZONE "A" KARACHI----Appellants

Versus

Messrs COMBINED INVESTMENT (PVT.) LTD. and 5 others----respondents

Civil Appeals Nos. 1443-1447 of 1996 and 1009 of 2000, decided on 25th April, 2006.

(On appeal from the judgment of High Court of Sindh, dated 25-10-1994 in ITRs Nos. 9/86, 29/87, 124/84, 45/88, 59/89, 290/88 and 4/89).

Income Tax Act (XI of 1922)---

----S. 4(1)---Deeming interest---Department would charge income tax prospectively on interest of loan---Supreme Court disposed of appeal in such terms.

M. Bilal, Senior Advocate Supreme Court with Mumtaz Ahmed, Member (Legal) C.B.R. for Appellants.

Iqbal Salman Pasha, Advocate Supreme Court for Respondents (in C.As. Nos. 1443 and 1446 of 1996).

Respondents not represented in remaining cases.

SCMR 2008 SUPREME COURT 623 #

2008 S C M R 623

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J. Muhammad Moosa K. Leghari and Ch. Ejaz Yousaf, JJ

FAISAL BASHEER MEMON----Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary, Establishment Division and others----Respondents

Civil Petition No.788 of 2007, decided on 16th January, 2008.

(On appeal from the order, 25-7-2007 in Constitutional Petition No.D-1228 of 2007 passed by the High Court of Sindh, Karachi).

Federal Public Service (Rules of Competitive Examination) Rules, 1997---

----R. 6(iii)(a)---Domicile of candidate---Passing of C.S.S. Examination in three attempts by applicant---Applicant in first two forms mentioned his place of birth as Sindh Rural but mentioned in third form as Sindh Urban---Public Service Commission allocated domicile to applicant as Sindh Rural---Allocation of Customs and Excise Group to applicant on 15-11-2000---Rule 6(iii)(a) of Federal Public Service (Rules of Competitive Examination) Rules, 1997 subsequently stood amended in pursuance of decision of High Court dated 7-8-2000 upheld by Supreme Court---Application by applicant for allocating him Police Group after reconsidering his domicile as Sindh Urban---Validity---Cases of those candidates, who appeared in competitive examination held in 2000 and completed training or were allocated groups would be treated as past and closed transaction---Applicant was allotted Customs and Excise Group on 15-11-2000 and he completed his training in year 2003---Crucial date was 15-11-2000, when group was allocated to applicant as by that time R.6(iii)(a) of Federal Public Service (Rules of Competitive Examination) Rules, 1997 had been struck down---Applicant's case would be considered as per amended R.6(iii)(a) of the Rules, in circumstances.

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

Raja Niaz Ahmad Rathor, D.A.-G. Ch. Akhtar Ali, Advocate-on-Record and M. Nawaz Qureshi, Director (Legal) FPSC for Respondents.

Date of hearing: 16th January, 2008.

SCMR 2008 SUPREME COURT 629 #

2008 S C M R 629

[Supreme Court of Pakistan]

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

MUHAMMAD AKHTAR----Petitioner

Versus

DISTRICT RETURNING OFFICER----Respondent

Civil Petition No.1525-L of 2005, decided on 15th August, 2005.

(On appeal from the judgment, dated 5-8-2005 of the Lahore High Court, Lahore passed in Writ Petition No.14084 of 2005)

Constitution of Pakistan (1973)---

----Art. 185(3)---Educational Institution---Petitioner claimed that he appeared in examination under Roll number issued to him by the Education Board and passed that examination---On having seen report of Chairman, Board of Intermediate and Secondary Education concerned, verification report had been certified to be bogus with clarification that petitioner had not appeared in the examination and that no Roll number was issued to him---Petition for leave to appeal which was not pressed by counsel for petitioner, was dismissed, with direction to Secretary, Board of Intermediate and Secondary Education concerned to launch criminal proceedings against the petitioner accordingly.

Malik Saeed Hassan, Senior Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Petitioner.

Muhammad Hanif Khatana, Additional Advocate-General, Punjab for Respondent.

Date of hearing: 15th August, 2005.

SCMR 2008 SUPREME COURT 630 #

2008 S C M R 630

[Supreme Court of Pakistan]

Present: Falak Sher and Syed Jamshed Ali, JJ

DIVISIONAL FOREST OFFICER and another----Petitioners

Versus

GULAB DIN----Respondent

Civil Petition No.2587-L of 2003, decided on 3rd October, 2005.

(On appeal from the judgment passed by Punjab Service Tribunal, Lahore in Appeal No.1046 of 2003, dated 7-8-2003).

Punjab Civil Servants Pension Rules, 1963---

----R. 18(a)---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan (1973), Art.212(3)---Stoppage of pension---Earlier an inquiry was conducted against respondent for causing loss to Government in which findings were returned in favour of respondent---Subsequently a show-cause notice was sent to respondent under R.18(a) of Punjab Civil Servants Pension Rules, 1963 for stoppage of his pension and petitioner directed recovery of amount from respondent---Appeal of respondent was dismissed by Appellate Authority, but respondent succeeded before Service Tribunal---Findings of Service Tribunal were that case was one of no evidence particularly in view of inquiry report absolving respondent from misconduct---No substantial question of law of public importance having been raised, petition for leave to appeal was dismissed.

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

Nemo for Respondents.

Date of hearing: 3rd October, 2005.

SCMR 2008 SUPREME COURT 632 #

2008 S C M R 632

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan and Tassaduq Hussain Jillani, JJ

NAEEM AHMAD BHATTI and others----Petitioners

Versus

DISTRICT RETURNING OFFICER and others----Respondents

C.P.L.A. No.1511-L of 2005 and Civil Miscellaneous Application No.1154-L of 2005, decided on 11th August, 2005.

Punjab Local Government Elections Rules, 2001---

----Rr. 16 & 18---Constitution of Pakistan (1973), Art.185(3)---Rejection of nomination papers---Nomination papers filed by petitioners for seats of Nazim and Naib Nazim, were accepted by Returning Officer and appeal filed by respondents against such acceptance was dismissed by District Returning Officer---Such concurrent orders were set aside by High Court vide impugned order on the ground that one petitioner was not qualified to contest elections as Matriculation Certificate issued to him by Board of Intermediate and Secondary Education, allegedly was a forged document---Petitioners had filed petition against said impugned order of High Court---Petitioner, on Court query, had submitted that he was prepared to face criminal proceedings in case Matriculation Certificate placed by him on record, was found to be forged---Prima facie, substance was in the submission made by petitioner that Matriculation Certificate placed on record by him could not be declared as forged in constitutional jurisdiction in absence of any unimpeachable evidence and a finding of fact by a Tribunal of competent jurisdiction---Notice was directed to Chairman of Board of Intermediate and Secondary Education to cause production of original record pertaining to certificate of Secondary School Examination for the relevant year---Meanwhile, petitioners were provisionally allowed to contest elections.

Saif-ul-Malook, Advocate Supreme Court and Haji M. Rafi Siddiqui, Advocate-on-Record for Petitioners.

Nemo for Respondents Nos.1, 2 and 4.

Mian Muhammad Bashir, Advocate Supreme Court for Respondent No.3.

Date of hearing: 11th August, 2005.

SCMR 2008 SUPREME COURT 634 #

2008 S C M R 634

[Supreme Court of Pakistan]

Present: Falak Sher and Syed Jamshed Ali, JJ

DEPUTY COMMISSIONER, SAHIWAL and another----Petitioners

Versus

MUHAMMAD BOOTA ASIF----Respondent

Civil Petition No.2175-L of 2001, decided on 6th October, 2005.

(On appeal from the judgment, dated 27-4-2001 passed by Punjab Service Tribunal, Lahore in Appeal No.3141 of 2000).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----Rr. 3 & 4---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan (1973), R.212(3)---Dismissal from service---Respondent, who was proceeded against under provisions of Punjab Civil Servants (Efficiency and Discipline) Rules, 1999, on four charges, was dismissed from service---Respondent filed appeal before Service Tribunal against order of his dismissal from service---Service Tribunal on examination of record, came to the conclusion that none of the charges against respondent stood proved and his appeal was allowed---Counsel for petitioner having not been able to point out any substantial question of law of public importance to warrant interference by Supreme Court, petition was dismissed.

M.A. Aziz, Advocate Supreme Court and Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Petitioners.

Muhammad Iqbal Khan, Advocate Supreme Court for Respondent.

Date of hearing: 6th October, 2005.

SCMR 2008 SUPREME COURT 635 #

2008 S C M R 635

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan and Mian Hamid Farooq, JJ

SOHAIL HAMEED BUTT----Petitioner

Versus

Mst. NUDRAT NAFEES----Respondent

Civil Petition No.616 of 2007, decided on 17th January, 2008.

(On appeal from the judgment, dated 19-6-2007 of the Lahore High Court, Lahore, passed in F.A.O. No.172 of 2007).

(a) Cantonments Rent Restriction Ordinance (XI of 1963)---

----S. 24(3)---First Appeal---Certified copies of record of Rent Controller annexed with appeal---Rejection of appeal by High Court in limine without summoning record of Rent Controller---Validity---Provisions of S.24 of Cantonments Rent Restriction Ordinance, 1963 did not require High Court while deciding appeal to summon record of Rent Controller---Regular First Appeal could be dismissed in limine---High Court while deciding present appeal had examined record annexed therewith, thus, provisions of S.24(3) of Cantonments Rent Restriction Ordinance, 1963 had been sufficiently complied with in letter and spirit---High Court, in the present case, by not summoning record of Rent Controller had neither committed any illegality nor had any prejudice been caused to appellant---Supreme Court dismissed petition for leave to appeal.

Muhammad Ibrahim v. Mst. Irshad Begum PLD 2002 SC 720; Ashiq Ali and others v. Mst. Zamir Fatima and others PLD 2004 SC 10 and Hameed Ahmad v. Ghulab Khan 2006 SCMR 895 rel.

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

----S. 96 & O.XLI, R.33---Regular First Appeal could be dismissed in limine.

Muhammad Ibrahim v. Mst. Irshad Begum PLD 2002 SC 720; Ashiq Ali and others v. Mst. Zamir Fatima and others PLD 2004 SC 10 and Hameed Ahmad v. Ghulab Khan 2006 SCMR 895 rel.

----S. 17---Civil Procedure Code (V of 1908), O.IX, R.13---Application of setting aside of ex parte ejectment order---Plea of tenant was that in effecting service of summons upon him, landlord had committed fraud and forgery---Validity---Report of Process Server on notice issued to tenant was that daughter of tenant had refused to receive notice on pretext of tenant being out of city---Rent Controller thereafter directed issuance of notice through substituted service by affixation, registered A.D. and through publication in two newspapers. having nationwide circulation---Report of Process-Server showed that a copy of notice was affixed on abode of tenant---Tenant had not disputed correctness of his address given in ejectment petition---Copy of postal receipt showed that notice was issued to tenant and A.D. receipt was available on record---Tenant had been served through all modes of service provided under law---Tenant could not prove his said plea---Application for setting aside of ex parte ejectment order was dismissed in circumstances.

Ihsan-ul-Haq Chaudhry, Advocate Supreme Court for Petitioner.

Ali Akbar Qureshi, Advocate Supreme Court with Arshad Ali Chaudhry, Advocate-on-Record for Respondent.

Date of hearing: 17th January, 2008.

SCMR 2008 SUPREME COURT 640 #

2008 S C M R 640

[Supreme Court of Pakistan]

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

ARSHAD ULLAH and another----Petitioners

Versus

MUSLIM COMMERCIAL BANK and others----Respondents

Civil Petition No.2498-L of 2000, decided on 20th June, 2005.

(On appeal from the order, dated 10-8-2000 of the Lahore High Court, Lahore, passed in Civil Miscellaneous No.3/C of 2000 in F.A.O. No.29 of 1993).

Constitution of Pakistan (1973)---

----Art. 185(3)---Civil Procedure Code (V of 1908), S.12(2)---Appeal filed by respondent-Bank was disposed of by High Court in its favour---Petitioners did not question said appellate order before any higher forum and instead made application before High Court under S.12(2), C.P.C. praying for recall and setting aside of said order---Said application was dismissed by High Court, with a clarification for benefit of petitioners that if a fresh execution petition was filed by respondent-Bank, then maintainability of same would be subject to law permitting same---Petitioners, had approached Supreme Court impugning said order passed by High Court on application moved under S.12(2), C.P.C.---No infirmity was found in the discretion exercised by High Court in dismissing application filed under S.12(2), C.P.C., especially when clarification had been made by High Court for the benefit of petitioners to the effect that a fresh execution petition before executing Court would be competent only if law so permitted---Reservation or objection could be conveniently pleaded before executing Court in said fresh execution petition.

Dr. A. Basit, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 20th June, 2005.

SCMR 2008 SUPREME COURT 642 #

2008 S C M R 642

[Supreme Court of Pakistan]

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

UMAR DIN and others----Petitioners

Versus

MUHAMMAD SADIQ and others----Respondents

Civil Petition No.300-L of 2001, decided on 23rd June, 2005.

(On appeal from the judgment, dated 21-11-2000 of the Lahore High Court, Lahore, passed in Civil Revision No.1446 of 1987).

Constitution of Pakistan (1973)---

----Art. 185(3)---Transfer of Property Act (IV of 1882), Ss.58, 60 & 67---Specific Relief Act (I of 1877), S.42---Suit for declaration---Foreclosure of right of redemption---First Appellate Court, as well as High Court after proper appreciation of evidence on record, had come to definite conclusion that land in question had been mortgaged by predecessor-in-interest of petitioner in favour of predecessor-in-interest of respondent in 1892-93 which was never, redeemed---Respondents, in circumstances, had become owners of suit property by efflux of time upon foreclosure of the right of petitioners to redeem suit-land---Petitioners did not challenge judgment and decree of Trial Court---Concurrent findings of fact recorded by First Appellate Court as well as by High Court, based on proper appreciation of evidence, would not call for interference---In absence of any legal or factual infirmity in impugned judgment of High Court, petition for leave to appeal was dismissed and leave refused accordingly.

Ch. Inayat Ullah, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioners.

M.A. Qureshi, Advocate-on-Record for Respondents.

Date of hearing: 23rd June, 2005.

SCMR 2008 SUPREME COURT 644 #

2008 S C M R 644

[Supreme Court of Pakistan]

Present: Falak Sher, Mian Shakirullah Jan and Tassaduq Hussain Jillani, JJ

Mst. NASIMA FATIMA----Petitioner

Versus

BASHIR AHMAD and others----Respondents

C.P.L.A. No.672-L of 2001, decided on 16th June, 2005.

(On appeal from the judgment, dated 15-12-2000 passed by the Lahore High Court in R.S.A. No.131 of 1970).

Punjab Pre-emption Act (I of 1913)---

----Ss. 4 & 5---Constitution of Pakistan (1973), Art.185(3)---Suit for preemption---Superior right of pre-emption---Trial Court and Appellate Court below concurrently decreed suit and High Court set aside said concurrent judgments and decrees and dismissed on grounds that plaint had not been signed by petitioner; that petitioner did not appear during evidence; that attorney, who appeared on behalf of petitioner, did not have authority to either file suit or make statement in the Court; that claim of petitioner that she was owner in estate, was factually incorrect and that land was not assessed to land revenue---Counsel for petitioner had frankly conceded firstly that general attorney did not stipulate any specific authority for attorney to file suit; and that general power of attorney was executed on 18-2-1967, whereas suit-land was purchased by respondents on 24-8-1967---Said attorney, had no authority to rile pre-emption suit with regard to suit-land---In view of nature of suit land, it could be concluded that petitioner did not possess superior right of pre-emption against respondents on the basis of land owned either as sharer in Khata or owner in the estate---Contention of petitioner that High Court had set aside concurrent judgments and decrees on grounds which were not taken in memo of appeal, was repelled, because petitioner did not object to said grounds when those were agitated before High Court during arguments nor anything to that effect had been specifically, stated by petitioner in memo, of petition for leave to appeal---Impugned judgment being unexceptionable, did not call for interference---No question of law of public importance having been raised by petitioner, petition for leave to appeal, was dismissed and leave was refused.

1997 CLC 127; Kint Ram v. Harbat Singh AIR 1940 Lah. 344; PLD 1989 SC 373(2); PLD 1986 Lah. 242; Muhammad Naeem and others v. Ghulam Muhammad and others 1994 SCMR 559; Muhammad Hussain and others v. Muhammad Khan 1989 SCMR 1026 and Gul Taj Begum v. Lal Hussain Iqbal Hussain PLD 1980 SC (AJ&K) 60 ref.

Malik Azam Rasool, Advocate Supreme Court with Sh. Masood Akhtar, Advocate-on-Record for Petitioners.

Tanvir Ahmad and Ch. Khurshid, Advocate Supreme Court for Respondents Nos.2 and 3.

Nemo for Respondents Nos.1, 4 and 5.

Date of hearing: 16th June, 2005.

SCMR 2008 SUPREME COURT 647 #

2008 SCMR 647

[Supreme Court of Pakistan]

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

KHUDA BUX and 8 others----Petitioners

Versus

SHAMIR and 10 others----Respondents

Civil Petition No.178 of 2001, decided on 21st June, 2005.

(On appeal from the judgment of Lahore High Court, Lahore, dated 25-10-2000 passed in R.S.A. 34 of 1986).

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

----Ss. 6 & 13---Constitution of Pakistan (1973), Art.185(3)---Suit for pre-emption---Suit filed by respondents claiming superior right of pre-emption on basis of ownership in estate, was dismissed by Trial Court, but in appeal preferred by respondents, Appellate Court below decreed suit with observation that petitioners/vendees were no more owners in estate at the time of dismissal of suit by Trial Court---High Court, after detailed discussion of the matter, found that petitioners having lost their status as owners in the estate, would not be in a position to defeat pre-emption suit-filed by respondents---Petitioners having failed to point out any misreading or non-reading of evidence or any other defect in concurrent findings of Courts below, calling for interference of Supreme Court, petition for leave to appeal was dismissed.

Talib H. Rizvi, Senior Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 21st June, 2005.

SCMR 2008 SUPREME COURT 649 #

2008 S C M R 649

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Muhammad Akhtar Shabbir and Syed Sakhi Hussain Bokhari, JJ

AALA MUHAMMAD and another----Petitioners

Versus

THE STATE----Respondent

Jail Petition No.510 and Criminal Petition No.96-P of 2006, decided on 16th January, 2008.

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

----S. 9(c)-Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Recovery of 18-1/2 kilograms of Charas---Evidence of police witnesses---Value---Trial Court convicted and awarded sentence of imprisonment for life to accused, which was maintained by High Court---Plea raised by accused was that no independent witnesses were produced by prosecution to prove recovery and they had no knowledge of presence of Charas in vehicle---Validity---Case was that of Nakabandi/checking and prosecution witnesses were members of checking party, thus their presence at the place of recovery was natural---Prosecution witnesses present at the place of recovery of Charas from vehicle under the control/being driven by accused were police employees who were competent witnesses like any other independent witness---Evidence of police witnesses could not be discarded merely for the reason that they were police employees---Accused could not explain their travelling in car nor their destination in their statement under S.342 Cr.P.C.---Use of car in commission of offence was not denied but as to where accused were going was unexplained and it remained under mystery---Prosecution was successful to establish guilt of accused to the hilt by producing their witnesses---Accused failed to point out any error or illegality, misreading or non-reading of evidence in the judgment of High Court--Petition was dismissed.

Naseer Ahmad v. The State 2004 SCMR 1361; Riaz Ahmad v. The State 2004 SCMR 988; Fida Jan v. The State 2001 SCMR 36; Muhammad Azam v. The State PLD 1996 SC 67 and Shehzad Muhammad v. The State zu05 SCMR 859 rel.

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

----S. 164---Judicial confession, retraction from---Scope---Such confession may be treated to be sufficient to sustain conviction for offence if the same is found to be voluntary and true---Retracted judicial confession should not be acted upon unless corroborated by some other reliable evidence.

Arabistan and others v. The State 1992 SCMR 754 and Ch. Muhammad Yaqoob and others v. The State 1992 SCMR 1983 rel.

F.K. Butt, Advocate Supreme Court for Petitioners (in Jail Petition No.510).

Asad Ullah Khan Chamkani, Advocate Supreme Court for Petitioners (in Criminal Petition No.96).

Qari Abdur Rashid, Advocate Supreme Court for the State (in both cases).

SCMR 2008 SUPREME COURT 654 #

2008 S C M R 654

[Supreme Court of Pakistan]

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

MUHAMMAD SHAFI and others----Petitioners

Versus

ABDUL HAMEED and others----Respondents

C.M.A. No.777-L and Civil Petition No.502-L of 2005, decided on 22nd June, 2005.

(On appeal from the judgment, dated 10-2-2005 of the Lahore High Court, Lahore, passed in Civil Revision No.1727 of 2004).

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S.115 & O.VI, R.17---Constitution of Pakistan (1973), Art.185(3)---Suit filed by petitioners having been dismissed by Trial Court, petitioners filed appeal before Appellate Court against judgment of Trial Court---After three years of pendency of said appeal, petitioners realizing certain deficiencies in plaint, submitted application for seeking amendment of their plaint and Appellate Court below, after almost 14 years of filing of suit, allowed application of petitioners for amendment of plaint subject to payment of costs and permitted petitioners to amend their plaint and also permitted respondents to file amended written statement---Respondents filed revision before High Court against orders of Appellate Court below which was allowed by High Court and said order of High Court had been impugned by petitioners before Supreme Court through petition for leave to appeal---Held, no illegality was found in discretion exercised by High Court which had rightly found that fact which was to be pleaded through amendment of plaint, had already been pleaded---Law would favour only the diligent and not those who were grossly negligent and it was an additional ground on which order in question of Appellate Court below could have been struck down by high Court---Petition for leave to appeal was dismissed and leave refused.

Syed Muhammad Kalim Ahmed Khurshid, Advocate Supreme Court with Faiz-ur-Rehman, Advocate-on-Record for Petitioners.

Respondent No.1 in person.

Nemo for other Respondents.

Date of hearing: 22nd June, 2005.

SCMR 2008 SUPREME COURT 656 #

2008 S C M R 656

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Mian Shakirullah Jan and Tassaduq Hussain Jillani, JJ

Miss RAHAT AFROZE----Petitioner

Versus

STATE LIFE INSURANCE CORPORATION and others----Respondents

C.P.S.L.A. No.766-L of 2003, decided on 21st July, 2005.

(On appeal from the order of the Federal Service Tribunal, dated 21-1-2003 passed in M.P. No.10 of 2003).

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Appeal filed by petitioner was dismissed by Service Tribunal and petitioner instead of challenging order of Service Tribunal before Supreme Court, filed a representation for correction of said order---Such representation was not competent before Service Tribunal as after having disposed of appeal, it had no jurisdiction to entertain the same---Application of petitioner, in. that respect, was rightly dismissed by Service Tribunal---Petition for leave to appeal before the Supreme Court filed after more than four months from impugned order was also barred by time especially when no application for condonation of delay was filed by petitioner---Petition for leave to appeal was dismissed and leave declined.

Asmat Khan, Advocate Supreme Court with A.H. Masood, Advocate-on-Record for Petitioner.

Tanvir Ahmad, Advocate-on-Record for Respondents.

Date of hearing: 21st July, 2005.

SCMR 2008 SUPREME COURT 657 #

2008 S C M R 657

[Supreme Court of Pakistan]

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

NAWAB DIN----Petitioner

Versus

GIANI----Respondent

Civil Petition No.254-L of 2001, decided on 21st June, 2005.

(On appeal from the judgment, dated 7-11-2000 of the Lahore High Court, Lahore, passed in Civil Revision No.1694 of 1988).

Specific Relief Act (I of 1877)---

----S. 8---Constitution of Pakistan (1973), Art.185(3)---Suit for possession---Petitioner had instituted suit for possession after a period of over 15 years after sanction of mutation of sale of property in question for consideration and no plausible explanation was given for said delay---First Appellate Court as well as High Court, after proper appreciation of evidence of parties had recorded concurrent findings of fact that petitioner had in fact sold out his land to the respondent---Impugned judgment of High Court did not suffer from any legal or factual infirmity so as to warrant interference by Supreme Court--Petition for leave to appeal was dismissed.

Abdul Qadoos, Advocate Supreme Court and C.M. Lateef, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 21st June, 2005.

SCMR 2008 SUPREME COURT 659 #

2008 S C M R 659

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

NAZIR AHMAD and others----Petitioners

Versus

AKHTAR MEHMOOD and others----Respondents

Civil Petition No.3231-L of 2003, decided on 15th July, 2004.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 20-10-2003 passed in C.M. No.579-C of 2002 in R.S.A. No.323 of 1973).

Civil Procedure Code (V of 1908)---

----Ss. 11 & 12(2)---Constitution of Pakistan (1973), Art.185(3)---Res judicata---Plea of fraud and misrepresentation---Leave to appeal was granted by Supreme Court against order of High Court whereby application under S.12(2), C.P.C. was dismissed and petitioners had contended that High Court had erred in law in applying the principle of res judicata when previous judgment was challenged on the ground of fraud and misrepresentation and that when issues on merits were not decided, principles of res judicata would not apply and petitioners could not be non-suited.

Mehdi Khan Chuhan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.

Ch. Muhammad Ashraf Wahlah, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Respondents Nos.2 to 4.

Syed Naveed Sheryar, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Respondents Nos.6 and 7.

Date of hearing: 15th July, 2004.

SCMR 2008 SUPREME COURT 660 #

2008 S C M R 660

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

KHALID MEHMOOD BUTT and another----Petitioners

Versus

THE STATE through Prosecutor-General, Punjab----Respondent

Cr.P.L.A. No.327 of 2007, decided on 23rd January, 2008.

(On appeal from the judgment, dated 18-9-2007 in Criminal Appeal No.136 of 2007 (Criminal Miscellaneous No.270/M of 2007) passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi).

Criminal Procedure Code (V of 1898)---

----S.426---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Suspension of sentence---Delay in deciding of appeal---Conflicting reports of Chemical Examiners---Accused were sentenced under S.9 (c) of Control of Narcotic Substances Act, 1997, by Trial Court and were sentenced to 14 years of imprisonment---Plea raised by accused for suspension of sentence was that they were in judicial custody since 21-3-2001 and there was no likelihood of their appeal being heard in near future---Accused further raised the plea that there were conflicting reports about the material recovered from them---Effect---Material sprinkled on the paper recovered was only 2% of the paper in case of brown with mild coating and 6 % in case of brown with white coating which if calculated would come to 5.6 and 16.8 grams only, which was quite a small amount---Report furnished by Pakistan Council of Scientific and Industrial Research revealed that, recovered material including coating material did not contain "heroin" and there were two conflicting reports---Supreme Court, in circumstances, converted petition for leave to appeal into appeal and suspended sentences awarded to accused---Appeal was allowed.

Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioners.

Muhammad Siddique Khan, D.P.-G. Punjab for the State.

A. D. Nasim, Special Prosecutor, A.N.F. for A.N.F.

SCMR 2008 SUPREME COURT 663 #

2008 S C M R 663

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Falak Sher and M. Javed Buttar, JJ

MUHAMMAD ASGHAR RANA----Petitioner

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, LAHORE----Respondent

C.M.A. No.1613/L of 2003 in C.P.L.A. No.795(L) of 2001, decided on 25th October, 2004.

(On appeal from the order, dated 2-6-2003 of this Court passed in C.P.L.A.No.795/L of 2001).

Civil service---

----Claim with regard to increments---Claim of petitioner was that he was entitled to some increments which had not been allowed to him---Said increments had never been claimed by petitioner while he was in service, nor same was claimed at the time of his retirement when his pension was fixed nor did he feel aggrieved of same for more than nine years---Law favours the diligent and not a negligent---No exception could be taken to impugned judgment of High Court---Petition for leave to appeal was dismissed---Constitution of Pakistan (1973), Art.185(3).

Sh. Munir Ahmed, Advocate Supreme Court/Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 25th October, 2004.

SCMR 2008 SUPREME COURT 665 #

2008 S C M R 665

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

ALLAH WASAYA and others----Petitioners

Versus

PROVINCE OF PUNJAB through Executive District Officer (Revenue), Vehari and others----Respondents

Civil Petition No.1632-L of 2003, decided on 3rd August, 2004.

(On appeal from the judgment, dated 28-3-2003 of the Lahore High Court, Multan Bench, passed in Civil Revision No.505 of 1993).

Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)---

----S. 10---Transfer of Property Act (IV of 1882), Ss. 58 & 60---Constitution of Pakistan (1973), Art. 185(3)---Allotment of mortgaged property by Settlement Authorities---Leave to appeal was granted by the Supreme Court to consider contention that whether a property mortgaged by a muslim non-evacuee with a non-muslim evacuee by way of usufructory mortgage could not be allotted by Settlement Authorities to a displaced person; that whether petitioners had a right to redeem property mortgaged by their predecessor-in-interest by making payment of mortgaged money in the light of instructions contained in letters of Custodian of Evacuee Properties as well as Settlement and Rehabilitation Department; and that whether property in dispute having not been made a part of compensation pool before cut off date i.e. 1-1-1957, could not be treated to be evacuee property for the first time in the year 1971.

Samar Gul v. Central Government and others PLD 1986 SC 35; M.A. Hafeez Khan and 9 others v. Riaz Ahmad Mehra and 3 others 1983 SCMR 803 and Muhammad Khan and others v. The Chief Settlement and Rehabilitation Commissioner, West Pakistan PLD 1962 SC 284 ref.

Mian Allah Nawaz, Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-Record for Petitioners.

Syed Kabeer Mahmood, Advocate Supreme Court for Respondents.

Date of hearing: 3rd August, 2004.

SCMR 2008 SUPREME COURT 666 #

2008 S C M R 666

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Faqir Muhammad Khokhar and M. Javed Buttar, JJ

AHMED NAWAZ----Petitioner

Versus

GOVERNMENT OF THE PUNJAB and others----Respondents

Civil Petitions for Leave to Appeal Nos.3089(L) and 3110(L) of 2004, decided on 20th December, 2004.

(On appeal from the judgment, dated 13-9-2004 of the Lahore High Court passed in Petition No.748 of 2004 in Civil Revision No.803-D of 1997).

Civil Procedure Code (V of 1908)---

----Ss. 12(2) & 115---Constitution of Pakistan (1973), Art.185(3)---In earlier round of litigation, revisions were got decided with consensus arrived at between parties as a result of which petitioner agreed to hand over possession of suit property to legal heirs of deceased owner/allottee, but instead of doing so, petitioner filed application under S. 12(2), C.P.C. before High Court objecting to consensus order---High Court concluded that application filed by petitioner under S. 12(2), C.P.C. was not competent---High Court was right in, observing that previous proceedings arising out of revision which were disposed of with consensus between parties, were correct.

Tahir Munir Malik, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 20th December, 2004.

SCMR 2008 SUPREME COURT 668 #

2008 S C M R 668

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Falak Sher, JJ

HAMEED-UR-REHMAN through L.Rs.----Petitioners

Versus

SECRETARY TO THE GOVERNMENT OF PAKISTAN, IVIINISTRY OF RELIGIOUS AFFAIRS and another----Respondents

Civil Petitions Nos.2747-L and 2748-L of 2002, decided on 22nd December, 2004.

(On appeal from the judgment, dated 11-7-2002 of the Lahore High Court, Lahore passed in Writ Petitions Nos.16446 of 1998 and 8937 of 1999).

Displaced Persons (Compensation and Rehabilitation Act (XXVIII of 1958)---

----S. 10---Constitution of Pakistan (1973), Art. 185(3)---Evacuee Trust Property---Transfer of---Property in question was declared Evacuee Trust Property with the concession that if any portion of said property had been transferred by Settlement Organization in favour of any entitled person before target date i.e. 30-6-1968 then said transfer would not be disturbed and such transfer would continue to stand---Petitioners, who claimed that Provisional Transfer Order was issued in their favour before said target date, had not paid price of said property even after expiry of said target date and no Permanent Transfer Deed was issued in their favour by Settlement Organization---Petitioners were rightly held not entitled to transfer to their property in question and were rightly not declared to be transferees of property in question.

Tahir Ali v. Federation of Pakistan and others PLD 1987 Kar. 290 and Assistant Administrator, Evacuee Trust Property v. Muhammad Ayub and others 2003 SCMR 841 ref.

Ihsan-ul-Haq Chaudhry, Advocate Supreme Court with Ch. Talib Hussain, Advocate-on-Record for Petitioners.

Ch. M. Bakhsh, Advocate Supreme Court with Faiz-ur-Rehman, Advocate-on-Record for Respondent No.4 (in C.P. No.2747-L and No.1 in C.P. 2748-L of 2002).

Date of hearing: 22nd December, 2004.

SCMR 2008 SUPREME COURT 678 #

2008 S C M R 678

[Supreme Court of Pakistan]

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

MUHAMMAD RAFIQUE----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.141-L of 2005, decided on 15th June, 2005.

(On appeal from the judgment/order of Lahore High Court, dated 28-2-2005 passed in Criminal Miscellaneous No.104/B of 2005).

Criminal Procedure Code (V of 1898)---

----S. 497-Penal Code (XLV of 1860), S.324/34---Constitution of Pakistan (1973), Art.185(3)---Bail, refusal of---Accused was attributed role of direct firing at the complainant who had sustained injuries on the lower part of his body---Fact that there was no injury on the sensitive part of the body of the complainant, would not as such bring the case out of the purview of the prohibitory clause of S.497(1), Cr.P.C. to claim the bail as of rule---Disappearance of accused after the occurrence for a long time might not be essentially an evidence of his guilt, but it was an important factor to be considered at the trial, which was in progress---Case of accused was not fit for grant of bail---Leave to appeal was refused accordingly.

Mian Shah Abbas, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 15th June, 2005.

SCMR 2008 SUPREME COURT 680 #

2008 S C M R 680

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Mian Muhammad Ajmal and Khalil-ur-Rehman Ramday, JJ

MUHAMMAD SADIQ through L.Rs.----Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, RAJANPUR and others----Respondents

Civil Petition for Leave to Appeal No.347-L of 2004, decided on 17th February, 2004.

(On appeal from the judgment, dated 10-12-2003 of the Lahore High Court Multan Bench, Multan, passed in Writ Petition No.2512 of 1989).

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13 & 15---Constitution of Pakistan (1973), Art. 185(3)---Ejectment of tenant---Ejectment application by landlord against predecessor-in-interest of tenants was allowed by Rent Controller---Order passed by Rent Controller was maintained by Appellate Authority and then by High Court---Plea of predecessor-in-interest of tenants that he had purchased property in question, was not accepted by High Court---Impugned judgment of High Court being just and proper, needed no interference by Supreme Court---Leave to appeal was refused.

Islam Ali Qureshi, Advocate Supreme Court/Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 17th February, 2004.

SCMR 2008 SUPREME COURT 682 #

2008 S C M R 682

[Supreme Court of Pakistan]

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

MUNIR AHMAD and another----Petitioners

Versus

THE STATE----Respondent

Cr. M.A. No.216-L of 2003 in Criminal Petitions Nos.423-L of 2004 and 33-L of 2005, decided on 21st April, 2005.

(On appeal from the judgment, dated 20-5-2004 of the Lahore High Court, Lahore, passed in Criminal Appeal No.994 of 1999 and Murder Reference No. 432 of 1999).

Penal Code (XLV of 1860)---

----S. 302(b)/149---Criminal Procedure Code (V of 1898), S.345---Constitution of Pakistan (1973), Art.185(3)---Acquittal of accused on the basis of compromise---Legal Heirs of the deceased had entered into a compromise with both the accused which was found to be genuine and voluntary---Nothing was available on record to either justify punishment of the accused under S.311, P.P.C. or to persuade the Court to withhold its permission in the matter of compounding of the offence---Petitions for leave to appeal were consequently converted into appeals and allowed---Accused were acquitted accordingly on account of compromise reached between the parties.

Mian Sikandar Hayat, Advocate Supreme Court for Petitioners.

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

Date of hearing: 21st April, 2005.

SCMR 2008 SUPREME COURT 684 #

2008 S C M R 684

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Muhammad Nawaz Abbasi, JJ

ABDUL SATTAR----Petitioner

Versus

THE STATE through Advocate-General N.-W.F.P.----Respondent

Criminal Petition No.102 of 2005, decided on 13th July, 2005.

(On appeal from the judgment of Peshawar High Court, Peshawar, dated 21-2-2005 passed in Criminal Appeal No.81 of 2005).

(a) Criminal trial---

----Investigating Officer, examination of---Investigating Officer is not a formal witness and his evidence, subject to the qualifying test to be believed is at par with that of any other prosecution witness, therefore, his non-examination may cause prejudice to an accused in his defence---Importance of evidence of Investigating Officer depends upon the facts of each case and his non-production as witness is not always necessarily fatal to prosecution.

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

----Ss. 409, 468, 419 & 420---Prevention of Corruption Act (II of 1947), S.5(2)---Constitution of Pakistan (1973), Art.185(3)---Prosecution had mainly relied upon the official documents---Documentary evidence showed that non-production of Investigating Officer in Court had caused no prejudice to the accused as he was given full opportunity to cross-examine the relevant witness of the concerned Department, but he had not been able either to question the credibility of the documentary evidence or discredit the oral evidence produced by the prosecution---Cooperative Society admittedly was being run in the name of and President who was dead and thus, same was not validly constituted under Cooperative Societies Act, 1925---Cooperative Society had no legal status to obtain loan from the Department---Verification of the genuineness of the Society by the accused, therefore, was sufficient evidence of his involvement in the transaction---Accused being a representative of the Department, was responsible to supply correct information, but he knowingly having submitted an incorrect and misleading report to the concerned Authorities, had caused loss to the Government for wrongful gain---In the absence of any explanation of the accused of making verification of invalid Cooperative Society in good faith and that loan was actually utilized by the members of the society, a strong presumption was raised that he, in connivance with Secretary General of the Society, having obtained loan in the name of invalid and improperly constituted Society, had misappropriated the amount of loan---Concurrent findings of guilt of accused arrived at by the Courts below did not suffer from any legal or factual infirmity or defect of misreading or non-reading of evidence to call for interference of Supreme Court---Leave to appeal was refused accordingly.

State through A.-G. Sindh v. Bashir and others PLD 1997 SC 408; Allah Ditta v. State PLD 1958 SC (Pak.) 290; Muhammad Sharif v. State 1972 Cr.LJ 1259 ref.

Mian Mohibullah Kakakhel, Advocate Supreme Court for Petitioner.

M. Bilal, Senior Advocate Supreme Court for A.-G. N.-W.F.P. for Respondent.

Date of hearing: 13th July, 2005.

SCMR 2008 SUPREME COURT 688 #

2008 S C M R 688

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Muhammad Akhtar Shabbir and Syed Sakhi Hussain Bokhari, JJ

KHALID SAIF ULLAH ----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.230 of 2007, decided on 10th January, 2008.

(Against the judgment of the Lahore High Court, Lahore, dated 1-2-2007 passed in Criminal Appeal No.151 of 2002).

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

----S. 302---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---False implication---Delay in registration of F.I.R.---Accused was convicted under S.302 P.P.C. by Trial Court and was awarded death sentence, which was maintained by High Court---Plea raised by accused was that he had been falsely implicated instead of real culprits and there was unexplained delay of five hours in registration of F.I.R.---Validity---Complainant being close relative of accused had no reason to falsely implicate him in the commission of offence substituting accused and letting off the real culprits---No material was available on record which would indicate substitution of accused in the case with real culprit---Substitution was phenomenon of rare occurrence because even interested witnesses would not normally allow real culprits for the murder of their relations let off by involving innocent persons---Deceased had received serious injuries and was first taken to hospital whereafter operation she expired and such delay was not fatal to prosecution version---Accused failed to point out any material contradiction and discrepancy which could benefit defence version---Accused also could not point out any error of law, misreading or non-reading of evidence in judgment passed by High Court calling for interference by Supreme Court---Judgment passed by High Court was unexceptionable to which Supreme Court would not take any exception---Leave to appeal was refused.

Irshad Ahmad and others v. The State and others PLD 1996 SC 138 rel.

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

----S. 302---Defence version---Heavy rainfall---Certificate of Meteorological Department---Proof---Stance taken by accused during trial was that city was effected with heavy rainfall and Chhuri (weapon of offence) could not remain stained with blood---Validity---Evidence on record showed that Chhuri was recovered from the bottom of bushes and it could not be believed that due to rain, blood on Chhuri had been washed out---No independent evidence was produced by accused from locality to prove that there was heavy rainfall at the place of recovery---Certificate of Meteorological Department was not sufficient proof to establish defence plea.

Arshad Ali Ch., Advocate Supreme Court for Petitioner.

M. Siddique Khan Baloch, D.P.-G. for the State.

SCMR 2008 SUPREME COURT 694 #

2008 S C M R 694

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Falak Sher and M. Javed Buttar, JJ

Malik GHIAS-UD-DIN----Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary Interior and another----Respondents

Civil Petition No.237-L of 2003, decided on 21st October, 2004.

(On appeal from the order, dated 11-11-2002 of the Lahore High Court, Lahore passed in Writ Petition No.17868 of 2001).

Notaries Ordinance (XIX of 1961)---

----S. 3---West Pakistan Notaries Rules, 1965---Negotiable Instruments Act (XXVI of 1881), S. 138---One of the questions which required determination was, whether provisions of West Pakistan Notaries Rules, 1965 to the extent that those denied the right of appointment as Notaries to persons other than legal practitioners as envisaged by Notaries Ordinance, 1961, were offensive and consequently ultra vires of provisions of said Ordinance---Another question which would also require examination was that Negotiable Instruments Act, 1881 was a special law vis-a-vis promisory notes, bills of exchange, cheques, etc. and appointment of Notaries Public in said connection---Issue would be whether provisions of Notaries Ordinance, 1961 could override provisions of S.138 of Negotiable Instruments Act, 1881---Petition for leave to appeal was allowed to resolve said question.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 21st October, 2004.

SCMR 2008 SUPREME COURT 696 #

2008 S C M R 696

[Supreme Court of Pakistan]

Present: Falak Sher and Tassaduq Hussain Jillani, JJ

FEROZE----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.12-L of 2005, decided on 26th May, 2005.

(On appeal from the judgment, dated 25-11-2004 passed by Lahore High Court, Lahore in Criminal Appeal No.1223 of 2000 and Murder Reference No.574 of 2000).

Penal Code (XLV of 1860)---

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art.121---Constitution of Pakistan (1973), Art.185(3)---Accused had admitted the occurrence taking the plea of having killed the deceased under grave and sudden provocation on having seen him in compromising position with his unmarried elder sister in his house---In view of the provisions of Article 121 of the Qanun-e-Shahadat, 1984 burden of proving the said plea had shifted to the accused, which he had failed to prove---Admittedly only females of the house were present at the time of occurrence, but neither the said sister of the accused nor any other female was produced in support of the defence plea----Wearing of clothes by the deceased when he was done to death had belied the defence version---Nature and locale of injuries on the person of the deceased had suggested that he was fast asleep when he was given hatchet blows---Concurrent judgments of the two Courts below convicting and sentencing the accused to death under S.302(b), P.P.C. were unexceptionable---Leave to appeal was refused to accused accordingly.

Sh. Khizar Hayat, Advocate Supreme Court and A.H. Masood, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 26th May, 2005.

SCMR 2008 SUPREME COURT 699 #

2008 S C M R 699

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

NOOR AHMAD and others----Petitioners

Versus

NAZAR HUSSAIN through L.Rs. and others----Respondents

Civil Petition Leave to Appeal No.1756-L of 2000, decided on 3rd September, 2004.

(On appeal from judgment of Lahore High Court, Bahawalpur Bench Bahawalpur, dated 19-6-2000 passed in Civil Revision No.192-D of 1981/BWP).

Specific Relief Act (I of 877)---

----Ss. 42 & 54---Constitution of Pakistan (1973), Art.185(3)---Suit for declaration and permanent . injunction---Concurrent finding of fact recorded by Trial Court, affirmed by Appellate Court and reaffirmed in revision by High Court---Case of respondent was that consent decree in earlier suit was obtained by fraud, collusion and misrepresentation---Contention of petitioners was that there was a valid compromise in earlier round of suit and impugned decree was legal and proper and it could not be struck down at the whims of respondent and that possession of land, in pursuance of transaction of sale, had throughout remained with petitioners---Since question of fact was not taken before forums below and no finding was available for or against it, Supreme Court declined to enter into such question, especially when Courts below had analysed and scanned evidence with care, caution and circumspection---Impugned judgments did not suffer from any inherent legal infirmity and no question of law of public importance was raised in petition---Petition was dismissed and leave to appeal refused.

G.N. Gohar, Advocate Supreme Court and Mehmood A. Qureshi, Advocate-on-Record for Petitioners.

Rai Bashir Ahmad, Advocate Supreme Court for Respondents.

Date of hearing: 3rd September, 2004.

SCMR 2008 SUPREME COURT 701 #

2008 S C M R 701

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Falak Sher, JJ

ABDUL RAZZAQ alias NANNA----Petitioner

Versus

THE STATE----Respondent

Jail Petition No. 111 of 2003, decided on 10th May, 2005.

(On appeal from the judgment, dated 31-3-2003 of the Lahore High Court, Lahore, passed in Criminal Appeal No.1203 of 1998, Criminal Revision No.171 of 1999 and Murder Reference No.54 of 1999).

Penal Code (XLV of 1860)---

----S. 302(b)/34---Constitution of Pakistan (1973), Art.185(3)---Incident having occurred in broad-daylight in a busy "Bazar" could not have gone un-witnessed, nor the culprit could have escaped unnoticed---Both the eye-witnesses including the complainant were independent witnesses of the occurrence, out of whom complainant was also a natural witness being a partner in the hotel where the incident had taken place---No previous enmity or ill-will existed between the parties to prompt the two eye-witnesses to falsely and maliciously implicate the accused in the commission of the offence---Crime-empty secured from the spot was found to have been fired from the shot-gun recovered at the instance of the accused---Finding of the two Courts below that the accused was not a minor at the time of occurrence, was also not open to any exception---No circumstance was available on record which could warrant imposition of lesser penalty on the accused---Leave to appeal was declined to accused in circumstances.

Ch. Muhammad Anwar Khan, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 10th May, 2005.

SCMR 2008 SUPREME COURT 703 #

2008 S C M R 703

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Ghulam Rabbani, JJ

AYUB through L.Rs. and others----Petitioners

Versus

NISAR AHMED and others----Respondents

C.P. No.149-K of 2007, decided on 7th September, 2007.

Constitution of Pakistan (1973)---

----Art. 185(3)---Petition for leave to appeal---Limitation---Condonation of delay---Contention of counsel for petitioners was that second Appellate Court as well as two courts below having not considered the evidence in proper perspective, impugned judgment could not be sustained---Contention was repelled for the reason that petition was barred by 33 days---Counsel attempted to explain the delay by stating that no date of impugned judgment having been mentioned to facilitate computing period of limitation, there would be no question that petition was barred by time---On a question whether judgment was announced or after hearing the judgment was reserved or on a later date it was announced, counsel had no answer to give---Counsel being totally helpless could not show that petition was within time---No application for condonation of delay had been moved by counsel for petitioners---Concurrent findings of fact could not be interfered with in absence of any legal or factual infirmity with said findings.

Ghulam Qadir Jatoi, Advocate-on-Record for Petitioner.

Date of hearing: 7th September, 2007.

SCMR 2008 SUPREME COURT 705 #

2008 S C M R 705

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Faqir Muhammad Khokhar and M. Javed Buttar, JJ

Malik AMIR MUHAMMAD KHAN through L.Rs. and others----Petitioners

Versus

MUZAFFAR JAN alias MUZAFFAR KHANUM and others----Respondents

Civil Petition for Leave to Appeal No.1597(L) of 2000, decided on 20th December, 2004.

(On appeal from the judgment, dated 10-4-2000 of the Lahore High Court, Multan Bench, Multan passed in R.S.A. No.35 of 1990).

Specific Relief Act (I of 1877)---

----S. 12---Constitution of Pakistan (1973), Art.185(3)---Suit for specific performance of agreement of sale---Trial Court dismissed suit on the ground that agreement in question was executed by one who was not holding power-of-attorney of vendee in his favour---Findings of Trial Court were set aside by Appellate Court---Against order of Appellate Court, subsequent vendee filed Regular Second Appeal which was allowed vide impugned judgment---Both Trial Court and Appellate Court in second appeal had concluded on basis of material that power-of-attorney in question was not executed validly in favour of the alleged attorney and that alleged attorney had no right to enter into agreement of sale---Since the findings of fact recorded by Trial Court as well as Appellate Court were based on correct appraisal of evidence and no fault having been pointed out in them, no interference was called for in impugned judgment.

Zafar Iqbal Chaudhry, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 20th December, 2004.

SCMR 2008 SUPREME COURT 707 #

2008 S C M R 707

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Falak Sher and M. Javed Buttar, JJ

ALI SHER and others----Petitioners

Versus

THE STATE----Respondent

Criminal Petitions Nos.19-L, 115-L and Jail Petition No.155 of 2003, decided on 7th October, 2004.

(On appeal from the judgment, dated 4-12-2002 of the Lahore High Court, Lahore, passed in Criminal Appeal No.374, Criminal Revision No.230 and Murder Reference No.101 of 1998).

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

----S. 302/34---Reappraisal of evidence---Interested witnesses---Benefit of doubt---Direction of fire---Non-corroboration of ocular account with medical evidence---Occurrence had taken place at a service road along a Rajbah, at about 3-30 p.m.---Place from where the accused allegedly fired at deceased was six feet higher than the place where the deceased was present---According to post mortem report, the fires entered from lower side to upper side---Trial Court convicted both the accused and sentenced one to death penalty while the other to life imprisonment--Appeal before High Court was dismissed and conviction and sentence was maintained---Plea raised by the accused was that the eye-witnesses were interested and were not natural witnesses and prosecution failed to prove its case beyond doubt---Validity---Parties were inimical towards each other since the murder of father of one of the accused---Parties had strained relations with each other and were not even on speaking terms eversince the murder of the father of the accused---Two eye-witnesses who were closely related to the deceased could not be said to be strictly independent witnesses of the occurrence---Murder in question was not committed in a village or a town but on a service road running along a Rajbah, in the afternoon in the last days of the month of March---Such prosecution witnesses, besides not being independent witnesses, were also chance witnesses of the occurrence in question, it would be highly unsafe to base a conviction on the testimony of such two eye witnesses in the absence of any corroboration of their testimony from independent and unimpeachable source---Directions of the shots entering and leaving the body of the deceased should have been from upward to downwards but according to the description of the injuries as given by the doctor was not so and in fact in his opinion the direction of some of the injuries was from downward to upward---Such medical evidence was not in line with the ocular testimony or the eye-witnesses account and the same was not corroborated---Both the eye-witnesses were not independent and natural witnesses of the occurrence---Infirmities had been found in the prosecution case---Doubts had crept into the prosecution version of the occurrence---Possibility was that the occurrence had gone un-witnessed---No independent corroboration was available in support of the ocular testimony---Prosecution had thus failed to prove the guilt of the two convicts beyond all reasonable doubt---Convictions and sentences of both the accused were set aside and they were acquitted---Appeal was allowed.

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

----S. 302---Reappraisal of evidence---Sending of crime-empties---Delay---Crime empties allegedly found at the place of occurrence were retained in police station and were sent to Forensic Science Laboratory, along with the crime weapons, 12 days after the recovery of alleged weapons---Effect---Delay had destroyed the evidential value of such piece of evidence and the recoveries could not offer any corroboration to the ocular testimony.

Ch. Muhammad Hussain Chhachhar, Advocate Supreme Court with M.A. Qureshi, Advocate-on-Record for Petitioner (in C.P. No.19 of 2003).

Nemo for Petitioner (in Jail Petition No.155 of 2003).

Zafar Iqbal Chaudhry, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Petitioner (in Criminal Petition No.115-L of 2003).

Nemo for Respondents.

Date of hearing: 7th October, 2004.

SCMR 2008 SUPREME COURT 713 #

2008 S C M R 713

[Supreme Court of Pakistan]

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

MUHAMMAD ARSHAD and another----Petitioners

Versus

Mian NOOR AHMAD and others----Respondents

Civil Petition No.1593-L of 2005, decided on 16th August, 2005.

(On appeal from the judgment, dated 9-8-2005 of the Lahore High Court, Bahawalpur Bench passed in Writ Petition No.2751 of 2005/BWP).

Constitution of Pakistan (1973)---

----Art. 185(3)---Educational Institution---Date of birth of candidate---Determination of---Matriculation certificate of petitioner showed his date of birth as 11-12-1980 whereas in the birth certificate and identity card his date of birth was mentioned to be 25-12-1976---When petitioner filed his Admission Form for his appearance in Matriculation examination, he himself had mentioned 11-12-1980 as his date of birth---Date of birth shown in the birth certificate and identity card as 25-11-1976, in circumstances had no relevance because petitioner had never applied for its correction at any stage---Leave to appeal was refused.

Waqas Akram's case 2003 SCMR 145 ref.

Ch. Riyasat Ali, Advocate Supreme Court with M.A. Qureshi, Advocate-on-Record for Petitioners.

Muhammad Hanif Khatana, Additional Advocate-General, Punjab for A.-G. Punjab.

Date of hearing: 16th August, 2005.

SCMR 2008 SUPREME COURT 714 #

2008 S C M R 714

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and M. Javed Buttar, JJ

Mst. ANWAR BEGUM through LRs. and others----Petitioners

Versus

MUHAMMAD FAZIL and others----Respondents

Civil Petition No.2600/L of 2000, decided on 17th May, 2005.

(On appeal from the judgment, dated 11-10-2000 of the Lahore High Court, Multan Bench, Multan passed in C.M. No.890, 1636, 1637/C of 2000 in R.F.A. No.8 of 1989).

Civil Procedure Code (V of 1908)---

----S. 12(2)---Constitution of Pakistan (1973), Art.185(3)---Application for setting aside decree on plea of fraud and misrepresentation---High Court dismissed the application and declined to set aside decree on ground that no allegation of fraud or misrepresentation or even want of jurisdiction had been made out to impugn said decree---Even before Supreme Court it was not alleged that decree was obtained through fraud or misrepresentation or that decree in question had been passed without jurisdiction, but grievance of petitioner was that compromise on basis of which decree in question had been passed, was not being acted upon by the other side---Such was hardly a ground on which decree could be set aside under S.12(2), C.P.C.---Petition for leave to appeal was dismissed by Supreme Court accordingly.

Zafar Iqbal Ch., Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record (absent) for Petitioners.

Mehmood-ul-Islam, Advocate-on-Record for Respondents.

Date of hearing: 17 May, 2005.

SCMR 2008 SUPREME COURT 715 #

2008 S C M R 715

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi, Muhammad Qaim Jan Khan and Syed Zawwar Hussain Jaffery, JJ

MUHAMMAD RAFIQUE----Petitioner

Versus

MOHABBAT KHAN and others----Respondents

Criminal Petition No.83 of 2007, decided on 16th January, 2008.

(Against the judgment, dated 25-1-2007, passed by Lahore High Court, Rawalpindi Bench, in Criminal Appeal No.191 of 1995).

Penal Code (XLV of 1860)---

----Ss. 302/148/149---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---Principles---Accused were concurrently acquitted by Trial Court and High Court---Effect---Concurrent findings of two courts regarding acquittal of accused from charge neither suffered from serious factual or legal infirmity nor were perverse, calling for interference of Supreme Court---Complainant failed to satisfy the Supreme Court that acquittal of accused offended principle of safe administration of criminal justice and would not create double presumption of innocence in favour of accused---Supreme Court would decline to interfere in judgment of acquittal unless very strong reasons appeared on record regarding perversity of judgment---Mere fact that witnesses were natural and occurrence took place in daylight was not sufficient to believe or disbelieve evidence rather real test was whether witnesses were truthful and confidence inspiring in peculiar facts of the case to be relied upon for conviction---Prosecution evidence did not fulfil such test to the satisfaction of two courts and Supreme Court also did not find any good reason to differ with High Court---Leave to appeal was refused.

Khawaja Sultan Ahmad, Senior Advocate Supreme Court and Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Petitioner.

Sardar Muhammad Ishaq Khan, Senior Advocate Supreme Court for Respondents.

Date of hearing; 16th January, 2008.

SCMR 2008 SUPREME COURT 719 #

2008 S C M R 719

[Supreme Court of Pakistan]

Present Falak Sher and Syed Jamshed Ali, JJ

MUHAMMAD SADIQ----Petitioner

Versus

SUPERINTENDENT OF POLICE, OKARA and others----Respondents

Civil Petition No.2572-L of 2003, decided on 21st October, 2005.

(On appeal from the judgment, dated 15-7-2003 passed by Punjab Service Tribunal, Lahore in Appeal No.407 of 2002).

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

----R. 4---Civil Services Rules (Punjab), Rr.1.1, 1.2 & 1.4---Constitution of Pakistan (1973), Art.212(3)---Reduction in rank---Applicability of Rules---Punjab Police (Efficiency and Discipline) Rules, 1975, provided that in case of minor penalty, competent Authority was required to specify the period for which said penalty would remain in force---Rule 1.1 of Civil Services Rules, (Punjab) applied to police Force, but R.1.4 of said Rules had excluded application of said Rules to the persons for whose appointment and conditions of service, special provision was made under any law for the time being in force---Petition for leave to appeal was granted to consider whether R.1.2 of Civil Services Rules (Punjab) was applicable to police force in view of R.1.4 of said Rules; that in case said rule was found not to be applicable, then whether the reduction in rank of an official was intended to operate perpetually; that in case period during which the penalty had to remain operative, was required to be prescribed, then whether on expiry of said period, civil servant would automatically regain the post from which he was reverted or he would be required to undergo the process of selection to earn his promotion.

Muhammad Riaz and others v. Province of the Punjab through Secretary, Education Department, Punjab, Lahore and others 2004 SCMR 1437 ref.

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

Illahi Bukhsh, Inspector (Legal) for Respondent No.1. M. Iqbal Najam, Inspector (Legal) for Respondent No.2. Date of hearing: 21st October, 2005.

SCMR 2008 SUPREME COURT 721 #

2008 S C M R 721

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and M. Javed Buttar, JJ

HAMEED-UR-REHMAN through L.Rs. and others----Petitioners

Versus

CHIEF SECRETARY, GOVERNMENT OF PAKISTAN and others----Respondents

Civil Review Petitions Nos.5-L and 6-L of 2005, decided on 17th May, 2005.

(On review of the judgment, dated 22-12-2004 of this Court passed in Civil Petitions Nos.2747-L and 2748-L of 2002).

Constitution of Pakistan (1973)---

----Art. 188---Review of Supreme Court judgment---Advocate had not entered appearance to prosecute review petition and he was not willing to appear despite having drawn and signed review petition---Having drawn and signed petition, Advocate had incurred an obligation to appear and assist the Court in matter in question, but he had not cared to discharge his said obligation---Review petition was dismissed on that ground---Even otherwise no ground was made out for review by petitioner.

M.A. Qureshi Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 17th May, 2005.

SCMR 2008 SUPREME COURT 723 #

2008 S C M R 723

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Tassaduq Hussain Jillani, JJ

TOWN COMMITTEE, PIPLAN through Tehsil Nazim, Tehsil Piplan/Nazim Union Council Piplan----Petitioner

Versus

MUHAMMAD HANIF and others----Respondents

Civil Petition No.3402-L of 2001, decided on 26th August, 2004.

(On appeal from the order, dated 14-9-2001 passed by Lahore High Court, Lahore in Writ Petition No.16740 of 2001).

Punjab Agricultural Produce Markets Ordinance (XXIII of 1978)---

----S. 4(3)---Constitution of Pakistan (1973), Art. 185(3)---Administration of justice--High Court could have followed the principles enunciated in a judgment in which point raised in the present matter had been settled, or at least it should have taken into consideration the contentions which were raised by the parties before it and could have disposed of case by passing a speaking order instead of merely observing that Court had already decided all such questions---High Court had a duty to deal with all aspects of the cases after hearing counsel for parties and keeping in view facts and circumstances of case as well as precedent law, if available---In case, High Court having not passed impugned judgment in accordance with law, same was not maintainable---Petition was converted into appeal and impugned order was set side and case was remanded to High Court for fresh disposal after providing opportunity of hearing to all concerned.

Market Committee Khudian through its Administrator v. Town Committee Khudian through its Chairman 1992 SCMR 1043 ref.

Arif Chaudhry, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record for Petitioner.

Naveed Shahir Yar, Advocate Supreme Court and Haji M. Rafi Siddiqui, Advocate-on-Record for Respondents Nos.1, 3, 4 and 5.

M.A. Ghani, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Respondent No.2.

Raja Abdul Rehman, A.A.-G. along with A.H. Masood, Advocate Supreme Court for Respondents Nos.7 to 11.

Date of hearing: 26th August, 2004.

SCMR 2008 SUPREME COURT 725 #

2008 SCMR 725

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Falak Sher, JJ

CHIEF EXECUTIVE PROGRESSIVE PAPERS LIMITED/CHAIRMAN, NATIONAL PRESS TRUST, ISLAMABAD----Petitioner

Versus

JAMIL-UR-REHMAN and others----Respondents

Civil Petitions Nos.2708-L to 2709-L of 2004, decided on 11th May, 2005.

(On appeal from the judgment, dated 27-7-2004 of the Federal Service Tribunal at Lahore, passed in Appeals Nos.713 and 714(L) of 1998).

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Employees were dismissed from service simply on remaining absent from duty for two hours in case of one employee and for seven hours in case of the other---Service Tribunal set aside orders terminating services of said two employees and remanded case to employer for fresh proceedings in accordance with law to be held by a fair and impartial officer of the employer---Employer could not point out any illegality or infirmity in impugned judgment of Tribunal which could qualify. petitioner for grant of leave to appeal in terms of the Art.212(3) of the Constitution---Disciplinary proceedings against employees had been held by a privately engaged Advocate whose impartiality and independence was found to be open to exception---No exception could be taken to opinion of Tribunal or to impugned judgment which had left the employer free to hold fresh proceedings in the matter to determine the guilt or otherwise of the employees---Employer having dragged employees unnecessarily into litigation, employer was directed to pay costs to the employees.

Muhammad Ozair Chughtai, Advocate-on-Record for Petitioner in both Petitions).

Sh. Khizar Hayat, Advocate Supreme Court with Ch. Talib Hussain, Advocate-on-Record (absent) for Respondent No.1 (in both Petitions).

M. Rafiq Shad, Advocate Supreme Court and A.H. Masood, Advocate-on-Record for Respondent No.2 (in both Petitions).

Date of hearing: 11th May, 2005.

SCMR 2008 SUPREME COURT 727 #

2008 S C M R 727

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Ghulam Rabbani, JJ

Mrs. ZAIBA IQBAL----Petitioner

Versus

CHAIRMAN, NAB and others----Respondents

C.P.L.A. No.300-K of 2007, decided on 8th August, 2007.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 12 & 13---Criminal Procedure Code (V of 1898), Ss.516-A & 523---Constitution of Pakistan (1973), Art.185(3)---Impugned order was passed by consent of parties and it was not the case of petitioner that the property of petitioner was being disposed of pending the hearing of her petition before the Supreme Court---No issue, in circumstances, was left in the field for adjudication by the Supreme Court after the order of the Supreme Court passed in earlier petition for leave to appeal---If the petitioner would feel aggrieved by impugned order it was open to her to seek her remedy before the proper forum of law---No question of public importance having been made out in the petition, same was dismissed and leave refused.

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

SCMR 2008 SUPREME COURT 728 #

2008 S C M R 728

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Muhammad Akhtar Shabbir and Syed Sakhi Hussain Bokhari, JJ

Agha DINAL KHAN----Appellant

Versus

SAFFAR and Others-Respondents

Criminal Appeal No.225 of 2000, decided on 22nd January, 2008.

(On appeal from the judgment of High Court of Sindh at Karachi, dated 4-6-1998 passed in Conf. Case No.11 of 1992 and Criminal Appeal No.98 of 1992).

Penal Code (XLV of 1860)---

----Ss. 302/148/149---Delay in decision of appeal---Expectancy of life, principle of---Applicability---F.I.R. was registered on 3-7-1988 against accused who were arrested after a few days---Trial Court convicted the accused and awarded death sentence but High Court partly allowed the appeal on 4-6-1998 and converted death sentence into imprisonment for life---Validity---After commutation of death sentence of accused to imprisonment for life by High Court, accused had acquired an "expectancy of life" for the last about ten years when judgment of High Court was announced---Supreme Court, after so much lapse of time, declined to interfere with the judgment passed by High Court---Appeal was dismissed.

The State v. Rab Nawaz and another PLD 1974 SC 87; Mst. Nooran v. Noora and another PLD 1975 SC 04; Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others PLD 976 SC 452; Niaz Ahmad v. Naeem Akhtar 1977 SCMR 159; Mst. Razia Begum v. Jehangir and others PLD 1982 SC 302 and Muhammad Makhdoom and another v. The State 1984 SCMR 837 fol.

M. Afzal Siddiqui, Advocate Supreme Court for Appellant.

Qasim Mirjet, A.A.-G. for the State.

Date of hearing: 22nd January, 2008.

SCMR 2008 SUPREME COURT 733 #

2008 S C M R 733

[Supreme Court of Pakistan]

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

MIAN MUHAMMAD----Petitioner

Versus

MUHAMMAD SABIR and others----Respondents

Civil Review Petition No.390 of 2001, decided on 17th May, 2005.

(On review of judgment, dated 25-10-2001 of this Court passed in Civil Petition No.721-L of 2001).

Constitution of Pakistan (1973)---

----Art. 188---Specific Relief Act (I of 1877), S.12---Review of judgment and order by Supreme Court---Suit for specific performance of agreement---Regular second appeal filed by petitioner against judgment of Appellate Court, was dismissed by High Court in limine despite the fact that there were diverse findings of fact recorded by Trial Court and Appellate Court---High Court was required to deeply examine record in view of divergent opinions on facts between the Appellate and Trial Courts---Appeal in respect' of admissibility or otherwise of agreement in question also required to be examined in detail by the High Court for coming to the just conclusion---Order passed by High Court was recalled and case was remanded by Supreme Court, converting petition into appeal, for fresh decision by High Court in accordance with law after affording proper opportunity of hearing to all concerned.

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

Malik Yousaf Farooq, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record (absent) for Respondents.

Date of hearing: 17th May, 2004.

SCMR 2008 SUPREME COURT 736 #

2008 S C M R 736

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Falak Sher and Tassaduq Hussain Jillani, JJ

MEHMOOD AHMAD BUTT and another----Petitioners

Versus

RETURNING OFFICER, UNION COUNCIL N0.159/4 KAMOKE, DISTRICT GUJRANWALA and 2 others----Respondents

Civil Miscellaneous Application No.1157-L of 2005 in Civil Petition No.1528-L of 2005, decided on 10th August, 2005.

(On appeal from the order, dated 4-8-2005 passed .by Lahore High Court, Lahore in Writ Petition No.14117 of 2005).

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

---S. 152(1)(e)---Punjab Local Government Elections Rules, 2000, Rr.16 & 18---Constitution of Pakistan (1973), Art.185(3)---Election for seat of Nazim---Disqualification of candidate---Rejection of nomination papers---Nomination papers filed by candidate for election of seat of Nazim were rejected on ground that he was not a matriculate within contemplation of S.152(1)(e) of Punjab Local Government Ordinance, 2001---Petitioner who had obtained only 93 marks out of 850 marks in examination, could not be considered a matriculate or holder of a Secondary School Certificate.

Syed Sharif Hussain Bokhari, Senior Advocate Supreme Court with Mehmood-ul-Islam, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 10th August, 2005.

SCMR 2008 SUPREME COURT 737 #

2008 S C M R 737

[Supreme Court of Pakistan]

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

HASSAN DIN----Petitioner

Versus

SANAULLAH----Respondent

Civil Petition No.1284/L of 2001, decided on 19th April, 2005.

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

----S. 54---Constitution of Pakistan (1973), Art.185(3)---Re-sale of land---Crucial question on which fate of case hinged was the factum of re-sale of suit land by respondent to its original owner---High Court found that alleged endorsement on back of disputed sale-deed was no conveyance in the eyes of law and that opinion of Trial Court that alleged signatures of respondent on said endorsement, were similar to the admitted signatures of respondent, was not correct observation---Petitioner could not point out any factual or legal infirmity in the impugned judgment nor could it be shown that judgment was based on misreading of any evidence or that it was the result of non-reading of any material available on record---Petition for leave to appeal was dismissed.

Tassawar Hussain Qureshi, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 19th April, 2005.

SCMR 2008 SUPREME COURT 739 #

2008 S C M R 739

[Supreme Court of Pakistan]

Present: Falak Sher and Syed Jamshed Ali, JJ

ASIF ALI BUTT----Petitioner

Versus

PROVINCE OF PUNJAB and others----Respondents

Civil Petition No.574-L of 2001, decided on 3rd October, 2005.

(On appeal from the judgment passed by Punjab Service Tribunal, Lahore in Appeal No.46 of 2000, dated 1-1-2001).

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

----Ss. 7, 8 & 9---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan (1973), Art.212(3)---Petition for leave to appeal---Promotion and transfer---Suspension of lien---Restoration of original seniority---Petitioner working in Punjab Police, was transferred in Pakistan Railways Police in 1977 on his own request and written consent---Petitioner was promoted there as Senior Clerk in 1980 and was granted Selection grade (BS-9) in 1987---Lien of petitioner in Punjab Police was suspended in 1981---Petitioner on 21-9-1987, was reverted to Punjab Police as Junior Clerk on his own request and written consent and he was promoted as Senior Clerk on 26-4-1988 in Punjab Police---Representation of petitioner against suspension of Ws lien in Punjab Police and his prayer for restoration of his original seniority having been rejected and his appeal also having been dismissed by Service Tribunal, he had filed petition for leave to appeal before the Supreme Court against order of the Service Tribunal---Petitioner who initially was working in Punjab Police, was transferred to Railways Police on his own request and written consent, his confirmation in Pakistan Railways, would entail termination of his lien on the post previously held by him---Petitioner, otherwise had approached Departmental Authority with a representation against his suspension of lien after more than 10 years---No substantial question of law of public importance having been raised in the petition, same was dismissed.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 3rd October, 2005.

SCMR 2008 SUPREME COURT 741 #

2008 S C M R 741

[Supreme Court of Pakistan]

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

GHAZI KHAN----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.9-K of 2007, decided on 1st February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 526---Constitution of Pakistan (1973), Art.185(3)---Transfer of criminal case---Petitioner was aggrieved by order of High Court declining to transfer a Sessions case---Impugned order tended to reflect that Sessions Judge had denied adverse allegations levelled against him and stated that he had not pressurized any party to enter into a compromise---Three witnesses had been examined and on the date of hearing before the High Court, counsel for petitioner did not appear and he wilfully chose to remain absent taking it for granted that hearing would be adjourned---Such was absolutely a wrong concept on the part of the counsel and if he was not diligent, he could not claim adjournment as of right and hearing in the matter---In absence of any ground for interference and no question of law of public importance being spelt out, petition for leave to appeal was dismissed.

Ghulam Qadir Jatoi, Advocate-on-Record for petitioner.

SCMR 2008 SUPREME COURT 742 #

2008 S C M R 742

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Muhammad Akhtar Shabbir, JJ

MUHAMMAD MUSHTAQ and another----Petitioners

Versus

THE STATE----Respondent

Civil Petition No.474 of 2005, decided on 17th December, 2007.

(On appeal from judgment of Peshawar High Court, Peshawar, dated 16-11-2005 passed in Criminal Appeal No.672 of 2005).

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

----S. 9(c)---Evidence of police officials---Value---Police officials are also competent witnesses and their testimony cannot be discarded merely for the reason that they were employees of the police force.

Shoukat Khan v. State 2003 PCr.LJ 324 and Muhammad Azam v. State PLD 1996 SC 67 rel.

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

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S.103---Constitution of Pakistan (1973), Art. 185 (3)---Reappraisal of evidence---Recovery of narcotics---Non-compliance of provisions of S.103 Cr.P.C.---Failure to produce recovered narcotics before Trial Court---Raising of new plea---Competency---Charas weighing 28 Kgs and opium weighing 12 Kgs were recovered and taken into possession from the car in which accused persons were travelling---Trial Court convicted the accused under S.9(c) of Control of Narcotic Substances Act, 1997 and imposed imprisonment for life, which sentence was maintained by High Court---Plea raised by accused persons was that recovered narcotic was not produced before Trial Court and provisions of S.103 Cr.P.C. were not complied with during recovery---Validity---Accused did not challenge nature of recovery substance being Charas and Opium before Trial Court or High Court, therefore, they could not turn around and say that the recovered material which was not produced at the time of trial of the case in court was other than narcotics---Prosecution witnesses were not even suggested by accused to produce remaining case property in court---Accused had neither objected nor prayed before Trial Court that entire case property should be sent to chemical examiner for his report nor they challenged that it was not the narcotic substance, thus such objection could not be raised before Supreme Court---Application of S.103 Cr.P.C. to offence under Control of Narcotic Substances Ordinance, 1997 was excluded by S.25 of the said Act---Evidence of prosecution witnesses was straight, natural and reliable which was not shaken in any way by defence---No ill will or animosity against prosecution witnesses/police employees before occurrence had been pointed out or existed prior to the occurrence---Accused failed to point out any error of law or misreading of evidence in the judgment passed by High Court which could result into miscarriage of justice---Supreme Court declined to interfere with the judgment passed by High Court---Leave to appeal was refused.

State v. Muhammad Naseer 1993 SCMR 1822 ref.

Ali Muhammad v. State 2002 SCMR 54; State v. Muhammad Amin 1999 SCMR 1367 and Muhammad Hanif v. State 2003 SCMR 1237 rel.

Hafiz S.A. Rehman for Petitioners.

Niar Ahmad Rathore, Deputy Attorney-General for Pakistan and Qari Abdul Rashid, Advocate Supreme Court for the State.

Date of hearing; 17th December, 2007.

SCMR 2008 SUPREME COURT 748 #

2008 S C M R 748

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and M. Javed Buttar, JJ

MUHAMMAD IQBAL and others----Petitioners

Versus

Hakeem IHSAN ULLAH QURESHI----Respondent

Civil Petition No.2846-L of 2000, decided on 25th May, 2005.

(On appeal from the judgment, dated 25-10-2000 of the Lahore High Court, Lahore, passed in R.S.A. No.371 of 1979).

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

----Ss. 6 & 13---Transfer of Property Act (IV of 1882), S. 54---Constitution of Pakistan (1973), Art.185(3)---Proportionate contribution by vendees towards sale price of land---Sinker, principle of---Applicability---Appellate Court below and High Court, had concurrently found that there being no proof of proportionate contribution by vendees towards sale price of suit-land, petitioners could not show as to how the present case was one of misreading of any piece of evidence or a case where two Appellate Courts had omitted to consider any material available on record---Mere possibility that a conclusion different from one concurrently reached by two Courts, could also be arrived at was hardly a ground which could justify interference by Supreme Court with such concurrent conclusions---No exception could be taken to impugned judgment of High Court as a result whereof petitioners had been non-suited on the basis of principle of sinker.

Syed Riazul Hassan Gillani, Senior Advocate Supreme Court for Petitioner.

Ch. Attaullah, Advocate Supreme Court for Respondent.

Date of hearing: 25th May, 2005.

SCMR 2008 SUPREME COURT 749 #

2008 S C M R 749

[Supreme Court of Pakistan]

Present: Falak Sher, Mian Shakirullah Jan and Tassaduq Hussain Jillani, JJ

PROVINCE OF THE PUNJAB, through District Officer, Toba Tek Singh and others----Petitioners

Versus

NAZIR AHMED and 9 others----Respondents

Civil Petition No.996-L of 2004, decided on 23rd June, 2005.

(On appeal from the judgment, dated 12-12-2003 passed by Lahore High Court, Lahore in Civil Revision No.1485 of 1998).

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

----Ss. 16 & 30(2)---Specific Relief Act (I of 1877), Ss.42 & 54---Constitution of Pakistan (1973), Art.185(3)---Suit for declaration and permanent injunction---Allotment of land---Cancellation of allotment---Claim in the suit was that plaintiff was transferee of suit land from its original allottee, but Board of Revenue cancelled allotment of original allottee without notice to the plaintiff who was subsequent vendee---Suit filed by plaintiff was concurrently decreed by Courts below including the High Court---Validity---In absence of any misreading or non-reading of evidence judgment of Courts below and High Court could not be interfered with, especially when all points raised before High Court found properly attended to and reasonably met.

Raja Abdul Rehman, A.A.-G. along with Ch. A.H. Masood, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 23rd June, 2005.

SCMR 2008 SUPREME COURT 751 #

2008 S C M R 751

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Falak Sher and Tassaduq Hussain Jillani, JJ

MUMTAZ ALI and others----Petitioners

Versus

DISTRICT RETURNING OFFICER and others----Respondents

Civil Petition No.1486-L of 2005, decided on 8th August, 2005.

(On appeal from the judgment/order of the Lahore High Court, Lahore, dated 30-7-2005 passed in Writ Petition No.13861 of 2005).

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

----S. 152(1)(d)---Punjab Local Government Elections Rules, 2000, Rr.16 & 18---Constitution of Pakistan (1973), Art.185(3)---Conversion of petition into appeal---Election for seats of Nazim and Naib Nazim---Disqualification of candidate---Rejection of nomination papers---Nomination papers filed by petitioners for election of Nazim and Naib Nazim were rejected on the ground that one of the petitioners was convicted and sentenced to two years' R.I. in criminal case registered against him under Art.11 of Prohibition (Enforcement of Hadd) Order, 1979 as he was found to be under influence of alcohol---Said petitioner was a juvenile at the time of said incident with no previous history nor he had indulged into any objectionable/unlawful activity ever since---Complained incident had taken place 12 years back when he was juvenile for which he was placed under probation for enabling him to be a good citizen and subsequent to that nothing was available on record justifying to hold him disqualified to contest election within contemplation of S.152(1)(d) of Punjab Local Government Ordinance, 2001---Converting petition into appeal, same was allowed and impugned order was set aside allowing to petitioners to contest elections.

Aitzaz Ahsan, Senior Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Petitioners.

Dr. Muhammad Mohy-ud-Din Qazi, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Respondents Nos.3 and 4.

Date of hearing: 8th August, 2005.

SCMR 2008 SUPREME COURT 754 #

2008 S C M R 754

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Mian Muhammad Ajmal and Khalil-ur-Rehman Ramday, JJ

DISTRICT EDUCATION OFFICER, KASUR and others----Petitioners

Versus

Miss JAMIL AKHTAR---Respondent

Civil Petition for Leave to Appeal No.2051-L of 2003, decided on 17th January, 2004

(On appeal from the judgment, dated 27-5-2003 of the Punjab Service Tribunal, Lahore, passed in Appeal No.239 of 2003).

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

----Ss. 3 & 10---Punjab Service Tribunals Act (IX of 1974), S. 4---Constitution of Pakistan (1973), Art.212(3)---Removal from service---Petition had been filed against judgment of Tribunal whereby appeal filed by employee against her removal from service had been accepted---Contention, that employee was not appointed by Recruitment Committee, but was appointed on recommendation of Deputy Commissioner, had not been taken by authorities before Service Tribunal nor the letter on basis of which Deputy Commissioner recommended employee's appointment, was mentioned by authorities in their parawise comments---Said contention for the first time could neither be considered nor permitted to be raised at belated stage---Dismissal of Deputy District Education Officer who verified the appointment of employee as correct, could not be considered as circumstance to non-suit employee at belated stage particularly when no such plea was taken before Service Tribunal---Petition was dismissed and leave refused.

Muhammad Riaz Lone, Advocate Supreme Court and Rao Muhammad Yusuf Khan, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 17th February, 2004.

SCMR 2008 SUPREME COURT 756 #

2008 S C M R 756

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Muhammad Akhtar Shabbir and Zia Perwez, JJ

AMIR ABDULLAH KHAN----Petitioner

Versus

KAFAYATULLAH KHAN----Respondent

Civil Petition No.176 of 2007, decided on 28th January, 2008.

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

----Ss. 6 & 13---Constitution of Pakistan (1973), Art.185(3)---Suit for pre-emption---Making of Talbs---Suit, for pre-emption was dismissed throughout on the ground that pre-emptor had failed to satisfy requirements of Talb-e-Muwathibat---Nigh Court as well as subordinate courts had justifiably recorded concurrent findings of fact on the point of non-performance of Talb-e-Muwathibat---In absence of non-reading or misreading of material evidence, Supreme Court could not be expected to substitute such findings---No question of law of public importance was involved in the petition for leave to appeal---Impugned judgment of High Court was plainly correct to which no exception could be taken---Case being not fit for grant of leave to appeal, petition was dismissed.

Muhammad Munir Peracha, Advocate Supreme Court for Petitioner.

Saif-ul-Haq Ziay, Advocate Supreme Court for Respondent.

SCMR 2008 SUPREME COURT 757 #

2008 S C M R 757

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Falak Sher and M. Javed Buttar, JJ

Mst. SHARIFAN BIBI and others----Petitioners

Versus

Malik SHARIF PARVEZ and others----Respondents

Civil Petition No.124-L of 2002, decided on 12th October, 2004.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 15-10-2001 passed in Civil Revision No.1618 of 2001).

Specific Relief Act (I of 1877)---

----S. 12---Civil Procedure Code (V of 1908), O.VII, R.11---Constitution of Pakistan (1973), Art.185(3)---Suit for specific performance of agreement---Application for rejection of plaint---Application submitted by petitioner under O.VII, R.11, C.P.C. praying for rejection of plaint, was dismissed by Trial Court and then by High Court---Petitioner had failed to show any illegality in exercising discretion by the Courts including High Court in refusing to reject plaint and opting to have the matter tried so that rights of the parties could be identified and determined after a proper trial in the matter petition for leave to appeal was dismissed.

Muhammad Yousaf v. Munwar Hussain 2000 SCMR 204 and Hayat Muhammad v. Tajuddin 1994 SCMR 1188 ref.

Sh. Abdul Aziz, Advocate Supreme Court and Tanvi Ahmad, Advocate-on-Record Petitioners.

Ch. Mehdi Khan Mehtab, Advocate-on-Record for Respondent No. 1.

Nemo for Respondents Nos.2 to 4.

Date of hearing: 12th October, 2004.

SCMR 2008 SUPREME COURT 759 #

2008 S C M R 759

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Tassaduq Hussain Jillani, JJ

Dr. GHAFOOR HUSSAIN and another----Petitioners'

Versus

PUNJAB PROVINCE and others----Respondents

Civil Petitions Nos.1941-L and 1942-L of 2001, decided on 28th December, 2004

(On appeal from judgment, dated 29-3-2001 of the Punjab Service Tribunal, Lahore passed in Appeals Nos.3037 and 3038 of 2000).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----Rr. 3 & 4(1)(b)(iii)---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan (1973), Art. 212(3)---Compulsory retirement---Petition for leave to appeal---Petitioners being doctors were proceeded against departmentally for issuing false medical certificate regarding post-mortem of deceased who had died in police custody---During inquiry allegations of negligence were duly established against petitioners and they were retired compulsorily from service---Appeals filed by petitioners were dismissed by Service Tribunal vide impugned order---Service Tribunal had discussed material available on record at length without omitting to take into consideration any document/material produced by petitioners---When an order had been passed justly and properly in exercise of jurisdiction conferred upon Tribunal, no interference was called for by Supreme Court---Petition was dismissed.

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

Nemo for Respondents.

Date of hearing: 28th December, 2004.

SCMR 2008 SUPREME COURT 760 #

2008 S C M R 760

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Falak Sher, JJ

PROVINCE OF THE PUNJAB and others----Petitioners

Versus

MUNSHI KHAN----Respondent

Civil Petition No.2279-L of 2000, decided on 22nd December, 2004.

(On appeal from the judgment, dated 21-6-2004 of the Lahore High Court, Lahore, passed in Civil Revision No.1462 of 2000).

Land Acquisition Act (I of 1894)---

----Ss. 4 & 12---Constitution of Pakistan (1973), Art. 185(3)---Acquisition of land---Entitlement to compensation---Contention of petitioner Government was that as it had been decided by Chief Minister that since landowners through whose land the road in question was to pass, were to be beneficiaries of construction of said road, they would not be allowed any compensation for their land which was taken over for said purpose---Validity---Said road had not been constructed for benefits of respondent alone, and it was the public-at-large who was to be benefited from same---Respondent could not be asked to take entire burden---Matter stood concluded by concurrent findings of three Courts including High Court---Petition for leave to appeal being a frivolous, was dismissed with costs.

Mian Ghulam Hussain, Advocate Supreme Court with Rao Muhammad Yousuf Khan, Advocate-on-Record and Zulqarnain, D.D.O. Roads for Petitioners.

Nemo for Respondent.

Date of hearing: 22nd December, 2004.

SCMR 2008 SUPREME COURT 762 #

2008 S C M R 762

[Supreme Court of Pakistan]

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

MUBASHAR AHMED----Petitioner

Versus

Mst. ZAHIDA PARVEEN and others----Respondents

Civil Petition No.235-L of 2001, decided on 20th June, 2005.

(On appeal from the judgment, dated 17-11-2000 of the Lahore High Court, Lahore passed in Writ Petition No.346 of 2000).

Specific Relief Act (I of 1877)---

----S. 12-Constitution of Pakistan (1973), Art.185(3)---Suit for specific performance of agreement---Petitioner filed written statement wherein execution of agreement between parties was not denied, but he subsequently moved application for amendment of written statement and for permitting him to deny execution of agreement at a belated stage after 18 years, which application was finally dismissed by High Court---No jurisdictional defect was found in the impugned judgment, passed by High Court---All three courts were justified in taking the view that petitioner had sought to change the very basis of his written statement by introducing a new element of denial of execution of agreement---High Court had rightly held that it would change defence of petitioner if he was allowed to amend his written statement after a period of 18 years---In absence of any legal infirmity in the impugned judgment passed by High Court leave to appeal was refused.

Malik Amjad Pervaiz, Advocate Supreme Court and C.M. Lateef, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 20th June, 2005.

SCMR 2008 SUPREME COURT 763 #

2008 S C M R 763

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J., Muhammad Moosa K. Leghari and Ch. Ejaz Yousaf, JJ

RAZAKAR HUSSAIN SHAH----Petitioner

Versus

D.I.-G. and others----Respondents

Civil Review Petition No.5 of 2005 in Civil Appeal No.5 of 2003, decided on 16th January, 2008.

(Review on the judgment of this Court, dated 9-2-2004 in Civil Appeal No.5 of 2003).

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

----Rr. 4, 5 & 12---Charge-sheet contained six charges against. official---Inquiry Officer exonerated the official from five charges, but recommended punishment of his absence from duty---Competent Authority, while disagreeing with Inquiry Officer, recommended major penalty of reduction in pay scale by one stage---Inspector-General of police during revision proceedings issued show cause to the official repeating contents of original charge-sheet containing all six charges---Award of major penalty of dismissal from service by Inspector-General of Police---Validity---High Officers enumerated in R.12 of Punjab Police (Efficiency and Discipline) Rules, 1975 had power to call for record of awards of penalties made by their subordinates for purpose of confirming/enhancing/modifying or annulling same, but they would have no authority to revise orders, whereby an official had been exonerated of charges---Inspector-General of Police had acted beyond his authority while re-examining charges from which the official was exonerated by Inquiry Officer and whose act was further confirmed by competent authority---Impugned order was set aside in circumstances.

Inspector-General of Police v. Habibur Rehman Abro 2005 SCMR 654 rel.

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

----R. 12---Order of Inquiry Officer exonerating police official from charges---Validity---Revising Authority could not revise such order, but could only call for record of proceedings in which an official was found guilty of charge and awarded some penalty for purpose of confirming/enhancing/modifying or even annulling same---Principles.

Inspector-General of Police v. Habibur Rehman Abro 2005 SCMR 654 rel.

----Art. 188---Supreme Court Rules, 1980, O.XXVI, R.1---Review of Supreme Court judgment---Scope---Important point of law raised in petition for leave to appeal and argued by petitioner, but was not taken note of by the Court while recording judgment under review---Validity---Power of review was quite narrow and limited, which would be exercised quite sparingly and only in exceptional cases, in which some important aspects of matter escaped notice of the Court or was not considered and such error was apparent in judgment under review---Such point of law had escaped notice of Supreme Court while recording judgment under review., which error needed to be rectified---Supreme Court accepted review petition in circumstances.

Wasim Sajjad, Senior Advocate Supreme Court assisted by Idrees Ashraf and Arshad Ali Ch., Advocate-on-Record for Petitioner.

Qazi Muhammad Amin, Additional Advocate-General, Punjab, Raja Muhammad Saeed Akram, Assistant Advocate-General and Muhammad Arshad, Inspector Legal, Okara for Respondents.

SCMR 2008 SUPREME COURT 773 #

2008 S C M R 773

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas, and Hamid Ali Mirza, JJ

Lt. MUQUDDUS HAIDER----Petitioner

Versus

FEDERAL PUBLIC SERVICE COMMISSION through Chairman, Islamabad----Respondent

Civil Petition No.2016 of 2003 converted into appeal and appeal, decided on 20-10-2004.

(On appeal from the judgment, dated 18-6-2003 in Writ Petition No.1034 of 2003 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi).

(a) Notification---

----Notification or Government's Policy---Retrospectivity---Notification or Governments' policy could not take effect retrospectively---Principles.

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

----Art. 27, proviso---Civil Service of Pakistan, vacancies in---Regional/provincial quotas, reservation of---Object stated.

Reservation/quota system has been introduced to secure adequate representation in the service of qualitative inadequacy of representation for the persons belonging to socially and educationally backward class or area, so that they should have adequate representation in the lowest rung of service for which they aspire to secure adequate representation in the selection posts in the services as well, as such quota is being approved by the Government so as to give effect to the intention of the Constitution-makers in order to make adequate safeguards for the advancement of backward classes and to secure their adequate representation in the services.

---S. 7(3)---Central Service of Pakistan, vacancies in---Selection of candidates against reserved quotas by Federal Public Service Commission---Commission recommending petitioner for appointment against such seat finding him better on merit than respondent on basis of policy decision of Government---Validity---Such appointment had not violated or infringed provisions of the Constitution---Respondent was not legally entitled to be appointed against such seat.

(d) Federal Public Service Commission Ordinance (XLV of 1977)---

----S. 7(3)-Constitution of Pakistan (1973), Arts.27 & 199---Central Service of Pakistan, vacancies in---Selection of candidates against Provincial quotas---Federal Public Service Commission not recommended petitioner for appointment against such vacancy---Constitutional petition by petitioner against such decision of Commission---Maintainability---Constitutional petition was not maintainable without exhausting statutory alternative efficacious remedy available to the petitioner.

(e) Federal Public Service Commission Ordinance (XLV of 1977)---

---S. 7(3)---Constitution of Pakistan (1973), Arts.27, 185(3) & 199---Central Service of Pakistan, vacancies in---Selection of candidates against reserved quotas---Federal Public Service Commission not recommended petitioner for appointment against such seat---Constitutional petition by petitioner against such decision of Commission without impleading successful candidate as party---Acceptance of constitutional petition by High Court---Failing of intra-Court appeal by successful candidate and its dismissal on technical ground for being not competent--Delay in filing petition for leave to appeal before Supreme Court by successful candidate---Validity---Successful candidate had made out sufficient cause for condoning such delay---Supreme Court condoned delay in circumstances.

Haji Hussain Haji Dawood through Legal Heirs and others v. M.Y. Kherati 2002 SCMR 343 rel.

Ch. Muhammad Shafi v. Settlement and Rehabilitation Commissioner, Lahore and others PLD 1972 Lah. 187 and Abdul Aziz and others v. Sheikh Abdur Rahim and others PLD 1984 SC 164 distinguished.

Sahibzada Anwar Hamid, Advocate Supreme Court for Petitioner.

Ms. Nahida Mehboob Elahi, Deputy Attorney-General for Respondents Nos. 1 and 2.

Muhammad Akram Sheikh, Senior Advocate Supreme Court and Ch. Muhammad

Akram, Advocate-on-Record for Respondent No.3.

Date of hearing. 20th October, 2004.

SCMR 2008 SUPREME COURT 782 #

2008 S C M R 782

[Supreme Court of Pakistan]

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

ADDITIONAL COLLECTOR OF CUSTOMS APPRAISEMENT-III CUSTOMS HOUSE, KARACHI--Petitioner

Versus

Messrs WORLDWIDE MOTORS (PVT.) LTD., KARACHI-Respondent

Civil Review Petitions Nos.10-K to 25-K of 2002, decided on 28th June, 2004.

(On review from the judgment, dated 11-12-2001 passed by this Court passed in C.Ps. Nos.897-K to 912-K of 2001).

Constitution of Pakistan (1973)---

----Art. 188---Review of Supreme Court judgment---Limitation---Petitions were hopelessly barred by time and applications seeking condonation of delay were not entertainable as no plausible ground was mentioned therein to show indulgence in that behalf---Review petitions were dismissed being barred by time.

Raja Irshad Ahmed, Deputy Attorney-General and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 28th June, 2004.

SCMR 2008 SUPREME COURT 784 #

2008 S C M R 784

[Supreme Court of Pakistan]

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

MUHAMMAD WARIS----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.571-L of 2001, decided on 5th July, 2005.

(On appeal from the judgment, dated 1-8-2001 of the Lahore High Court, Multan Bench, Multan, passed in Criminal Appeal No.382 of 1998 and Murder Reference No.451 of 1998).

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

----S. 302(b)---Constitution of Pakistan (1973), Art. 185(3)---Eyewitnesses, no doubt, were closely related to the deceased, but no ill-will, animosity or reason was brought on record by the defence to prompt them to falsely implicate the accused in the case and to substitute him for the actual offender---Accused was specifically named in the promptly. lodged F.I.R. with the role of having caused the death of the two persons---Names of both the eye-witnesses were also recorded in the said F.I.R., which could not have been mentioned therein if they had not been with the deceased at the time of their death---Eye-witnesses had explained their presence at the place of occurrence at the relevant time and thus, they were natural and independent witnesses of the incident---Medical evidence was not destructive of the ocular testimony---Occurrence having taken place on a road side in broad-daylight, the same could not have gone un-witnessed and the accused could not have escaped unidentified---Accused had showered bullets even on an unconcerned person killing him which showed his brutality and callousness disentitling him to any sympathy or leniency---Leave to appeal was declined in circumstances.

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

----S. 302(b)---Appreciation of evidence---Corroboration---Principles---Corroboration is only rule of caution and not a rule of law---If the eye-witness account is found reliable and trustworthy then there is hardly any need to look for any corroboration.

Malik Nazar Farid Khokhar, Advocate Supreme Court with Ch. Talib Hussain, Advocate-on-Record for Petitioners.

Nemo for the State.

Date of hearing: 5th July, 2005.

SCMR 2008 SUPREME COURT 787 #

2008 S C M R 787

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Tassadduq Hussain Jillani, JJ

Mst. SALMA SHAHIDA---Petitioner

Versus

THE STATE-Respondent

Criminal Petitions Nos. 491-L and 495-L of 2003, decided on 26th August, 2004.

(On appeal against the judgment/Order, dated 14-5-2003 passed by Lahore High Court, Lahore in Criminal Appeal No.1564 and 1565-L of 2000).

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

----Ss. 409/420/468/471---Prevention of Corruption Act (II of 1947), S.5(2)---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Corruption and misappropriation of Government funds---Return of amount misappropriated---Accused being Drawing and Disbursing Officer, misappropriated the salaries of staff---Amount so misappropriated was recovered from her possession---Employees to whom salaries were not paid, they had appeared as prosecution witnesses and fully supported the case---According to Handwriting Expert, the accused had forged the signatures of some of the employees on the documents---Trial Court convicted the accused and sentenced her to nine months imprisonment and was also awarded fine---Conviction and sentence awarded by Trial Court was maintained by High Court---Plea raised by the accused was that the embezzled amount had been returned by her and there was no loss to public exchequer---Validity---Such plea had gone against the accused as she initially committed misappropriation of the Government money, may be temporarily, but later on, under the fear of prosecution of case, she got recovered the amount which was misappropriated by her by forging the signatures of some of the employees and tampering with the record---Even before registration of the case, salaries of some of the persons were paid by the accused---Prosecution had successfully established guilt against the accused---Supreme Court declined to interfere with the conviction and sentence awarded to the accused---Leave to appeal was refused.

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

----Ss. 233 & 537---Misjoinder of charge---Irregularity---Plea raised by the accused was that the proceedings suffered for misjoinder of charge---Effect---Even if it was presumed that the proceedings suffered from misjoinder of charges, the same could be cured under the provisions of S.537, Cr.P.C.

M. Anwar Bhaur, Advocate Supreme Court and M. Ozair Chughtai Advocate-on-Record (absent) for Petitioner.

Raja Abdul Rehman, A.A.G. and Mian Abdul Qayyum Anjum, Advocate Supreme Court for the State.

Date of hearing: 26th August, 2004.

SCMR 2008 SUPREME COURT 796 #

2008 SCMR 796

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Muhammad Akhtar Shabbir and Syed Sakhi Hussain Bokhari, JJ

ZULFIQAR ALI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.424 of 2007, decided on 21st February, 2008.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 12-12-2006 passed in Criminal Appeal No.1640 of 2001 and Murder Reference No.26 of 2002).

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to accused to consider the question whether in the peculiar facts and circumstances of the case accused deserved to be awarded lesser penalty of imprisonment for life instead of death sentence.

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

----S. 302(b)---Appraisal of evidence---Accused had admitted his presence in the house of the complainant in his statement under S.342, Cr.P.C. and in a way had strengthened the prosecution case---Absence of motive or failure to prove the motive would not adversely affect the case of prosecution if the same had been proved by reliable evidence---Accused was armed with a pistol at the spot meaning thereby that he was fully prepared that if he was halted he would use the same---When complainant entered the room and found the accused; the latter brought out his pistol and made effort to decamp from the spot---When the deceased tried to stop him he fired at her taking her life---Sufficient evidence was present on record to establish the guilt of accused which was quite enough to hold that accused intended to cause of death of the deceased, who was having a child in her womb---Non-repeating of second fire shot was not a ground for lesser punishment---Accused had fired a fatal shot upon the deceased which caused her death, therefore, there was no question of any benefit being extended to him---Minor age of accused was also not established---Conviction and sentence of death of accused were upheld in circumstances.

Syed Hamid Mukhtar Shah v. Muhammad Azam 2005 SCMR 427; Hameed Khan alias Hameedai v. Ashraf Shah 2002 SCMR 1155 and Arshad Ali alias Achhu v. The State 2002 SCMR 1806 ref.

----S. 302(b)---Sentence---Non-repetition of fire---Effect---Where a fire-arm is aimed at the chest of the victim and accused causes fatal injuries on the said vital area, then non-repetition of the said act is hardly of any consequence in the matter of determining the quantum of punishment deserved by him.

Syed Hamid Mukhtar Shah v. Muhammad Azam 2005 SCMR 427 ref.

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

----S. 302(b)---Sentence---Absence of motive---Principle---Inadequacy or weakness of motive or failure to prove the motive is immaterial if the accused is found guilty of causing the murder of the deceased and he does not deserve any leniency, because the only punishment awardable to him in such-like circumstances would be the sentence of death.

Syed Hamid Mukhtar Shah v. Muhammad Azam 2005 SCMR 427 and Hameed Khan alias Hameedai v. Ashraf Shah 2002 SCMR 1155 ref.

M. Zaman Matti, Advocate Supreme Court for Appellant.

Mian Asif Mumtaz, D.P.-G. for the, State.

Date of hearing: 21st February, 2008.

SCMR 2008 SUPREME COURT 801 #

2008 SCMR 801

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Faqir Muhammad Khokhar and M. Javed Buttar, JJ

TEHSIL MUNICIPAL ADMINISTRATION and others----Petitioners

Versus

TALIB HUSSAIN and others----Respondents

Civil Petitions Nos.2722 and 3167-L of 2004, decided on 23rd February, 2005.

(On appeal from the judgment, dated 20-10-2004 of the Lahore High Court, Lahore passed in Writ Petition No.1600 of (sic)).

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

----R. 3---Constitution of Pakistan (1973), Art.185(3)---Contract of auction of collection rights---Petitions were disposed of with the consent of parties in the terms that contract of auction of collection rights in the District was declared contrary to provisions of Punjab Local Government (Auctioning of Collection Rights) Rules, 2003; that pending process of re-auction, Tehsil Municipal Administration would continue collecting fee of transfer of properties as it was doing prior to 1st February, 2005---Respondent would apply for enlistment to District Council and his application along with application of anyone else, if applied for enlistment, would be disposed of within a period of one week; that re-auction of right of collection would be carried out in accordance with Punjab Local Government (Auctioning of Collection Rights) Rules, 2003---Petitions were converted into appeals and disposed of accordingly.

Talib H. Rizvi, Senior Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioners (in C.P. No.2722 of 2004).

Ms. Afshan Ghazanfar, A.A.-G. for Respondent No.2 (in C.P. No.2722 of 2004).

M.A. Zafar, Advocate Supreme Court for Respondent No.3 (in C.P. No.2722 of 2004).

M.A. Zafar, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners (in C.P. No.3167-L of 2004).

Syed Najamul Hassan Kazmi, Advocate Supreme Court and Malik Rashid Ahmad, Tehsil Nazim for Respondents (in C.P. No.3167-L of 2004).

Date of hearing: 23rd February, 2005.

SCMR 2008 SUPREME COURT 803 #

2008 S C M R 803

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

HUSNAIN HAIDER SIAL---Petitioner

Versus

TAYYAB alias ASHRAF and 2 others---Respondents

Criminal Petition for Leave to Appeal No. 641-L/1999, decided on 14th June, 2004.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 12-4-1999 passed in Criminal Appeal No.219 of 1999).

Penal Code (XLV of 1860)---

----Ss. 324 & 337-H (ii)---Reappraisal of evidence---Ineffective firing---Acquittal of accused---Police found the accused innocent during investigation and sought for their release---Trial Court issued several notices to the complainant but he did not appear before the Trial Court, therefore, the accused were acquitted---Appeal against the order of acquittal was dismissed by High Court---Validity---Complainant failed to offer any plausible explanation for his absence to prosecute the case---Accused persons were found innocent by police during investigation of the case---Neither S.324 nor S.337-H(ii) P.P.C. was attracted as the offences related to human body, whereas in the present case firing had been alleged at the door of the house and no empty had been recovered from the spot---No legal infirmity was found in the judgment passed by High Court---Leave to appeal was refused.

M. Dilawar Mahmood, Senior Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate-on-Record for Petitioner.

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

Date of hearing: 14th June, 2004.

SCMR 2008 SUPREME COURT 805 #

2008 S C M R 805

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Ch. Ijaz Ahmed, JJ

AMNA RANI and others----Petitioners

Versus

ASHFAQ AHMAD and others----Respondents

Civil Petition No.2406/L of 2006, decided on 19th December, 2006.

(On appeal from judgment/order, dated 5-9-2006, passed by the Lahore High Court, Lahore, in Civil Revision No.1700 of 2006).

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

----S. 54---Constitution of Pakistan (1973), Art.185(3)---Respondents claimed that registered sale deed purportedly executed by the petitioner in favour of his wife, on the strength of a general power of attorney was invalid, fictitious and ineffective qua their rights---High Court as well as first Appellate Court had recorded concurrent findings of fact holding that due execution of the general power-of-attorney as well as the registered sale-deed by petitioner in favour of his wife, was not proved in accordance with law---No misreading or non-reading of evidence was pointed out---Nothing was on record to show that petitioner being general attorney had obtained any permission from the principal for the purposed sale of suit land in favour of his wife---Impugned judgment was plainly correct to which no exception could be taken.

N.A. Butt, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 19th December, 2006.

SCMR 2008 SUPREME COURT 806 #

2008 S C M R 806

[Supreme Court of Pakistan]

Present: Falak Sher, Mian Shakirullah Jan and Tassaduq Hussain Jillani, JJ

MUHAMMAD ASLAM----Petitioner

Versus

MUHAMMAD FEROZE and others----Respondents

Criminal P.L.A. No.609-L of 2002, decided on 15th June, 2005.

Penal Code (XLV of 1860)---

---Ss. 302/148/149---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---Leave to appeal was granted to the complainant by the Supreme Court for reappraisal of entire evidence for safe administration of justice in view of the specific ascription of solitary fire-arm injury to the accused.

Abdul Rashid Qureshi, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing : 15th June, 2005.

SCMR 2008 SUPREME COURT 807 #

2008 S C M R 807

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Hamid Ali Mirza and Falak Sher, JJ

Haji MUHAMMAD NAZIR and others---Petitioners

Versus

THE STATE---Respondent

Criminal Petition No. 388-L of 2004, decided on 15th July, 2004.

(On appeal from the judgment/order dated 11-6-2004 passed by Lahore High Court, Lahore in Criminal Miscellaneous No.3215-B of 2004).

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

----S. 497---Penal Code (XLV of 1860), Ss.147, 148, 337-A (i), 337-A(ii), 337-L(b), 337-F(i), 354, 440/149 & 34---Constitution of Pakistan (1973), Art.185(3)---Bail, grant of---Offence not falling within the prohibitory clause of S.497 Cr.P.C.---Accused with the help and connivance of law enforcing agencies violated and negated to the rule of law by forcibly taking over the possession of property from complainant---During the course of occurrence, the accused demolished buildings owned by complainant---Accused also humiliated the complainant by causing injuries on some of their party-men by launching attack with other co-accused---To accomplish the object of taking over the possession, the accused persons were armed with deadly weapons thereby making each member of unlawful assembly guilty of the commission of the offence---Plea raised by the accused was that the offences did not fall within the prohibitory clause of S.497 Cr.P.C.---Validity---Offences for which the accused persons had been charged entailed punishment not more than five years, and the same did not fall within the category of non-bailable offences---Accused persons were not entitled as a matter of right for release on bail, notwithstanding the fact that the case of the accused was covered under the non-prohibitory clause of S.497 Cr.P.C.---In view of the exceptional and extraordinary circumstances of the case, the principle of grant of bail in offence punishable with imprisonment for less than ten years being a rule and refusal being exception, would not be of any help to the accused---High Court had rightly refused bail to the accused-Petition was dismissed.

Tariq Bashir v. The State PLD 1995 SC 34; Muhammad Aslam v. The State through Advocate-General 1997 SCMR 251 and Muhammad Siddique v. Imtiaz Begum and 2 others 2002 SCMR 442 rel.

(b) Criminal trial---

----Deciding of criminal cases---Principle---Each criminal case has its own features and is required to be decided on its own merits independently.

Mrs. Manzoor and 4 others v. The State PLD 1972 SC 81 rel.

----S. 497 (1)---Bail, grant of---Cases falling within non-prohibitory clause---Effect---In such cases, accused is not entitled as a matter of right for grant of bail and Courts may not like to extend benefit of grant of bail to such accused persons.

Muhammad Siddique v. Imtiaz Begum and 2 others 2002 SCMR 442 rel.

(d) Bail---

----Bail does not mean acquittal of accused but only change of custody from Government agencies to the sureties, who on furnishing bonds take responsibility to produce the accused whenever and wherever he is required to be produced.

Raja Muhammad Anwar, Senior Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioners.

Fazle-e-Miran Chohan, Addl. A.G., Ehtesham Qadir Shah, Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-Record and Ijaz Hussain, SI, P.S. Atta Shaheed for Respondent.

Date of hearing: 15th July, 2004.

SCMR 2008 SUPREME COURT 815 #

2008 S C M R 815

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Muhammad Akhtar Shabbir and Syed Sakhi Hussain Bokhari, JJ

JALAL KHAN----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.463 of 2006, decided on 14th December, 2007.

(Against the judgment of the High Court of Balochistan Quetta dated 22-5-2006 passed in Criminal Appeal in No.276 of 2006).

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

----S. 9(c)---Constitution of Pakistan (1973), Art.185(3)---Proviso to S.9 of the Control of Narcotic Substances Act, 1997, was not attracted in the case which provided for the sentence of imprisonment for life as the minimum one, where the quantity of narcotics exceeded ten kilograms---Clause (c) of S.9 of the said Act clearly postulated that in an appropriate case the sentence of death or imprisonment for life or imprisonment for a term extended to fourteen years could be legally awarded, where quantity of narcotics exceeded one kilogram---Trial Court in the present case had exercised- its discretion properly in awarding the sentence of imprisonment for life in view of recovery of nine kilograms heroin---Supreme Court ordinarily did not interfere with the legal sentence awarded by the Court of competent jurisdiction---Impugned judgment did not suffer from any error of law or fact---Leave to appeal was refused to accused in circumstances.

Brig. (R) F.B. Ali v. State PLD 1975 SC 506 rel.

M. Zaman Bhatti, Advocate Supreme Court for Petitioner (on State expense).

Mehmood Raza, Additional Advocate-General Balochistan for the State.

SCMR 2008 SUPREME COURT 817 #

2008 S C M R 817

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and M. Javed Buttar, JJ

Haji TAHIR HUSSAIN----Appellant

Versus

SQLAIN and others----Respondents

Criminal Appeal No.146 of 2003, decided on 1st February, 2005.

(On appeal against the judgment, dated 9-7-2002 passed by the Lahore High Court, Lahore in Criminal Appeal No.736 of 1997 with Murder Reference No.203 of 1997).

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

----S. 302(b)---Enhancement of sentence, refusal of---Accused had already served the legal sentence of imprisonment for life awarded to him under S.302(b), P.P.C. by the High Court vide impugned judgment---On serving out of sentence during pendency of appeal for enhancement of the same, accused could not be sentenced for another sentence like death etc.---Appeal had become infructuous and was dismissed as such.

Sajjadullah alias Sajjad Asad v. The State Jail Petition No.191 of 2004; Ghulam Ali v. Muhammad Yousuf and others in Criminal Petition No.307-L of 2002; Mst. Razia Begum v. Jehangir and others PLD 1982 SC 302; Mst. Promilla and others v. Safeer Alam and others 2000 SCMR 1166; Amir Khan and others v. The State and others 2000 SCMR 403 and Abdul Haq v. Muhammad Amin alias Manna and others 2004 SCMR 810 ref.

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

----S. 302(b)---Sentence, enhancement of---During pendency of appeal for enhancement of sentence if the accused serves out his sentence, he cannot be sentenced to another sentence like death etc.

Munir Ahmed Bhatti, Advocate Supreme Court for Appellant.

M. Ilyas Siddiqui, Advocate Supreme Court and Sardar M. Siddique Khan, Advocate Supreme Court, Advocate-General, Punjab for Respondents.

Date of hearing: 1st February, 2005.

SCMR 2008 SUPREME COURT 819 #

2008 S C M R 819

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

MUHAMMAD IJAZ and another---Petitioners

Versus

MUHAMMAD AMIR and another---Respondents

Criminal Petition for Leave to Appeal No.10-L/2002 and J.P. No.15 of 2002, decided on 15th June, 2004.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 29-11-2001 passed in. Criminal Appeal No. 1103 of 1996, Criminal Revision No.10 of 1997 and Murder Reference No.21 of 1997).

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

----S. 302---Constitution of Pakistan (1973), Art.185 (3)---Jail petition---Death sentence--Delay, condonation of---Administration of justice---Petition for leave to appeal was barred by 15 days and had been filed from Jail---Although no application for condonation of delay had been filed, yet in view of the death sentence of the convict, Supreme Court condoned the delay.

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

----S. 302(a)---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Interested witness---Dying declaration---Recovery of crime empties---Accused was sentenced to death under S.302(a) P.P.C. by Trial Court and the sentence was maintained by High Court---Plea raised by the accused was that the prosecution witnesses were related to the deceased thus their testimony was not reliable---Further plea raised by the accused was that the weapon of offence could not be relied upon as the crime empties were sent to Forensic Science Laboratory after the recovery of weapon of offence---Validity---Mere relationship of prosecution witnesses with deceased would not make them interested and incredible witnesses---Deceased while injured made a statement which was attested by doctor and according to the doctor, the deceased could give the statement---Such statement of the deceased could be treated as dying declaration wherein he had specifically charged the accused for effectively firing at him as a result of which the deceased died---Empties recovered from the spot were sent to Forensic Science Laboratory earlier than the recovery of gun which after recovery was also, sent---Report of Examiner of Fire-arms showed that the empties matched with the gun which corroborated the prosecution evidence---Defence version was rightly not believed as it did not find any support from the record---High Court on proper appraisal and appreciation of evidence on record upheld the conviction and sentence of the accused---Supreme Court did not find any flaw in the judgment and no exception was taken to the same---Leave to appeal was refused.

Mirza Masood-ur-Rehman, Advocate Supreme Court and M.A. Qureshi, Advocate on-Record for Petitioner (in Cr.P. No.10-L of 2002).

Muhammad Anwar Khan, Advocate Supreme Court for Petitioner (in J.P. No.15 of 2002) and Respondent No.1 (in Cr.P. No.10-L of 2002).

Date of hearing: 15th June, 2004.

SCMR 2008 SUPREME COURT 822 #

2008 S C M R 822

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Sakhi Hussain Bokhari, JJ

MUHAMMAD ARSHAD BUTT----Petitioner

Versus

EXECUTIVE DISTRICT OFFICER (EDUCATION), DISTRICT GUJRANWALA and another----Respondents

Civil Review Petition No.130-L of 2006 in Civil Petition No.744-L of 2005, decided on 29th January, 2008.

(On review from the judgment, dated 6-2-2006 passed by this Court in Civil Petition No.744-L of 2005).

Constitution of Pakistan (1973)---

----Art. 188---Limitation Act (IX of 1908), S.5---Review of Supreme Court judgment-Delay in filing petition---Sufficient cause---Application for condonation of delay---Validity and scope---Petitioner had sought review of judgment of the Supreme Court whereby the Supreme Court had converted petition into appeal and passed impugned orders---Petition was barred by 4 days and petitioner filed application for condonation of delay on the ground that he was jobless and was not in a position to contact his counsel for preparation and filing of the review petition---Ground canvassed by the petitioner for condonation of delay, did not constitute "sufficient cause" within the parameters of S.5 of Limitation Act, 1908 warranting condonation of delay---Delay could not be condoned, in circumstances---Even if delay was condoned, petitioner had no case on merits either as contentions raised by his counsel were already dealt with and decided by the Supreme Court---Petitioner, who had already got desired relief, could not be allowed to re-open the entire case under the garb of review petition as scope of review jurisdiction was very limited.

Pervaiz Inayat Malik, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

SCMR 2008 SUPREME COURT 824 #

2008 S C M R 824

[Supreme Court of Pakistan]

Present: Falak Sher and M. Javed Buttar, JJ

ABDUL HAQ and others----Petitioners

Versus

Messrs OLYMPIA TEXTILE MILLS (PVT.) LTD. and others----Respondents

Civil Petitions Nos.2122-L of 2002 and 395-L of 2003, decided on 25th January, 2005.

Constitution of Pakistan (1973)---

----Arts. 185(3) & 199---Petition for leave to appeal---Petitioners in former petition, despite being a potentially affected party, were neither arrayed nor heard by High Court in constitutional petition, out of which impugned orders had emerged---Petitions were converted into appeals with the consent of parties and were allowed---Impugned judgments were set aside and cases were remitted to High Court where constitutional petition would be deemed to be pending for adjudication afresh after hearing all concerned parties.

Ch. Arshad Mahmood, Advocate Supreme Court for Petitioners (in C.P. No.2122/L of 2002).

Malik Muhammad Qayyum, Senior Advocate Supreme Court for Petitioners (in C.P. No.395-L of 2003).

Khawaja Ahmed Tariq Raheem, Advocate Supreme Court with M.A. Qureshi, Advocate-on-Record for Respondent No.1 (in both cases).

Ch. Inayatullah Khan, Advocate Supreme Court for Respondents Nos.12 to 14 (in both cases).

Malik Noor Muhammad Awan, Advocate Supreme Court for Respondents Nos.4 and 5 (in both cases).

Nemo for other Respondents (in both cases).

Date of hearing: 25th January, 2005.

SCMR 2008 SUPREME COURT 825 #

2008 S C M R 825

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Hamid Ali Mirza and Falak Sher, JJ

SURRAYA BIBI---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No. 560-L of 2003, decided on 16th July, 2004.

(On appeal from the judgment/order, dated 14-7-2003 passed by Lahore High Court, Lahore in Criminal Appeal No.312 of 2003).

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

----Ss. 6/9(c)---Criminal Procedure Code (V of 1898), S.103---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Recovery of 6 Kgs. Charas---Police officials as prosecution witnesses---Humanitarian grounds---Accused was convicted and sentenced to 10 years imprisonment by Trial Court but High Court keeping in view that the accused was a woman, reduced her sentence to 5 years imprisonment---Plea raised by the accused was that the prosecution did not produce any independent witness and only police officials were produced---Further plea raised by the accused was that she was a lady having five children and was on the family way---Validity---Police witnesses were as good as civilian witnesses unless it was established on record that police witness, who appeared against the accused, had personal motive/mala fides to involve him/her in the commission of offence---Accused failed to point out enmity with police, therefore, no case was made out---Supreme Court observed that in cases pertaining to offences of narcotics, the drug peddlers, to achieve their nefarious objects, had adopted obnoxious device by engaging womenfolk and children and through them crimes were being committed and ultimately mercy was sought against such accused on humanitarian grounds---Supreme Court directed that to curb such menace, Courts were required to award adequate punishment instead of showing sympathy on the ground of accused being woman or child, otherwise the actual accused involved in such heinous crime, which was against the society would be encouraged and carriers would also be freely available to promote the crime with the hope that after spending small period in the prison, they would be set at liberty despite of committing heinous crime of drug trafficking---Supreme Court declined to interfere with the sentence of 5 years imprisonment awarded by High Court---Leave to appeal was refused.

Muhammad Naeem v. The State 1992 SCMR 1617 rel.

Sh. Kizar Hayat, Advocate Supreme Court for Petitioner.

Raja Abdur Rehman, A.A.-G. (Punjab) for the State.

Date of hearing: 16th July, 2004.

SCMR 2008 SUPREME COURT 829 #

2008 SCMR 829

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad, Mian Hamid Farooq and Sheikh Hakim Ali, JJ

MUHAMMAD ARIF----Petitioner

Versus

THE STATE---Respondent

Jail Petition No.420 of 2005, decided on 26th February, 2008.

(On appeal from the judgment, dated 30-3-2005 passed by High Court of Balochistan, Quetta in Murder Reference No.ATA(s)7 of 2002).

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

----S. 302(b)/34---Anti-Terrorism Act (XXVII of 1997), Ss.6(2)(a) & 10(11-A)---Constitution of Pakistan (1973), Arts.9, 10(1) & 185(3)---Trial of accused was conducted in absentia and without providing him opportunity of hearing---Said trial of accused was violative of Arts.9 & 10(1) of the Constitution and S.10(11-A) of the Anti-Terrorism Act, 1997-Judgments, convictions and sentences rendered by both the Courts below in the absence of the accused, thus, were not sustainable under the law and necessitated retrial of the case---Petition for leave to appeal was consequently converted into appeal which was accepted and conviction and sentence awarded to accused by the Trial Court and maintained by High Court, were set aside and the case was remanded to the Trial Court for fresh trial of accused in accordance with law.

Mir Ikhlaq Ahmad v. State Criminal Appeal No.682 of 2006 rel.

Zia Ullah Khan and others v. Government of Punjab and others PLD 1989 Lah. 554; Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others 1992 SCMR 602 and Qari Abdul Hayee and another v. The State 2005 YLR 1865 ref.

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

----Arts. 9 & 10(1)---Anti-Terrorism Act (XXVII of 1997), S.10(11-A)---Trial in absentia-Trial of accused in absentia is violative of Arts.9 and 10(1) of the Constitution and S.10(11-A) of the Anti-Terrorism Act, 1997, which is not sustainable under the law and necessitates retrial of the accused.

Mir Ikhlaq Ahmad v. State Criminal Appeal No.682 of 2006 rel.

M. Zaman Bhatti, Advocate Supreme Court for Petitioner.

Amanullah Kanarani, Additional Advocate-General, Balochistan for the State.

Date of hearing: 26th February, 2008.

SCMR 2008 SUPREME COURT 833 #

2008 SCMR 833

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Rana Bhagwandas, JJ

JAVAID----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.297 of 2002, decided on 10th May, 2005.

(On appeal against the judgment, dated 23-4-2002 passed by the Lahore High Court in Criminal Appeal No.1210 of 2001 and Murder Reference No.47 of 2001).

Penal Code (XLV of 1860)---

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal, grant of---Contention was that the accused had fired at the deceased in his self-defence after snatching the pistol from him and said plea had been introduced by the accused during cross-examination of the prosecution witnesses as well as in his own statement recorded under S.342, Cr.P.C.---Leave to appeal was granted to accused in the circumstances only to the extent of quantum of sentence.

Sardar Muhammad Siddique Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 10th May, 2005.

SCMR 2008 SUPREME COURT 839 #

2008 S C M R 839

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

SEEMA FAREED and others----Petitioners

Versus

THE STATE and another----Respondents

Crl. P.L.A. No.67-K of 2005, decided on 5th October, 2005.

(On appeal from order of High Court of Sindh, Karachi, dated 26-9-2005 passed in Criminal Miscellaneous A. No.99 of 2005).

Penal Code (XLV of 1860)---

----Ss. 406, 420, 489-F, 109, 114 & 34---Constitution of Pakistan (1973), Art.185(3)---High Court in quashment of proceedings, on minute examination of record, had arrived at the conclusion that since the ingredients of offences alleged against petitioners, were prima facie, made out, it would neither be just nor fair and proper to stifle the criminal proceedings at the initial stage---High Court had also exhaustively and comprehensively dealt with the question of insertion of provision of S.489-F in P.P.C---Approach of the High Court in the matter of quashing of proceedings was neither illegal nor suffered from any inherent legal infirmity or material irregularity---Interpretation placed by High Court on the provisions of the contract as well as the repealing statute, did not suffer from any misconception of law---Criminal case must be allowed to proceed on its own merits and merely because civil proceedings relating to same transaction had been instituted, it had never been considered to be a legal bar to the maintainability of criminal proceedings which could proceed concurrently because conviction for a criminal offence was altogether a different matter from the civil liability---No question of law of public importance having been raised in the facts and circumstances of the petition, which was without any merits did not warrant any interference in the exercise of its jurisdiction conferred by Art.185(3) of the Constitution---Leave was refused.

Khawaja Shamsul Islam, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 5th October, 2006.

SCMR 2008 SUPREME COURT 841 #

2008 S C M R 841

[Supreme Court of Pakistan]

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

Mst. IRSHAD BIBI---Petitioner

Versus

IFTIKHAR and others---Respondents

Criminal Petition No. 928-L of 2002, decided on 21st July, 2004.

(On appeal against the judgment, dated 22-10-2002 passed by the Lahore High Court, Lahore in Criminal Appeal No.401-J of 2001).

Penal Code (XLV of 1860)---

----Ss. 302/364/34---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Extra-judicial confession---Trial Court convicted -and sentenced the accused for life imprisonment on the charges of abduction and murder but High Court acquitted them from the charge of murder---Plea raised by the complainant was that the prosecution had produced inculpatory extra-judicial confession and other evidence, therefore, acquittal of the accused from the charge of murder was not justified---Validity---Conviction order based on extra-judicial confession is well if prosecution succeeded in establishing that such statement had been made truly and voluntarily and same was corroborated by circumstantial evidence---Accused had categorically denied the allegation and extra-judicial confession before the prosecution witnesses, in absence of corroboration, was not acceptable---High Court after having taken into consideration material available on record in accordance with law had rightly concluded that the prosecution case was full of doubt and accused were rightly acquitted from the charge of murder---Leave to appeal was refused.

Bahadur Khan v. The State PLD 1995 SC 336 and Muhammad Akram and others v. The State 1995 SCMR 1359 rel.

Ch. Muhammad Nasrullah Warraich, Advocate Supreme Court and C.M. Lateef, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 21st July, 2004.

SCMR 2008 SUPREME COURT 845 #

2008 SCMR 845

[Supreme Court of Pakistan]

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

AMIR BAKHSH----Petitioner

Versus

ABDUR RAHIM and others----Respondents

Civil Petition No.2533-L of 2004, decided on 21st April, 2005.

(On appeal from the judgment, dated 20th July, 2004 passed in by Lahore High Court, Multan Bench Multan in R.S.A. No.24 of 1994).

Specific Relief Act (I of 1877)---

----S. 8---Suit for possession---Sale in favour of plaintiff while suit shop was in possession of tenant---Tenant claimed to have purchased shop and had been given its possession by vendors---Vendors supported sale of shop through their general attorney in favour of plaintiff---Patwari and tenant supported construction of suit shop on disputed land---Excise and Taxation Officer as per record deposed that suit shop was owned by plaintiff and was in possession of tenant---Plaintiff produced in evidence rent deed executed by tenant in favour of vendors---Plaintiff was, held, to be entitled to possession of suit shop.

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

Malik Amjad Pervaz, Advocate Supreme Court and A.H. Masood, Advocate-on-Record for respondents.

Date of hearing: 21st April, 2005.

SCMR 2008 SUPREME COURT 849 #

2008 S C M R 849

[Supreme Court of Pakistan]

Present: M. Javed Buttar, Zia Perwez and Syed Zawwar Hussain Jaffery, JJ

SAEED KHAN and 5 others----Appellants

Versus

THE STATE and another----Respondents

Criminal Appeal No.386 of 2006, decided on 6th February, 2008.

(On appeal from the judgment, dated 17-2-2005 of the Peshawar High Court, Peshawar in Criminal Appeal No.644 of 2003).

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

----Ss. 302 & 148---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to reappraise the entire evidence for safe administration of criminal justice.

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

----Ss. 302 & 148---Constitution of Pakistan (1973), Art.185---Appraisal of evidence---F.I.R. having been promptly lodged, chance of deliberation and consultation with others to wrongly involve the accused was excluded---Details of the occurrence had been elaborately explained in the F.I.R.---Charge had been proved by ocular evidence duly supported by medical evidence---Involvement of accused was duly spelt out in the statements of prosecution witnesses along with the recoveries of pallets---Prosecution had the prerogative to produce evidence as might be necessary to prove the charge and to give up the witnesses after sufficient evidence was brought on record---No inference could be drawn about the testimony of the remaining witnesses in the absence of any positive evidence---Incident had occurred in daylight and the witnesses were natural witnesses of the occurrence---Courts below had not done any misreading, non-reading or misappraisal of evidence---Impugned judgment did not suffer from any illegality or irregularity---Appeal was dismissed in circumstances.

Mazhar Ali v. The State 2005 SCMR 523 and Allah Dad and another v. The State 1995 SCMR 142 ref.

---Ss. 302 & 148---Prerogative of prosecution to produce evidence as may be necessary to prove the charge and to give up the witnesses after sufficient evidence is brought on record---No adverse inference or presumption can be drawn about the testimony of the remaining witnesses in the absence of any positive evidence---In case the defence relies on the fact that the remaining witnesses would not have supported the prosecution case, they can always be examined in defence.

Mazhar Ali v. The State 2005 SCMR 523 ref.

Asadullah Khan Chamkani, Advocate Supreme Court and Tasleem Hussain, Advocate-on-Record for Appellants.

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

Abdul Samad Khan, Advocate Supreme Court/Advocate-on-Record for Respondent No.2.

Date of hearing: 6th February, 2008.

SCMR 2008 SUPREME COURT 853 #

2008 SCMR 853

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C. J. M. Javed Buttar and Saiyed Saeed Ashhad, JJ

MUNAWAR ALI----Petitioner

Versus

ALI DOST and others----Respondents

Criminal Petition No.47-K of 2004, decided on 15th July, 2005.

(On appeal from the judgment, dated 17-5-2004 of, the High Court of Sindh at Karachi, Hyderabad Circuit passed in Criminal Revision Application No.11 of 2004).

Penal Code (XLV of 1860)---

----Ss. 324/147/149/109---Criminal Procedure Code (V of 1898), S.200---Constitution of Pakistan (1973), Art.185(3)---Petition for leave to appeal---Complaint filed by the complainant should not have been dismissed outrightly for want of incriminating evidence, particularly in view of the statement of the complainant under S.200, Cr. P. C. and the medical evidence available on record---Trial Court should have been given the opportunity to proceed with the matter and then to decide the fate of the case---Petition for leave to appeal was converted into appeal and allowed in circumstances---Impugned order of High Court was set aside and the case was remanded to Trial Court with the direction to dispose of the same keeping in view the said observations.

Abdur Rahim Kazi, Advocate Supreme Court with Suleman Habibullah, Advocate-on-Record for Petitioner.

Muhammad Sarwar Khan, Additional Advocate-General with A.A. Siddiqui, Advocate-on-Record for Respondents.

Date of hearing: 15th July, 2005.

SCMR 2008 SUPREME COURT 855 #

2008 S C M R 855

[Supreme Court of Pakistan]

Present: Javed Iqbal, Sardar Muhammad Raza Khan and Karamat Nazir Bhandari, JJ

MUHAMMAD IQBAL and another---Appellants

Versus

MUKHTAR AHMAD through L.Rs.---Respondents

Civil Appeal No. 2239 of 1998, decided on 1st October, 2003.

(On appeal from the judgment, dated 19-6-1997 passed by the Lahore High Court, Lahore in R.S.A. No.413 of 1997).

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

----S. 45---Mutation---Onus to prove---Mutation proceedings are not judicial proceedings and do not at all happen to confer title---Whenever genuineness of any mutation is challenged, the burden squarely lies on the parties relying upon the mutation, to prove the actual transaction.

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

----Ss. 42 & 45--- Specific Relief Act (I of 1877), S.42--- Declaration of title---Mutation of sale--- Onus to prove---Concurrent findings of fact by two Courts below---Plaintiffs assailed the mutation of sale allegedly made by their father in favour of defendant---Only witness produced by the defendant was Lumberdar who belonged to a city where the property in dispute was not situated---Trial Court decreed the suit in favour of plaintiffs and the judgment and decree passed by Trial Court was maintained by Appellate Court---High Court allowed the second appeal and set aside the concurrent judgments and decrees passed by two Courts below---Validity---Residence of Lumberdar was sufficient for the Courts to hold that the attestation of mutation was violative of S.42 of West Pakistan Land Revenue Act, 1967---Lumberdar in such cases must belong to the same village in which the property was located---Even the association of Lumberdar belonging to the same Patwar Circle was not accepted to be genuine---Lumberdar not only did not belong to the village where the land was situated but he was ignorant of even the place of attestation of the mutation---Both the Courts below came to the right conclusion---High Court should have avoided interference in the concurrent and correct finding of fact resorted to by the lower Courts---Judgment and decree passed by High Court was set aside while that of Trial Court and Appellate Court were restored---Appeal was allowed.

Hakim Khan v. Nazeer Ahmad Lughmani 1992 SCMR 1832 and Muhammad Akram v. Altaf Ahmad PLD 2003 SC 688 ref.

----S. 100---Second appeal---Concurrent findings of fact by the Courts below---Scope---Perfectly sound conclusion should not be interfered with by High Court in exercise of its second appellate jurisdiction.

Keramat Ali v. Muhammad Yunus Haji PLD 1963 SC 191 ref.

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

----S. 42---Mutation, challenging of---Effect---Where a mutation is challenged, the beneficiary has to fall back upon and prove the original transaction.

A.K. Dogar, Advocate Supreme Court for Appellants.

Ghulam Sabir, Advocate Supreme Court for Respondent.

Date of hearing: 24th September, 2003.

SCMR 2008 SUPREME COURT 859 #

2008 S C M R 859

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi, Muhammad Qaim Jan Khan and Mian Hamid Farooq, JJ

AHMAD NAWAZ----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.108 of 2003 out of Jail Petition No.24 of 2002, decided on 23rd January, 2008.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 5-11-2001 passed in Criminal Appeal No.1029 of 1999 and Murder Reference No.334-T of 1999).

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

----Ss. 302(b) & 392---Anti-Terrorism Act (XXVII of 1997), S.7---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to accused to reappraise the evidence to ensure whether the principles of safe administration of criminal justice had been followed or not.

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

----Ss. 302(b) & 392---Anti-Terrorism Act (XXVII of 1997), S.7---Appraisal of evidence---Sentence, reduction in---Statement of eye-witness had not been shattered by the defence despite lengthy searching cross-examination ---Presence of eye-witness at the spot at the relevant time was proved---Parties were known to each other---Occurrence had taken place in daylight---F.I.R. was promptly lodged---Statement of eye-witness was corroborated by medical report, recovery of crime-empties and blood-stained earth from the spot and by the statement of the complainant, who had reached the scene of occurrence just after the incident---Minor discrepancies could not adversely affect the prosecution case which was proved beyond any shadow of doubt---Convictions of accused were consequently maintained---Accused at first had stopped the deceased and her sister in order to rob them, but he fired a shot when the deceased offered resistance---Sentence of death of accused was converted into imprisonment for life in circumstances.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

Mian Asif Mumtaz, D.P.G. for the State.

Date of hearing: 23rd January, 2008.

SCMR 2008 SUPREME COURT 863 #

2008 S C M R 863

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

MAZHAR IQBAL----Petitioner

Versus

D.C.O. TOBA TEK SINGH and others--Respondents

Civil Petition No.1676-L of 2003, decided on 4th August, 2004.

(On appeal from the order, dated 25-4-2003 of the Lahore High Court, Lahore, passed in Writ Petition No.14107 of 2002).

Muslim Family Laws Ordinance (VIII of 1961)---

----S. 9---Constitution of Pakistan (1973), Art.185(3)---Maintenance of children---Dispute between parties was regarding amount of maintenance of children of petitioner which was awarded by Arbitration Council---Petitioner, despite having knowledge of proceedings before the Arbitration Council, failed to appear before the Council on date fixed and also on many other dates---High Court upheld findings of authorities below---High Court recorded finding of fact that Rs.1,000 per month as past maintenance and Rs.1,500 per month as future maintenance was reasonable in circumstances of the case---Petitioner was bound under Islamic Law to provide maintenance to children---District Coordination Officer, in facts and circumstances of case, had acted within his jurisdiction to dismiss revision petition filed by petitioner as being barred by time---Supreme Court would not interfere with quantum of maintenance granted by competent forum, in absence of any exceptional circumstances---Petitioner could not demonstrate as to how Arbitration Council was not properly constituted---Impugned order did not suffer from any legal infirmity---Petition not involving any question of law of public importance so as to warrant interference of Supreme Court, was dismissed.

Ch. Farooq Mahmood Kahloon, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioner.

Sh. Naveed Shabryar, Advocate Supreme Court for the Respondents.

Date of hearing: 4th August, 2004.

SCMR 2008 SUPREME COURT 865 #

2008 S C M R 865

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Tassadduq Hussain Jillani, JJ

GUL RAEEF KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No. 733-L of 2003, decided on 23rd August, 2004.

(On appeal against the judgment, dated 10-9-2003 passed by the Lahore High Court, Lahore in Criminal Appeal No.1631 of 2000).

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

----S. 9(c)---Constitution of Pakistan (1973), Art.185 (3)---Reappraisal of evidence---Quantum of sentence, reduction of---First offender---Accused was convicted and sentenced to 14 years imprisonment---Accused sought reduction in sentence on the ground that he was first' offender and only bread earning person of his family and was also a young man---Counsel for the State had no objection if the quantum of sentence would be reduced---Effect---Prosecution had successfully established charge against the accused by producing overwhelming incriminating evidence---Supreme Court keeping in view the request made by the accused and also considering the concession made by the State counsel, maintained the conviction but reduced the sentence to 7 years imprisonment---Petition was disposed of accordingly.

Malik Sher Bahadar, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioner.

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

Date of hearing: 23rd August, 2004.

SCMR 2008 SUPREME COURT 866 #

2008 S C M R 866

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi, Muhammad Qaim Jan Khan and Muhammad Moosa K. Leghari, JJ

Criminal Appeal No.243 of 2003

GHULAM HUSSAIN and others----Appellants

Versus

THE STATE----Respondents

(On appeal against the judgment, dated 11-10-2001 passed by Lahore High Court, Lahore, in Criminal Appeals Nos.4, 5 and 6 of 1999).

Criminal Appeal No.244 of 2003

KHALID RASHID----Appellant

Versus

THE STATE----Respondent

(On appeal against the judgment, dated 11-10-2001 passed by Lahore High Court, Lahore, in Criminal Appeal No.4 of 1999).

Criminal Appeals Nos.243 and 244 of 2003, decided on 31st January, 2008.

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

----Ss. 302(b)/34 & 324/34---Constitution of Pakistan (1973), Art.185(3)---Contentions were that ocular evidence was contradictory, that the occurrence having taken place during the dead hours of the night identification of accused in absence of electricity by the witnesses was not possible and that Courts below had unjustifiably brushed aside the plea of alibi raised on behalf of the accused---Leave to appeal was granted by the Supreme Court to consider only the quantum of sentence awarded to the accused.

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

----Ss. 302(b)/34 & 324/34---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal had already been granted in the connected petition---Leave to appeal was granted in the present jail petition as well to determine as to whether injury attributed to accused could have been caused by the weapon used by him during the occurrence.

----Ss. 302(b)/34 & 324/34 --Appraisal of evidence---Injuries caused by the accused to the deceased had been declared to be fatal---Complainant and the other two injured eye-witnesses had consistently and unambiguously supported the prosecution version---Ocular testimony was corroborated by unrebutted medical evidence---Plea of alibi raised on behalf of accused had been rightly disbelieved by the Courts below after giving due and proper consideration---Normal penalty for committing murder was death---No mitigating circumstance for awarding lesser penalty could be pointed out by defence---Accused had committed the murder of three persons in a gruesome manner having left no room for extenuation---Convictions and sentences of accused were upheld in circumstances.

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

---Ss. 302(b)/34 & 324/34---Appraisal of evidence---Benefit of doubt---Accused had been attributed one fire-arm injury on the right wrist of the deceased---Fatal injury on the chest of the deceased was caused by co-accused---Accused had been implicated in the case along with his father and brother, who had been acquitted---Accused was aged 17 years at the time of incident---Possibility of false implication of accused could not be ruled out---Without taking into consideration complicity of the accused in the commission of the crime and without assigning any reason, he had been awarded life imprisonment, rendering the said sentence unsubstantiated and uncalled for---Accused was entitled to benefit of doubt for safe administration of justice and he was acquitted accordingly.

Syed Zafar Abbas Naqvi, Advocate Supreme Court for Appellants (in Criminal Appeal No.243 of 2003).

Mian Mumtaz Asif, D.P.G. for the State (in Criminal Appeal No.243 of 2003).

Muhammad Zaman Bhatti, Advocate Supreme Court for the Complainant (in Criminal Appeal No.243 of 2003).

Sahibzada Ahmed Raza Kasur, Senior Advocate Supreme Court for Appellant (in Criminal Appeal No.244 of 2003).

Mian Mumtaz Asif, D.P.-G. for the State (in Criminal Appeal No.244 of 2003).

Date of hearing: 31st January, 2008.

SCMR 2008 SUPREME COURT 871 #

2008 S C M R 871

[Supreme Court of Pakistan]

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

ABDUL SALIM---Petitioner

Versus

GOVERNMENT OF N.-W.F.P. through Secretary, Department of Education Secondary, N.-W.F.P., Peshawar and others---Respondents

Civil Petition No.408-P of 2001, decided on 26th December, 2003.

(On appeal front the judgment, dated 27-8-2001 passed by N.-W.F.P. Service Tribunal, Peshawar in Service Appeal No.1440 of 1997).

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

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Termination from service---Grounds of termination, non-mentioning of---Change of Government---Irregularities committed at the time of appointment---Effect---Civil servant was appointed as school teacher in the year, 1995 and had been receiving salary for two years regularly---In year 1997, the authorities terminated the services of the civil servant and his departmental appeal was also dismissed---Service Tribunal maintained the decision of the authorities---Validity---In the order of removal from service it was only mentioned that the appointment of the civil servant was found illegal, ab initio void and against the prescribed rules but no details in that regard were mentioned therein---Absence of such reasons by itself was sufficient to dub the removal as mala fide---If there had been any specific reason and same had been intimated to the civil servant through show-cause notice, the civil servant might have been able to defend himself---For the irregularities committed by department itself regarding appointment of candidate, the appointees could not he condemned subsequently with the change of heads in department or on the upper level---Government being institution in perpetuity, its orders could not be reversed simply because the heads had changed---Such act of departmental authorities was unjustified when the candidate was otherwise fully qualified to hold the job---Supreme Court converted the petition for leave to appeal into appeal, set aside the order of termination and reinstated the civil servant in service---Appeal was allowed.

Petitioner in person.

Assistant Director (Education) for Respondents.

Date of hearing: 26th December, 2003.

SCMR 2008 SUPREME COURT 874 #

2008 S C M R 874

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi, Mian Hamid Farooq and Muhammad Farrukh Mahmud, JJ

LIAQAT ALI----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.186 of 2007, decided on 26th March, 2008.

(On appeal from the judgment, dated 21-12-2006 of the Lahore High Court, Lahore, passed in Criminal Appeal No.121 of 2002).

Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan (1973), Art.185(3)---Single injury sustained by the deceased at right side of his head was attributed to two nominated accused and the Trial Court as well as the High Court, without properly attending to the question of liability vis-a-vis the injury, held the petitioner guilty---Leave to appeal to Supreme Court, in circumstances, was granted to reappraise the evidence to ascertain the question of guilt or otherwise of the petitioner.

M. Zaman Bhatti, Advocate Supreme Court for Petitioner.

Mian Asif Mumtaz, D.P.-G. for the State.

2008 S C M R 880

[Supreme Court of Pakistan]

Present: Sardar Muhammad Raza Khan, Falak Sher and Ch. Ijaz Ahmed, JJ

KHAN alias KHANI and others----Petitioners

Versus

THE STATE----Respondent

Criminal Revision Petition No.50 of 2006 in Criminal Appeal No.93 of 2002, decided on 10th September, 2007.

(On review from the judgment, dated 26-6-2006 passed by this Honourable Court in Criminal Appeal No.93 of 2002).

Supreme Court Rules, 1980---

----O. XXVI, R. 1---Review of Supreme Court judgment---Scope---Remedy of review could not be sought as a matter of right, as it was a discretionary relief---Order XXVI, R.1 of Supreme Court Rules, 1980 provided that power of review was to be exercised in a criminal proceedings on the ground of an error apparent on the face of the record---Review proceedings were neither in the nature of re-hearing of the whole case nor were same an appeal against the judgment under review---Supreme Court, in criminal matters, would not interfere in review with the quantum of sentence, if same was legal and had been imposed or upheld after due consideration of all the relevant circumstances---In absence of any illegality or infirmity in the impugned order, review petition was dismissed.

Faqir Muhammad Khan's case PLD 1973 SC 110 and Muhammad Zafarullah Khan's case PLD 1975 SC 300 ref.

Ch. Muhammad Anwar Bhinder, Advocate Supreme Court and Ch. Muhammad Anwar Khan, Advocate-on-Record (absent) for Petitioners.

Nemo for the State.

Date of hearing: 10th September, 2007.

SCMR 2008 SUPREME COURT 883 #

2008 S C M R 883

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan and Ejaz Yousaf, JJ

GOVERNMENT OF N.-W.F.P. and others----Petitioners

Versus

Qazi MOGHAL BAZ----Respondent

Civil Petition for Leave to Appeal No.278-P of 2007, decided on 24th March, 2008.

(On appeal from the judgment, dated 26-2-2007 passed by Peshawar High Court, Peshawar in Civil Revision No.482 of 2003).

Civil Procedure Code (V of 1908)---

----O. VII, R. 2---Constitution of Pakistan (1973), Art.185(3)---Suit for recovery of amount---Delay in filing revision before High Court, had not been satisfactorily explained and thus, revision was dismissed as time-barred for reasons not open to legitimate exception---Reasons given in the application, hardly provided any sound ground for condonation of delay.

M. Zaman Bhatti, Advocate Supreme Court for Petitioners.

Qazi Abdul Basit, Advocate Supreme Court for Respondent.

Date of hearing: 24th March, 2008.

SCMR 2008 SUPREME COURT 884 #

2008 S C M R 884

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J. and Muhammad Moosa K. Leghari, J

RIAZ ALI----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.7-K of 2008, decided on 29th February, 2008.

(On appeal from the judgment and order of the High Court of Sindh, Circuit Bench Hyderabad, dated 18-1-2008 passed in Criminal Bail Application No.S-543 of 2007).

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.302---Constitution of Pakistan (1973), Art.185(3)---Pre-arrest bail, refusal of---Petitioner's application for grant of pre-arrest bail having been dismissed by the High Court, he had filed petition for leave to appeal against said dismissal order---Name of the petitioner appeared in the promptly lodged F.I.R. with a specific role---Petitioner had been implicated by a prosecution witness who was mother of the deceased---Considerations for grant of pre-arrest bail were quite different from those of bail after arrest---Petitioner had not been able to make out a case for grant of pre-arrest bail---Petition for leave to appeal was dismissed.

Abdul Waheed Siddiqui, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for petitioner.

Nemo for the State.

Date of hearing: 29th February, 2008.

SCMR 2008 SUPREME COURT 886 #

2008 S C M R 886

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

MUHAMMAD ASLAM and 5 others----Appellants

Versus

Haji KHUDA DAD KHAN through L.Rs. and 7 others----Respondents

Civil Appeal No.1476 of 1996, decided on 5th June, 2002.

(On appeal from the judgment of Lahore High Court, Rawalpindi Bench, dated 1-11-1995 passed in Writ Petition No.352. of 1983).

(a) Land Reforms Regulation 1972 (M.L.R.115)---

----Para. 8---West Pakistan Land Revenue Act (XVII of 1967), S.42---Gift mutation---Validity---Gift mutation, if excluded from consideration by functionaries of Land Commission, would remain valid and effective between donor and donee---Principles.

(b) Land Reforms Regulation, 1972 (M.L.R.115)---

----Paras. 11 & 18---Surrender of exchanged land by declarant---Effect---No right of ownership would be created in favour of tenant of exchanged land unless same was finally resumed---Principles.

---Preamble---Object of Land Reforms Act, 1977.

Land Reforms Act, 1977 was promulgated under the scheme of land reforms and idea was to cut the size of individual holding to the prescribed limits on the basis of entries in the Revenue Record on the date of commencement of said Act and the excess area was to be resumed in favour of Land Commission.

(d) Land Reforms Regulation, 1972 (M.L.R.115)---

----Paras. 11 & 18---Land Reforms Act (II of 1977), S.6---Gift of land by declarant---Gifted land not resumed under M.L.R.115, but remaining same in ownership of donee much after date of commencement of Land Reforms Act, 1977---Effect---Validity of such gift inter se parties would not be affected for purpose of Land Reforms Act, 1977 for mere reason that same was given effect under M.L.R.115---Such gifted land for not being property of declarant could not be included in his holding, thus, its earlier allotment in favour of tenant would be annulled---Principles.

(e) Land Reforms Rules, 1977---

----R. 13---Constitution of Pakistan (1973), Art.199---Suo motu revisional power of Chief Land Commissioner---Scope---Constitutional petition before High Court---Maintainability---Suo motu revisional power is in nature of inherent power---Exercise of such power for correcting an illegality or injustice done to a party would not be interfered by High Court in exercise of its constitutional jurisdiction on technical grounds.

Siraj Din v. Sultan and others PLD 1990 SC 95; Mst. Karam Ilahi v. The State PLD 1974 Rev. 17; Mst. Raj Bibi v. Additional Chief Land Commissioner PLD 1975 Lah. 408 and Muhammad Sabir v. Shaheena Shamas-ul-Hasan 2000 MLD 1530 ref.

Bashir Ahmed Ansari, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellants.

Khawaja Muhammad Farooq; Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondents Nos.1 to 3.

Gul Zarin Kiani, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record.

Date of hearing: 5th June, 2002.

SCMR 2008 SUPREME COURT 895 #

2008 S C M R 895

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi, Mian Hamid Farooq and Muhammad Farrukh Mahmud, JJ

SHAMSHAD ALI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.150 of 2007, decided on 27th March, 2008.

Penal Code (XLV of 1860)---

----S. 306---Constitution of Pakistan (1973), Art.185---Appeal to Supreme Court---During the course of arguments, it transpired that deceased was the real daughter of appellant---Counsel for appellant had contended that in the light of principle contained in S.306 P.P.C. extreme penalty of death in the case would not be justified---Supreme Court, in view of peculiar facts of the case, directed District Police Officer concerned to effect service upon the legal heirs of deceased to appear before the court on a date to be fixed to ascertain the possibility of compromise between the parties.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

Mian Asif Mumtaz, D.P.-G. Punjab for the State.

SCMR 2008 SUPREME COURT 896 #

2008 S C M R 896

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, M. Nawaz Abbasi and Saiyed Saeed Ashhad, JJ

ABDUL SHAKOOR and others----Appellants

Versus

HAROON and others----Respondents

Civil Appeal No.281 of 1999, decided on 3rd August, 2007.

Civil Procedure Code (V of 1908)---

----O. XXIII, R. 3---Constitution of Pakistan (1973), Art.185---Appeal to Supreme Court---Compromise of suit---Authority of counsel to compromise---Counsel appearing on behalf of respondents though was authorized to compromise the suit on behalf of respondents, but that authority was neither absolute nor unqualified; it was conditional with a settlement .arrived at by the parties---Counsel, in circumstances, could not be deemed to be authorized to enter into compromise in relation to the suit without any settlement having been arrived at between the parties themselves---Power to compound or settle the matter was vested with the parties and counsel would act according to the instructions given to him by the party and could enter into compromise only where Vakalatnama specifically empowered him to do so and could not do so on his own---High Court had rightly set aside compromise decree on the ground that same had been obtained by fraudulent means and the said order was maintained by Division Bench of High Court by discussing each and every aspect of the matter in detail---Counsel for appellants though argued at length yet could not point out any illegality, misreading or non-reading of evidence warranting interference by Supreme Court---No reason being available to interfere with the concurrent findings of the courts below, appeal was dismissed.

Akhlaq Ahmed Siddiqui, Advocate-on-Record for Appellants.

Khalil-ur-Rehman, Advocate-on-Record for Respondents Nos.1 to 6.

Date of hearing: 2nd September, 2007.

SCMR 2008 SUPREME COURT 899 #

2008 S C M R 899

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad and Syed Zawwar Hussain Jaffery, JJ

NAZIR AHMAD PATHAN and another----Petitioners

Versus

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

Civil Petitions Nos.339 and 340-K of 2007, decided on 3rd March, 2008.

(On appeal from the judgment, dated 16-4-2007 passed by High Court of Sindh Bench at Sukkur in Labour Appeal Nos.3 and 4 of 2005).

(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---Grievance petition---Dismissal from service---Bank employee---Charge of misappropriation/embezzlement of Bank's money---Enquiry Officer found employee to be guilty of charge---Labour Court upheld such findings of Enquiry Officer, but reinstated employee in service by treating such penalty to be harsh---Validity---Working and functioning of Bank depended on mutual trust between Banker and customer and required display of a very high degree of integrity and honesty of its employees, in absence whereof customers would lose their faith and trust in Banks, which would adversely affect their working and business---Punishment of dismissal from service was not unwarranted or harsh or disproportionate to such charge---Impugned order of reinstatement of employee by the Labour Court was set aside in circumstances.

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

----S.O. 12---Industrial Relations Ordinance (XXIII of 1969), Ss.25-A & 38---Bank employee---Charge of misappropriation/embezzlement of Bank's money---Employee found to be guilty of charge by Enquiry Officer---Quantum of punishment awardable to employee---Powers of Labour Court, Appellate Court and employer stated.

Once the charge of misappropriation/embezzlement levelled against the worker is proved, then the question of quantum of punishment rests with the employer and neither the Labour Court nor the Appellate Court has any discretion in the matter, unless the sentence awarded is found to be either one which is not provided or warranted by law or which appears to be excessive or harsh or totally disproportionate to the guilt, which no prudent man would have awarded in the circumstances of that particular case.

--S.O. 12---Industrial Relations Ordinance (XXIII of 1969), Ss.25-A & 38--- Dismissal from service--- Bank employee--- Charge of misappropriation/embezzlement of money of bank and its customers---Setting aside of such penalty by Labour Court on account of inaction on the part of Bank to initiate proceedings against co-accused/employee---Validity---Such inaction would not be a ground for exonerating or absolving employee from such charge---Impugned judgment being arbitrary and fanciful was set aside in circumstances.

Ahmadullah Faruqi, Advocate Supreme Court for Petitioners.

Mehmood A. Ghani, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondents.

Date of hearing: 3rd March, 2008.

SCMR 2008 SUPREME COURT 905 #

2008 SCMR 905

[Supreme Court of Pakistan]

Present: Javed Iqbal and Falak Sher, JJ

MUHAMMAD ANWAR and 2 others----Petitioners

Versus

KHUDA YAR and 25 others----Respondents

Civil Petition No.3278-L of 2001, decided on 28th March, 2003.

(On appeal from the judgment, dated 8-6-20001 passed by Lahore High Court, Bahawalpur Bench, in Civil Revision No.150-D of 1985/BWP).

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

----S. 2-A [as added by West Pakistan Muslim Personal Law (Shariat) Application Act (Amendment) Ordinance (XIII of 1983)]---Succession of last muslim male owner---Scope---Provision of S.2-A of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 had retrospective effect---Such owner would be treated as one, who at the time of his death was governed by Muslim personal law, thus, his legacy would devolve in accordance with Muslim personal law/Sharia.

Hakim Ali v. Barkat Bibi 1988 SCMR 293; Muhammad Qasim Khan v. Mehbooba 1991 SCMR 515; Fazal Nishan v. Ghulam Qadir 1992 SCMR 1773; Rattigan's Digest of Customary Law and Federation of Pakistan v. Muhammad Ishaq PLD 1983 SC 273; Abdul Ghafoor v. Muhammad Shafi PLD 1985 SC 407; Ismail and another v. Ghulam Qadir 1990 SCMR 1667 and Lal and 3 others v. Rehmat Bibi and another PLD 1991 SC 582 rel.

(b) Co-sharer---

----Limitation would not run against co-sharer---Possession of legal heirs would be deemed to be that of their deceased predecessor.

Muhammad Qasim Khan v. Mehbooba 1991 SCMR 515 and Ghulam Ali v. Ghulam Sarwar Naqvi PLD 1990 SC 1 rel.

----S. 42---Civil Procedure Code (V of 1908), S.2(2) & O.XX, R.6(1)---Mutation attested on basis of decree---Person not party to such decree---Effect---Such decree would not be binding on such person---Question of title could not be decided on basis of mutation got recorded on basis of judgment/decree, which was not binding on such person---Such mutation would have no adverse effect on title of such person.

Mehdi Khan Chauhan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.

Nemo for Respondents.

SCMR 2008 SUPREME COURT 909 #

2008 SCMR 909

[Supreme Court. of Pakistan]

Present: Saiyed Saeed Ashhad and Syed Zawwar Hussain Jaffery, JJ

GHULAM MUSTAFA CHANNA----Petitioner

Versus

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

Civil Petitions Nos.319 and 320-K of 2007, decided on 3rd March, 2008.

(On appeal from the judgment, dated 22-3-2007 passed by High Court of Sindh, Bench at Sukkur in Labour Appeals Nos.14 and 15 of 2006).

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

----S.O. 12---Dismissal from service---Bank employee---Charge of misappropriation or embezzlement of Bank's money---Deposit of misappropriated or embezzled amount by employee after charge was proved against him---Effect---Business of Bank is based on mutual trust between Bank and its customers---Bank acts as a custodian of public money---Any slight doubt or suspicion with regard to activities and business of Bank and dishonesty of its employees would shake confidence of its customers resulting in ruination of its business---Once such charge was proved against employee, irrespective of quantum of amount, the Bank would lose its confidence or faith in him, thus, awarding him punishment of dismissal from service would not be wrong---Any subsequent deposit would not constitute a mitigating circumstance in favour of employee to allow him reinstatement in service of Bank---Principles.

Suleman Habibullah, Advocate-on-Record for Petitioner.

Mehmood A. Ghani, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondents.

SCMR 2008 SUPREME COURT 913 #

2008 SCMR 913

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari and Zia Perwez, JJ

MUHAMMAD KHAN----Petitioner

Versus

MUHAMMAD AMIN through L.Rs. and others----Respondents

Civil Petitions Nos.345 to 349-K of 2007, decided on 3rd March, 2008.

(On appeal from the judgment and order of the High Court of Sindh, Bench at Sukkur, dated 4-4-2007 passed in C.Ps. Nos.D-296 to 300 of 2002).

Specific Relief Act (I of 1877)---

---Ss. 12, 39 & 54---Civil Procedure Code (V of 1908), O.VII, R.11---Limitation Act (IX of 1908), Art.113---Constitution of Pakistan (1973), Art.185(3)---Suit for specific performance of contract, sale cancellation and permanent injunction---Rejection of plaint---Plaint was rejected under O.VII, R.11 C.P.C. on the ground that it was barred by time---Revision petition and then constitutional petition against said rejection order, had been dismissed---Validity---Plaint had shown that plaintiff had filed suit beyond the period of limitation prescribed under Art. 113 of Limitation Act, 1908---Trial Court, in circumstances was not required to frame issue and record evidence---Argument advanced by counsel for the plaintiff was absolutely misconceived and not tenable---No infirmity or illegality existed in the judgment delivered by the High Court same warranted no interference---Petition for leave to appeal was dismissed.

Abdul Hamid and another v. Dilawar Hussain alias Bhalli and others 2007 SCMR 945 ref.

Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 3rd March, 2008.

SCMR 2008 SUPREME COURT 917 #

2008 S C M R 917

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Muhammad Akhtar Shabbir and Syed Sakhi Hussain Bokhari, JJ

FAROOQ KHAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.414 of 2007, decided on 20th February, 2008.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 18-4-2008 passed in Criminal Appeal No.537 of 2000 and Murder Reference No.287 of 2000).

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

----S. 302(b)/34--- Appreciation of evidence--- Broad-daylight occurrence---Presence of injured prosecution witnesses at place of occurrence was intrinsic and could not be doubted as same was unchallenged---Defence had not doubted or challenged in cross-examination injuries sustained by injured prosecution witnesses---Medical evidence supported injuries sustained by complainant (injured prosecution witnesses), which were not self-inflicted---Complainant (injured prosecution witness) had given number of injuries caused to deceased by accused, which was in line with post-mortem report---Complainant was brother of deceased and was a natural witness, and was not an interested witness---Evidence of complainant was worthy of credence, independent and natural and there was no lawful justifiable cause to discard his evidence---Recovery of blood-stained earth and reports of Chemical Examiner and Serologist had further proved prosecution story---No inference could be drawn in favour of accused on account of one injured prosecution witness, who merely stated that he had no knowledge of occurrence---Prosecution witnesses had passed test of lengthy cross-examination by defence---Prosecution had thus, established guilt of accused---Accused was convicted under S.302(b), P.P.C. by awarding him death sentence and was directed to pay Rs.1,00,000 as compensation to legal heirs of deceased.

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

----S. 302---Conviction---Scope---Witnesses, number of---Requirement---Conviction could be based on testimony of a single witness, if court was satisfied that witness was reliable---Emphasis would be on quality of evidence and not on its quantity.

Mali v. The State 1969 SCMR 76; Muhammad Ashraf v. The State 1971 SCMR 530; Muhammad Siddique alias Ashraf alias Achhi and 3 others v. The State 1971 SCMR 659; Muhammad Mansha v. The State 2001 SCMR 199 and Allah Bakhsh v. Shammi PLD 1980 SC 225 rel.

----Interested witness---Connotation.

An interested witness is one, who has motive to falsely implicate an accused or has previous enmity with the person involved. There is a rule that the statement of an interested witness can be taken into consideration for corroboration and mere relationship with the deceased is not "sufficient" to discredit the witness particularly when there is no motive to falsely involve the accused.

Nazir v. The State PLD 1962 SC 269 and Shehruddin v. Alhaj Rakhio 1989 SCMR 1461 rel.

Javed Aziz Sindhu, Advocate Supreme Court for Appellant.

Mian M. Asif Mumtaz, D.P.-G. for the State.

Date of hearing: 20th February, 2008.

SCMR 2008 SUPREME COURT 922 #

2008 S C M R 922

[Supreme Court of Pakistan]

Present: Muhammad Qaim Jan Khan and Muhammad Farrukh Mahmud, JJ

AZIZ ULLAH----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.346 of 2002, decided on 27th February, 2008.

(On appeal from the judgment, dated 11-6-2002 of the Lahore High Court, Lahore, passed in Criminal Appeal No.972 of 2000).

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

----Ss. 302/324/34---Reappraisal of evidence---Case of two versions---Prosecution's case was that occurrence had taken place in morning due to existing hostility over payment of money due from accused for purchasing diesel on credit for his tractor from deceased---Defence, plea was that deceased had attempted to commit sodomy upon the accused during his stay over a night in Diesel Agency of deceased and accused in his self-defence has fired at deceased and injured prosecution witness---Validity---Prosecution did not prove that accused was actually owner of a tractor or he used to purchase diesel from Diesel Agency of deceased or some dispute relating to payment of money in fact existed between them---According to prosecution, ledgers of Diesel Agency were being maintained, but no ledger was produced before court to show that accused had been purchasing diesel on credit---Defence plea was plausible and borne out from circumstances of case as there was no other reason available on record to launch assault---Accused for causing murder of deceased was convicted under S.302(c), P.P.C. and sentenced to 10 years' R.I., in addition to pay Rs.50,000 as compensation to legal heirs of deceased, while accused was also convicted under S.324, P.P.C. for causing injury to injured P.W. and sentenced to eight years' R.I., in addition to pay fine of Rs.25,000 to injured prosecution witnesses.

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

----Ss. 302/324/34---Case of two versions---Appreciation of evidence---Principles---Both versions were to be put in juxtaposition in order to ascertain as to which of them was true or nearer to truth.

Qari Abdur Rasheed, Advocate Supreme Court for Petitioner.

M. Siddique Khan Baloch, D.P.-G. for the State.

Date of hearing: 27th February, 2008.

SCMR 2008 SUPREME COURT 927 #

2008 S C M R 927

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J. Muhammad Moosa K. Leghari and Ch. Ejaz Yousaf, JJ

IJAZ MEHMOOD CHAUDHRY----Petitioner

Versus

LAHORE HIGH COURT, LAHORE through Registrar----Respondent

Civil Review Petition No.12 of 2004 in Civil Appeal No.13 of 2000, decided onl4th January, 2008.

(On review from the judgment, dated 4-12-2003 passed by this Court in Civil Appeal No.13 of 2002).

Supreme Court Rules, 1980---

----O. XXVI, R. 1---Constitution of Pakistan (1973), Art.188---Review of Supreme Court judgment---Civil service---Expunction of adverse remarks in Annual Confidential Report---Plea raised by petitioner was that an important aspect which had material bearing on result of the case escaped notice of Supreme Court in judgment under review---Validity---Supreme Court, while declining to interfere with order of Service Tribunal, proceeded altogether on wrong premise that reporting officer was the inspecting Judge for the district of petitioner's posting whereas the facts were the other way round---Fact that another Judge of High Court was the inspecting Judge for the district of petitioner's posting at the relevant time, being not controverted, case of petitioner was decided on wrong premise---Supreme Court, in exercise of review jurisdiction, modified its earlier judgment and set aside the adverse remarks contained in Annual Confidential Report of petitioner---Petition was allowed accordingly.

Shabbir Hussain and others v. Registrar, Lahore High Court, Lahore and others PLD 2004 SC 191; Noor Ellahi's case 1997 SCMR 1749; Mian Rafiq Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and another PLD 1997 SC 865; Abdul Ghaffar-Abdul Rehman and others v. Asghar Ali and others PLD 1998 SC 363; Government of the Punjab v. Ehsanul Haq Sethi PLD 1986 SC 684; Inspector-General of Police, Punjab, Lahore v. Rana Altaf Majid 1994 SCMR 1348; Muhammad Farooq Chauhan v. The Province of Punjab PLD 1987 SC 271; Masud Jamal v. Secretary to the Government of Pakistan 1999 SCMR 1542; Abdul Jabbar Khan v. Government of Sindh 1996 SCMR 850 and Muhammad Anwar v. The Secretary, Establishment Division PLD 1992 SC 144 ref.

Sh. Zamir Hussain, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Qazi M. Amin., Additional Advocate-General, Punjab along with Nazar Hussain, Deputy Registrar, Lahore High Court for Respondent.

Date of hearing: 14th January, 2008.

SCMR 2008 SUPREME COURT 934 #

2008 S C M R 934

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J. Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

MUHAMMAD ANWAR and others----Petitioners

Versus

MUHAMMAD SULTAN and others----Respondents

Civil Petition for Leave to Appeal No.763 of 2007, decided on 3rd March, 2008.

(Against judgment, dated 16-4-2007 passed by Peshawar High Court Circuit Bench D.I. Khan, in Civil Revision No.159 of 2006(PAN).

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

----S. 13---Constitution of Pakistan (1973), Art. 185 (3)---Right of pre-emption, exercise of---Non-mentioning of time, date and place of Talb-i-Muwathibat in plaint---Effect---Suit filed by pre-emptor was concurrently dismissed by the courts below---Plea raised by pre-emptors was that when the suit was dismissed, there was no interpretation of S.13 of North-West Frontier Province Pre-emption Act, 1987 by the superior courts, whereby mentioning of time, date and place of Talb-i-Muwathibat in plaint was declared mandatory---Validity---Material on record had established that in plaint pre-emptors had not mentioned date, time, and place of performance of Talb-i-Muwathibat and it was also not disclosed as to when and how, pre-emptors got knowledge of sale transaction in question---Record had failed to establish that immediately after having knowledge, pre-emptors had made Talb-i-Muwathibat in accordance with the provisions of S.13 of North-West Frontier Province Pre-emption Act, 1987---No illegality or irregularity in the judgment as well as in concurrent findings of fact recorded by the courts below warranting interference having been found, by Supreme Court, leave to appeal was refused.

Mian Pir Muhammad and another v. Faqir Muhammad Through L.Rs. and others PLD 2007 SC 302 fol.

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

Nemo for Respondents.

Date of hearing: 3rd March, 2008.

SCMR 2008 SUPREME COURT 937 #

2008 S C M R 937

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari and Mian Hamid Farooq, JJ

MUHAMMAD ASGHAR ALI and others----Appellants

Versus

SECRETARY, FINANCE DIVISION, GOVERNMENT OF PAKISTAN, ISLAMABAD and another----Respondents

Civil Appeals Nos.1135 to 1147, 1184 to 1189 of 2005, decided on 14th February, 2008.

(On appeal against the judgment, dated 6-2-2004 passed by. Federal Service Tribunal, Islamabad in Appeals Nos.54, 55, 56, 59, 60, 61, 62, 64, 65, 89, 112, 188 and 474(R)(C.S.) of 2003).

(a) Civil Service Regulations (C.S.R.)---

----Regln. 38(c)(1)---Fundamental Rules, R. 9(28)---Revised Leave Rules, 1980, Rr.17, 18-A & 32---Notification O. M. No.F-7(15)-R-13/88(Pt) dated 1-2-1990 issued by Government of Pakistan, Finance Division (Regulation Wing)---Constitution of Pakistan (1973), Art.212(3)---Leave to appeal was granted by Supreme Court to consider; whether personal allowance drawn by petitioners ought to have been treated as a part of their substantive pay for the purposes of leave encashment and pensionary benefits in light of Regln. 38(c)(1) of Civil Service Regulations, R.9(28) of Fundamental Rules and Rr.17, 18-A and 32 of Revised Leave Rules, 1980; and what was the effect of Office Memorandum No.F-7(15)-R-13/88(Pt) dated 1-2-1990 issued by Government of Pakistan, Finance Division (Regulation Wing).

(b) Civil Service Regulations (C.S.R.)---

----Regln. 38(c)(1)---Fundamental Rules, R. 9(28)---Revised Leave Rules, 1980, Rr.17, 18-A & 32---Notification O.M. No.F-7(15)-R-13/88(Pt) dated 1-2-1990 issued by Government of Pakistan, Finance Division (Regulation Wing)---Leave encashment---Principle---Appellants were retired civil servants who were denied personal allowance as a reckonable emolument in payment of difference of encashment of leave preparatory to retirement---Validity---No other allowance would be included and computed for the purpose of payment in lieu of leave preparatory to retirement---Service Tribunal had rightly concluded that for payment in lieu of leave, only Senior Post Allowance would be included in leave pay so admissible---Appellants could not controvert the legal position and could not even make a definite statement with regard to such payment having been made to any other civil servant as claimed by them-Supreme Court declined to interfere with the decision of Service Tribunal---Appeal was dismissed.

Appellants in person (in Civil Appeals Nos.1135 to 1139, 1145 and 1184 to 1189 of 2005):

Nemo for Appellants (in Civil Appeals Nos.1140 to 1144, 1146 and 1147 of 2005).

Sardar Muhammad Ghazi, Dy. Attorney-General, M. S. Khattak, Advocate-on-Record and Ch. Akhtar Ali, Advocate-on-Record for Respondents (in all cases).

Ali Sher, Section Officer, Ministry of Finance, Islamabad.

Date of hearing: 14th February, 2008.

SCMR 2008 SUPREME COURT 942 #

2008 SCMR 942

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

MUHAMMAD ASLAM----Petitioner

Versus

NAZIR AHMED----Respondent

C.P.L.A. No.916 of 2007, decided on 1st February, 2008.

(On appeal from the separate judgments, dated 24-9-2007 in Civil Revision No.425 of 2007 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi).

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

----O. XVII, R. 3---Phrase "proceed to decide the suit forthwith"---Connotation---Words "proceed to decide the suit forthwith" do not mean "to decide the suit forthwith" or "dismiss the suit forthwith"---Court may proceed with the suit notwithstanding either party failed to produce evidence, meaning thereby that in case of default to do a specific act by any party to the suit, next step required to be taken in the suit should be taken---Word "forthwith" means without any further adjournment yet it cannot be equated with the words "at once pronounce the judgment".

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

----O. XVII, Rr. 2 & 3---Constitution of Pakistan (1973), Art. 185 (3)---Dismissing the suit forthwith---Non-recording statement of plaintiff---Suit filed by plaintiff was dismissed by Trial Court on the ground that he failed to produce his evidence despite many opportunities---Order passed by Trial Court was set aside by Appellate Court and case was remanded, which order was maintained by High Court---Validity---On the date when suit was dismissed, plaintiff himself was in attendance and recourse to O.XVII, R.2 C.P.C. could have been made---Trial Court despite non-production of witnesses by plaintiff, instead of dismissing the suit forthwith, should have asked the plaintiff to come in witness-box---Supreme Court declined to interfere with the orders passed by two courts below---Leave to appeal was refused.

Ghulam Rasool v. Rai Ghulam Mustafa and others 1993 SCMR 2026; Ali Muhammad v. Murad Bibi 1995 SCMR 773 and Abdul Wahid v. Ghulam Mujaddad 1989 CLC 697 rel.

Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.

S. Zia Hussain Kazmi, Advocate Supreme Court and S. Zafar Abbas Naqvi, Advocate-on-Record for Respondent.

Date of hearing: 1st February, 2008.

SCMR 2008 SUPREME COURT 948 #

2008 S C M R 948

[Supreme Court of Pakistan]

Present: M. Javed Buttar, Mian Hamid Farooq and Sh. Hakim Ali, JJ

SECRETARY, REVENUE DIVISION and others----Appellants

Versus

MUHAMMAAD SALEEM----Respondent

Civil Appeal No.1986 of 2006, decided on 28th February, 2008.

(On appeal from the judgment, dated 4-7-2006 passed by the Lahore High Court, Lahore in Writ Petition No.1087 of 2006).

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

----Part-VII, Chaps.1, 2, 3, 3-A & 4 [Arts.175-212-B]---Superior Courts, jurisdiction of---Scope---Jurisdictions vested with apex and superior Courts are general, wider in scope and extent, while constraints/ prohibitions are narrower in their applications and dimensions---Jurisdiction of superior Courts is to be stretched to take into its folds all disputes to be resolved while limitation of jurisdictions and powers are to be squeezed and kept to minimum extent and length---Such is the rule of interpretation of jurisdiction, scope and limitations of superior Courts in Pakistan.

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

----Arts. 185(3) & 212(3)---Civil service---Question of law of public importance---Respondent was serving in Income Tax Department and he was not considered for promotion on the ground that Performance Evaluation Reports for a specified period were not genuine---High Court in exercise of constitutional jurisdiction directed the department to get the Performance Evaluation Reports completed by another officer who had been sometime superior officer of the respondent---Validity---Case of the respondent was of special and exceptional nature, as the senior of respondent was admittedly biased and not independent to evaluate his performance due to commencement of criminal proceedings amongst them, therefore, direction issued by High Court was apt in the circumstances of the case---Law had provided that it was the duty of department to get prepared Performance Evaluation Reports of an officer to keep and maintain the same, so that it could be used for the other prescribed purposes and at the time of promotion of the concerned official---Department, at the relevant juncture, was negligent in its duty to get prepared the Performance Evaluation Reports of respondent, therefore, respondent having no alternate remedy was right to beseech indulgence of High Court through its constitutional jurisdiction, as the department was bent upon to deprive the right of its own officer, due to its own inaction---Direction issued by High Court could not be considered to be violation of provisions of Art. 212 of the Constitution in circumstances---No substantial question of law of public importance having been raised by the authorities, warranting interference of Supreme Court, leave to appeal was refused.

Asghar Ahmad Kharl, Advocate Supreme Court for Appellants.

Respondent in Person.

Date of hearing: 28th February, 2008.

SCMR 2008 SUPREME COURT 951 #

2008 S C M R 951

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi, Muhammad Qaim Jan Khan and Mian Hamid Farooq, JJ

Mir IKHLAQ AHMAD and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.682 of 2006, decided on 6th February, 2008.

(On appeal from the judgment, dated 24-5-2003 passed by the High Court of Balochistan, Quetta in Murder Reference No.2 of 2003).

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

----S. 19(10)---Penal Code (XLV of 1860), 302(b)---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider; whether in absence of proper service, accused could have been convicted in absentia; whether death penalty awarded to accused commensurated with the gravity of alleged offence as only proverbial Lalkara was attributed to him; whether principle of consistency was violated in case of accused who had been awarded death sentence whereas co-accused having assigned a similar role was acquitted; whether conviction could have been awarded on the basis of interested, partisan and contradictory evidence; and whether evidence which had come on record was appreciated in its true perspective, settled norms of justice and well-entrenched principles qua criminal administration of justice or otherwise.

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

----Ss.7, 10 (11-A) & 19(10)---Penal Code (XLV of 1860), S.302(b)---Constitution of Pakistan (1973), Arts.9 & 10(1)---Reappraisal of evidence---Trial in absentia---Natural justice, principles of---Conviction and sentence of death awarded by Trial Court to accused persons in trial in absentia was confirmed by High Court----Validity---Trial of accused persons in absentia, undertaken by Trial Court was violative of Arts.9 and 10(1) of the Constitution and S.10(11-A) of Anti-Terrorism Act, 1997, and could not be allowed to sustain---Accused persons were not afforded any opportunity of hearing and thus they were condemned unheard which was contrary to the principles of natural justice---Judgments, convictions and sentences rendered and awarded by both the courts below, in absence of accused persons, to their extent were not sustainable under the law same being violative of the Constitution and law, which had necessitated retrial of the case---Supreme Court set aside the conviction and sentence awarded to accused persons and remanded the case to Trial Court for decision afresh in accordance with law---Appeal was allowed.

Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 distinguished.

Zia Ullah Khan and others v. Government of Punjab and others PLD 1989 Lah. 554; Government of Punjab through Secretary, Home department v. Zia Ullah Khan and 2 others 1992 SCMR 602 and Qari Abdul Hayee and another v. the State 2005 YLR 1865 rel.

Kamran Murtaza, Advocate Supreme Court for Appellants.

Mehmood Raza Khan, Additional Advocate-General, Balochistan for the State.

Date of hearing: 6th February, 2008.

SCMR 2008 SUPREME COURT 960 #

2008 S C M R 960

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Muhammad Akhtar Shabbir and Zia Perwez, JJ

Dr. MIR ALAM JAN----Appellant

Versus

Dr. MUHAMMAD SHAHZAD and others----Respondents

Civil Appeal No.30 of 2008, decided on 1st April, 2008.

(On appeal from the judgment, dated 8-2-2007 of the Peshawar High Court, Peshawar, passed in Writ petition No.1604 of 2005).

Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Civil service---Appointment---High Court, in exercise of the constitutional jurisdiction under Art.199 of the Constitution was not expected to perform the functions of a selection Authority in service matters so as to substitute its opinion for that of competent authority.

Muhammad Sardar Khan, Senior Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Appellant.

Imtiaz Ali, Advocate Supreme Court for Respondent No.1.

Dr. Amer Hamid, D.M.S. (Litigations), Safiullah, Legal Assistant and Bughdad Shah, S.O. (Health) for Respondents Nos.2 and 3.

M. Zaman Bhatti, Advocate Supreme Court for Respondents Nos.4 and 5.

SCMR 2008 SUPREME COURT 962 #

2008 S C M R 962

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad and Muhammad Moosa K. Leghari, JJ

MIR ALAM and others----Petitioner

Versus

REGISTRAR OF TRADE UNIONS and others----Respondents

C.P. No.674-K of 2007, decided on 4th February, 2008.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 48---Constitution of Pakistan (1973), Art.185(3)---Dismissal from service---Respondents, who were dismissed from service by the management, filed grievance petition against their dismissal, which was dismissed by the Labour Court---Respondents filed an appeal against said dismissal order before High Court under S.48(1) of Industrial Relations Ordinance, 2002; during pendency of said appeal respondents filed application under S.48(3) of Industrial Relations Ordinance, 2002 which was decided by the High Court vide impugned order, whereby membership of respondents as members of Trade Union was restored---High Court while disposing of application filed by respondents under S.48(3) of Industrial Relations Ordinance, 2002, had completely ignored the material facts, which if taken into consideration, would have never allowed the said impugned order---High Court while dealing with application under S.48(3) of Industrial Relations Ordinance, 2002, did not take notice of the fact that appeal filed by the respondents under S.48(1) of the Ordinance, was pending adjudication and it was not conceivable that said fact was not brought to the notice of the High Court and it was surprising that High Court should come to the conclusion directing the Registrar, Trade Unions to hold fresh election whereas respondents were allowed to participate for electing Collective Bargaining Agent, when they were not even in the service---Impugned order could not be sustained in circumstances---Petition for leave to appeal was converted into appeal and was allowed and impugned order was set aside by the Supreme Court ---Respondents could not be deemed to be the workers of the employers until their appeals were decided in their favour.

S. Shahanshah Hussain, Advocate Supreme Court and Suleman Habibullah, Advocate-on-Record for Petitioner.

SCMR 2008 SUPREME COURT 966 #

2008 S C M R 966

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Actg. C.J. and Sardar Muhammad Raza Khan, J

SOHAIL AHMED BABAR----Petitioner

Versus

THE STATE and another---Respondents

Crl. P.L.A. No.200-L of 2007, decided on 23rd May, 2007.

(On appeal from judgment of Lahore High Court, Lahore, dated 8-3-2007 passed in Criminal Miscellaneous No.10360/CB of 2006).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal. Code (XLV of 1860), S.489-F---Constitution of Pakistan (1973), Art.185(3)---Recalling of bail granting order---Petitioner was aggrieved by order passed by High Court whereby order granting bail to petitioner was recalled---Charge had been framed against petitioner and case had been set down for recording of evidence, which was likely to be commenced soon---Impugned order not suffering from any illegality or arbitrariness, petition for leave to appeal was dismissed.

Muhammad Shamsher Iqbal, Advocate Supreme Court for Petitioner.

Chaudhry Munir Sadiq, Deputy Prosecutor-General for the State.

SCMR 2008 SUPREME COURT 967 #

2008 S C M R 967

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

Ch. MUHAMMAD ASLAM----Petitioner

Versus

CHAIRMAN, COMMITTEE FOR ALLOTMENT OF OFFICIAL RESIDENTIAL ACCOMMODATION, P.I.M.S. ISLAMABAD and others----Respondents

C.P.L.A. No.13 of 2008, decided on lithe February, 2008.

(On appeal from judgment, dated 12-12-2007 in Appeal No.200(R)(C.S.) of 2006 passed by the Federal Service Tribunal, Islamabad).

Accommodation Allocation Rules, 2002---

----Rr. 6 & 7---Allotment of residential accommodation to employees of Pakistan Institute of Medical Sciences which had its own residential colony---Allotment of residential accommodation had been made after the promulgation of Accommodation Allocation Rules, 2002, in order to set at rest the controversy of allotment of such accommodation to employees of Pakistan Institute of Medical Sciences---Supreme Court directed the departmental allotment committee to examine cases of employees, in the light of Accommodation Allocation Rules, 2002 and finalize the same within specified time.

Ch. Afrasiab Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Raja Muhammad Irshad, D.A.-G. along with S. Zamir Naqvi, Superintendent P.I.M.S. and Raja Abdul Ghafoor, Advocate-on-Record for Respondents Nos.1 and 2.

Muhammad Ashraf, J.E.O. for Respondent No.3.

Respondents Nos.5 and 6 in person.

Date of hearing: 11th February, 2008.

SCMR 2008 SUPREME COURT 973 #

2008 S C M R 973

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi, Mian Hamid Farooq and Muhammad Farrukh Mahmud, JJ

MUZAMMIL IQBAL----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.222 of 2003, decided on 17th March, 2008.

(On appeal from the judgment, dated 6-5-2002 of the Lahore High Court, Lahore, passed in Criminal Appeal No.68/J of 2002 and Murder Reference No.24-T of 2002).

Penal Code (XLV of 1860)---

---Ss. 302(b)/34 & 149---Reappraisal of evidence---Sentence, reduction in---Time 'and place of occurrence had not been challenged---Complainant and other prosecution witness lived at a distance of five acres from the house of deceased; they being related inter se, their being together along with deceased was not exceptional---No personal previous enmity or grudge existed between prosecution witness and accused so as to depose falsely against them---Name of prosecution witness was mentioned in F.I.R. which was lodged within two hours of the occurrence and his statement was supported by medical evidence and circumstances of the cage---Both the eye-witnesses had given consistent and trustworthy account of occurrence, they had no personal grudge against the accused---F.I.R. was lodged promptly which had ruled out the theory that complainant was not present at the time of occurrence---Prosecution witnesses, deceased and accused knew one another very well, being relatives---Occurrence lasted for quite some time, assailants had been raising Lalkara and it was not, in circumstances difficult for the prosecution witnesses to identify accused---F.I.R. revealed that the lanterns were burning at the time of occurrence---Acquittal of three co-accused would not benefit accused as courts below found their case distinguishable from those who were convicted--Ocular account was supported by medical evidence as all deceased had lost their lives due to fire-arm injuries---Prosecution had successfully proved the motive, which was not seriously challenged---Prosecution had successfully proved its case against accused---Co-accused who was assigned similar role was sentenced to imprisonment for life; he had not challenged his conviction and sentence and neither State nor the complainant had filed any petition seeking enhancement of sentence---When guilt accused proved to be equal and indistinguishable, then no distinction could be made while awarding sentence to each of them---While maintaining conviction of accused recorded under S.302(b) P.P.C., his death sentence was reduced to imprisonment for life, but other sentences were maintained.

Shaheb Ali v. The State PLD 1970 SC 447 ref.

Mian Aftab Farrukh, Senior Advocate Supreme Court for Appellant.

Ms. Yasmeen Sehgal, D.P.-G. Punjab for the State.

SCMR 2008 SUPREME COURT 980 #

2008 SCMR 980

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

ALAM CHAND alias ALOOMAL and 2 others----Petitioners

Versus

JAMIL AHMAD and another----Respondents

Criminal Petition No.325 of 2007, decided on 10th March, 2008.

(On appeal from the judgment, dated 12-11-2007 in Criminal Miscellaneous No.116 of 2007 passed by the High Court of Sindh Karachi).

Criminal Procedure Code (V of 1898)---

----S. 497---Pre-arrest bail, grant of---Object---Pre-arrest bail may be granted when a case is based on enmity, mala fide, registered for ulterior motive, or where no offence is shown to have been committed on the basis of the record because the object is to protect the innocent persons from humiliation, harassment and disrespect.

Ch. Waris Ali v. The State 2007 SCMR 1607; Lal Muhammad Kalhoro and others v. The State 2007 SCMR 843; Masood Ahmed alias Muhammad Masood and another v. The State 2006 SCMR 933; Syed Muhammad Firdaus and others v. The State 2005 SCMR 784; Rais Wazir Ahmad v. The State 2004 SCMR 1167; Mst. Qudrat Bibi v. Muhammad Iqbal and another 2003 SCMR 68; Malik Zafar Abbas v. Agha Raza Abbas Qazilbash and another PLD 2002 SC 529 and Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82 ref.

Muhammad Ilyas Siddiqui, Advocate Supreme Court and Ch. Muhammad Akram, Advocate-on-Record for Petitioners.

M. Qasim Khan, A.A.-G. Sindh, and Raja Abdul Ghafoor, Advocate-on-Record for Respondent/State.

Date of hearing: 10th March, 2008.

SCMR 2008 SUPREME COURT 984 #

2008 S C M R 984

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi, Mian Hamid Farooq and Muhammad Farrukh Mahmud, JJ

MUHAMMAD AYAZ KHAN----Appellant

Versus

MURTAZA and others----Respondents

Criminal Appeal No.92 of 2002, decided on 14th March, 2008.

(On appeal from the judgment, dated 2-7-2001 passed by Lahore High Court, Lahore in Criminal Appeal No.778 of 1995 with Murder Reference No.515 of 1995/2002).

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Modification of sentence from death to imprisonment for life by High Court---Leave to appeal was granted by the Supreme Court to consider the question as to whether in the circumstances of the case, modification of sentence by the High Court was justified.

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

----S. 302(b)---Reappraisal of evidence---Sentence, reduction in---Mitigating circumstances---Prosecution had failed to prove immediate cause of the occurrence and motive as set up by the prosecution---Motive though is not always an essential element of murder and weakness or absence of motive by itself may not be a valid reason for lesser punishment but in the present case, the prosecution had also not been able to bring on record the material facts relating to the, manner in which the occurrence had taken place, therefore, apart from the motive, the mystery in the circumstances leading to the occurrence would create sufficient mitigation in favour of the accused for lesser punishment---Complainant having not been able to point out any material on record to persuade for interference in the impugned judgment, Supreme Court dismissed the appeal in circumstances.

Kh. Sultan Ahmed, Senior Advocate Supreme Court for Appellant.

Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court and Muhammad Siddique Khan Baloch, D.P.-G. for Respondents.

Date of hearing: 14th March, 2008.

SCMR 2008 SUPREME COURT 987 #

2008 S C M R 987

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

MUHAMMAD ANWAR----Petitioner

Versus

THE STATE-Respondent

Jail Petition No.78 of 2006, decided on 26th February, 2008.

(On appeal from the judgment, dated 25-1-2006 in Criminal Appeal No.708 of 2001, M.R. No.757, of 2001 passed by Lahore High Court, Multan Bench, Multan).

Criminal Procedure Code (V of 1898)---

----S. 345(2)---Penal Code (XLV of 1860), S.302(b)---Compounding of offence---Commutation of sentence---Mitigating circumstances---Offence of Qatl-i-Amd punishable with sentence of death or imprisonment for life as Ta'zir though can be compounded by all the legal heirs of the deceased under S.345(2), Cr.P.C. yet, its acceptance within the purview of S.345(2), Cr.P.C. is dependent upon permission of the Court which has to be accorded keeping in view attending circumstances of each case---Accused, in the present case, had committed murder of his own father and that too, in a brutal manner, without any cause---Accused had two young sisters, the other male member of the family i.e. his brother was behind the bars in another case and it was pleaded that girls would be exposed to the adversities of life, in case the accused was executed, therefore, while taking the compromise as a mitigating circumstance, Supreme Court ordered that the sentence of death inflicted on accused be reduced to imprisonment for life---Order accordingly.

Ghulam Shabbir and others v. The State 2003 SCMR 663; Muhammad Saleem v. The State PLD 2003 SC 512; Muhammad Younis v. The State 2002 SCMR 1308; Sh. Muhammad Aslam and another v. Shaukat Ali alias Shauka and others 1997 SCMR 1307; Muhammad Bashir v. The State PLD 1982 SC 139; Iftikhar Ahmad v. The State PLD 1982 SC 277; Muzaffar alias Zafar Ali v. The State 1982 SCMR 695; Javed and another v. The State 1983 SCMR 557; Nazar Muhammad v. The State 1983 SCMR 631; Nazar Muhammad v. The State 1983 SCMR 667; Inayat Ullah and another v. The State 1984 SCMR 488; Labah and another v. The State 1984 SCMR 1514; Abdul Quddus v. The State 1985 SCMR 172; Muhammad Hanif v. The State 1985 SCMR 612; Ejaz Ahmed alias Jhajja v. The State 1985 SCMR 780; Muhammad Aqeel alias Billa v. The State 1986 SCMR 1420; Inayat and 5 others v. The State 1988 SCMR 148 and Abdul Hameed and 4 others v. The State 1988 SCMR 1420 ref.

Ch. Muhammad Akram, Advocate Supreme Court for Petitioner.

Ch. Munir Sadiq, D.P.-G., Punjab for the State.

Date of hearing: 26th February, 2008.

SCMR 2008 SUPREME COURT 991 #

2008 S C M R 991

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi, Muhammad Qaim Jan Khan and Zia Perwez, JJ

AMANAT ALI and 2 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.432 of 2005, decided on 13th February, 2008.

(On appeal from the judgment, dated 27-4-2005 passed by Lahore High Court, Rawalpindi Bench, in Criminal Appeal No.100 of 2003).

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

----S. 9(c)---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted for safe administration of justice, inter alia, to consider the contentions of the accused that Sub-Inspector of Police, the complainant, had investigated the case himself, thus he being interested in the prosecution should not have acted as Investigating Officer; that out of 2-1/2 kilograms of heroin kept in eight packets, only one gram was sent for chemical analysis and that all the three accused persons were said to be sitting inside the car, from which the said heroin was recovered from its secret cavities and on search of the said car an open transfer letter was also secured, as such, none of them were the owners of the car, therefore, they had no exclusive knowledge about the presence of heroin therein.

Zahoor Ahmad Awan and another v. The State 1997 SCMR 543 and Taj Wali and 6 others v. The State PLD 2005 Kar. 128 ref.

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

----S. 9(c)-Reappraisal of evidence---Benefit of doubt---Prosecution case was that accused was driving the vehicle, the ownership of which was also claimed by him on the basis of open transfer letter in his possession and fact that vehicle was being run by the accused as taxi, was neither contradicted nor any evidence was brought on record to suggest that co-accused of the accused being his associate in the crime had the knowledge of presence of heroin being kept in the secret cavities of the vehicle---Validity---Careful examination of evidence suggested that in the light of circumstances leading to the occurrence, the prosecution had not been able to prove the charge against the said co-accused beyond reasonable doubt---No evidence was available to the effect that co-accused being companions of the accused in the crime had the conscious knowledge of presence of heroin in the taxi car to treat them in joint possession of recovered heroin---Supreme Court, in view of doubt arising in the prosecution case to the extent of participation of co-accused persons in the crime, while giving them benefit of doubt, acquitted them from the charge and directed that if they were not required in any other case, they shall be forthwith released from jail.

----S. 9(b)(c)---Reappraisal of evidence---Sentence, reduction in---Accused being driver and owner of the vehicle, would stand on different footing than his companions in the taxi car; as he being in the exclusive control of the vehicle in which heroin was kept in secret cavities, would be deemed to have been in exclusive possession of the heroin recovered from the car, therefore, charge against him stood proved beyond doubt---Only a small quantity of one gram of heroin was taken from all the eight packets in a separate sealed parcel for chemical examination, therefore, notwithstanding the fact that the report of the chemical examiner was positive, the crucial question for determination would be as to whether a quantity of one gram would be sufficient to ascertain the origin of the contents of all the eight packets---Apparently the claim of the raiding party to have taken small quantity of heroin from each packet for chemical analysis appeared to be misguiding rather the circumstances would show that one gram of heroin was taken from one packet and thus, report would be relevant only to that extent---In the normal situation it was essential for the raiding party to prepare a separate parcel of at least one gram from each packet for chemical analysis and same having not been done, a serious doubt, would arise in respect of the origin of contents of all the packets---In consequence thereto, it would not be safe to bring the case within the ambit of S.9(c) of Control of Narcotic Substances Act, 1997 for the purpose of conviction and sentence rather a legitimate presumption would be that the report of Chemical Examiner would be read only to the extent of one packet of the approximate quantity of less than one kg and in that the case would squarely fall within the ambit of S.9(b) of the said Act---Conviction of accused, in circumstances, under S.9(c) of the Act was bad in law---Accused had remained in jail throughout from the date of his arrest and had almost completed a period of five 'years of his sentence, which may be considered sufficient sentence under S.9(b) of the Act---Supreme Court, while converting the conviction of accused under S.9(c) of the Act to that of S.9(b) reduced his sentence equal to the period already undergone by him with fine imposed upon him by the Trial Court---Accused was also held to be entitled to the benefit of S.382-B, Cr.P.C. and was ordered to be released from jail forthwith if not required in any other case.

Dr. Babar Awan, Advocate Supreme Court for Appellants.

Mian Asif Mumtaz, D.P.-G. for the State.

Date of hearing: 13th February, 2008.

SCMR 2008 SUPREME COURT 997 #

2008 S C M R 997

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

MUSA----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.115 of 2005, decided on 13th March, 2008.

(On appeal from the judgment, dated 25-10-2002 in Criminal Appeals Nos.67 and 88 of 1999 passed by the Lahore High Court, Multan Bench, Multan).

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

----S. 302(b)---Reappraisal of evidence---F.I.R. was lodged the same day without any delay---Prosecution case rested on the statements of eyewitnesses---One prosecution witness though was given up to the extent of recoveries yet, with regard to murder he fully corroborated the testimony of another prosecution witness---Record revealed that both the witnesses, at the trial, were cross-examined at length but nothing favourable to accused and damaging to the prosecution was elicited from them---Statements of both the eye-witnesses found support from the medical evidence, account whereof, at the trial, was furnished by the doctor who had conducted the postmortem examination on the dead body of the deceased---Fifteen injuries were found on the dead body, and the recovery of fifteen empties from the place of occurrence, implied that the medical evidence in no way, was inconsistent with the prosecution story---Kalashnikov allegedly used in the crime was also got recovered from the accused and as per Forensic Science Laboratory report i.e. the empties recovered from the place of occurrence were found to have been fired from said Kalashnikov---Crime-empties, as per record, were taken into possession and sealed at the spot on the same day, and were sent to office of the Forensic Science Laboratory, where they matched with the kalashnikov recovered from the accused, therefore it not only excluded the possibility of implantation but left no room to disbelieve the prosecution .story---Guilt of the accused was fully brought home at the trial by the prosecution and the considerations which weighed with the Trial Court as well as the appellate. Court fully conformed to the requirements of law and did not call for interference by the Supreme Court---Appeal was dismissed.

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

----S. 302(b)---Reappraisal of evidence---Absence of motive---Not a mitigating circumstance---Motive, proved or otherwise, is immaterial in presence of ocular evidence and murder may be committed even for no motive or on a minor pretext; what to speak of proving motive, in certain cases where the motive was shrouded in mystery or was not alleged, conviction was maintained and absence of motive was not taken as a mitigating circumstance.

Syed Mushtaq Ahmad v. Siddiqullah and others PLD 1975 SC 160; Wazir Gul v. The State 1975 SCMR 289; Mukhtar Ahmad and others v. The State 1 LD 2004 SC 563; Federal Government Ministry of Defence v. Sepoy Liaqat Ali 2004 SCMR 1676; Khurram Malik and others v. The State and others PLD 2006 SC 345; Mst. Nazakat v. Hazrat Jamal and another PLD 2007 SC 453 and Ashfaq Ahmed v. The State 2007 SCMR 641 ref.

Sardar Muhammad Siddique Khan, Advocate Supreme Court for Appellant.

Ch. Munir Sadiq, D.P.-G., Punjab for the State.

Date of hearing: 13th March, 2008.

2008 S C M R 1021

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and M. Javed Buttar, JJ

ALLAH DITTA----Petitioner

Versus

GHULAM MUHAMMAD and 3 others----Respondents

Civil Petition No.2742-L of 2000, decided on 18th May, 2005.

(On appeal from the judgment, dated 5-10-2000 of the Lahore High Court, Bahawalpur Bench, Bahawalpur passed in Writ Petition No.224 of 1978/BWP).

(a) West Pakistan Land Reforms Regulation, 1959 (M.L.R.64)---

----Para. 25---West Pakistan Land Revenue Act (XVII of 1967), S.42---Civil Procedure Code (V of 1908), S.2(2)---Qanun-e-Shahadat (10 of 1984), Art.114---Mutation of exchange---Attestation of mutation on basis of consent decree of Civil Court---Cancellation of mutation by Chief Land Commissioner on application of party to decree on the ground that transaction of exchange was violative of para.25 of Land Reforms Regulation, 1959, thus, decree was without jurisdiction and liable to be ignored-Validity-Revenue authorities would be bound to act under such decree, which they could not ignore on any ground whatever--Chief Land Commissioner had no lawful authority to issue such directions and quash such mutation---Applicant being party to exchange proceedings could not be allowed to turn around and assail same on a technicality and was estopped to re-open matter through a miscellaneous application---Impugned order was held to be without jurisdiction and of no legal effect.

Ghulam Muhammad alias Ghulamoon v. Maula Dad and 6 others 1980 SCMR 314 rel.

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

----S. 42---Civil Procedure Code (V of 1908), S.2(2) & O.XXIII, R.3---Mutation, attestation of---Consent decree passed by civil court---Validity---Revenue authorities would be bound to act under such decree, which they could not ignore on any ground whatever.

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

M.A. Aziz, Advocate Supreme Court on behalf of Advocate-General, Punjab for Respondent No.2.

Nemo for other Respondents.

Date of hearing: 18th May, 2005.

SCMR 2008 SUPREME COURT 1024 #

2008 SCMR 1024

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Falak Sher, JJ

MUHAMMAD NAEEM BUTT---Petitioner

Versus

SHAUKAT ALI and others---Respondents

Civil Petition No.2372-L of 2004, decided on 28th July, 2004.

(On appeal from the judgment dated 25-5-2004 passed by the Lahore High Court, Lahore in C.R. No.1820 of 2003).

Specific Relief Act (I of 1877)---

----S. 12---Transfer of Property Act (IV of 1882), S.52---Civil Procedure Code (V of 1908), O.I, R.10(2)---Constitution of Pakistan (1973), Art.185(3)---Suit for specific performance of agreement to sell---Lis pendens, rule of---Decree passed in favour of plaintiff was challenged by defendant in appeal---Application by subsequent purchaser of disputed property for his impleadment as party in appeal---Appellate Court dismissed application---Revision by subsequent purchaser was dismissed by High Court after taking into consideration that he, knowing well about passing of such decree, had purchased property at his own risk, thus, he was ,not a necessary party and rule of lis pendens would apply---Supreme Court dismissed petition and refused leave to appeal.

Messrs Aman Enterprises Sialkot v. Messrs Rahim Industries Pakistan Ltd. PLD 1993 SC 292 fol.

Ardeshir Cowasjee and others v. Karachi Building Control Authority PLD 2004 SC 70 distinguished.

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

Ahmed Waheed Khan, Advocate Supreme Court and Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Respondents.

Date of hearing: 28th July, 2004.

SCMR 2008 SUPREME COURT 1027 #

2008 S C M R 1027

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad and Ghulam Rabbani, JJ

Civil Petition No.422-K of 2005

RASHEED HUSSAIN MALIK and another----Petitioners

Versus

Mst. HANIFA BAI and others----Respondents

(On appeal from the judgment, dated 20-4-2005 passed by Sindh High Court, Karachi in Revision Application No.234 of 2002).

Civil Petition No.341-K of 2005

Mst. SARDAR BEGUM and another----Petitioners

Versus

Mst. ABIDA BEGUM and others----Respondents

(On Appeal from the order, dated 27-4-2006 passed by Sindh High Court, Karachi in Revision Application No.20 of 2004).

Civil Petitions Nos.422-K, 341-K and C.M.A. No.41-K of 2005, decided on 22nd March, 2007.

Civil Procedure Code (V of 1908)---

----S. 115---Limitation Act (IX of 1908), Art.181---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to examine question whether a revision petition dismissed in default could be restored; and in such eventuality whether the provision contained in Art.181 of Limitation Act, 1908 would be applicable.

Muhammad Yousuf and others v. Mst. Najma Bibi and others PLD 2006 SC 512 ref.

Abdul Aziz A. Munshi, Senior Advocate Supreme Court, Abdul Qadir, Advocate Supreme Court and A. Aziz Khan Advocate-on-Record for Petitioners (in Civil Petition No.422-K of 2005).

Rana M. Shamim, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent No.1 (in Civil Petition No.422-K of 2005).

Nemo for Respondents Nos.2 to 5 (in Civil Petition No.422-K of 2005).

Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioners (in Civil Petition No.341-K of 2005).

Nemo for Respondents (in Civil Petition No.341-K of 2005)

SCMR 2008 SUPREME COURT 1028 #

2008 S C M R 1028

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Mian Shakirullah Jan, JJ

ALLAH DITTA WADDANI----Petitioner

Versus

MUHAMMAD NAWAZ and others----Respondents

Criminal Petition for Leave to Appeal No.334/L of 2004, decided on 12th January, 2005.

(On appeal from the judgment Lahore High Court, Multan Bench, dated 26-4-2004 passed in Criminal Appeal No.257 of 2000 and Murder Reference No.314 of 2000).

Penal Code (XLV of 1860)---

----Ss. 302(b) & 302(c)---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal against acquittal of accused under S.302(b), P.P.C., grant of---High Court on accepting the plea of accused that he was not present at the time of incident, had disbelieved the eye-witnesses as well as the medical evidence on. the ground that he had received injuries with blunt weapon---Notwithstanding the fact whether the injuries were with blunt or sharp weapon, the fact remained that the accused was found injured on the date of arrest---As regards the other accused, plea taken by him for causing the murders of the two deceased on account of "Ghairat" on having seen them in a compromising position was. prima facie, not acceptable as according to record they were husband and wife---Both the matter required further consideration---Leave, to appeal was granted to the complainant accordingly to re-evaluate the prosecution evidence in the interest of justice.

Muhammad Sharif Khokhar, Advocate Supreme Court for Petitioner.

Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Respondent No.2.

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

Saadullah Khan, S.H.O. on Court Order.

Date of hearing: 12th January, 2005.

SCMR 2008 SUPREME COURT 1031 #

2008 S C M R 1031

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

MUHAMMAD ALI through L.Rs. and another---Petitioners

Versus

MANZOOR AHMED---Respondent

Civil Petition No.558-L of 2001, decided on 25th June, 2004.

(On appeal from judgment dated 6-10-2000 of the Lahore High Court, Lahore, passed in R.S.A. No.498 of 1978).

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

----Ss. 11 & 16---Agreement to sell by minor---Minor at relevant time was under care and guardianship of buyers' father and uncle---Held: Minor was under influence of buyers.

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

----S. 11---Contract by minor---Validity---Agreement by person under legal disability (a minor) would be void ab inito and incapable of rectification or confirmation even after attaining age of majority as law forbids such transaction.

Chairman, District Screening Committee, Lahore v. Sharif Ahmad Hashmi PLD 1976 SC 258 ref.

Ihsan-ul-Haq Ch. Advocate Supreme Court with Mehmood-ul-Islam, Advocate-on-Record for Petitioners.

Muhammad Nasrullah Warraich, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Respondent.

Date of hearing: 25th June, 2004.

SCMR 2008 SUPREME COURT 1033 #

2008 S C M R 1033

[Supreme Court of Pakistan]

Present: Muhammad Qaim Jan Khan and Syed Sakhi Hussain Bokhari, JJ

MOHIM KHAN----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.233 of 2007, decided on 25th April, 2008.

(On appeal from the judgment dated 11-12-2006 passed by High Court of Balochistan, Quetta, in Criminal Jail Appeal No.87 of 2003).

Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan (1973), Art.185(3)---Contentions of the accused were that there was a delay of 18 hours in lodging the F.I.R.; it was a night occurrence and the alleged confession was the result of coercion---State Counsel, on the other hand argued that confessional statement had been recorded on the very next day and thus, no question of coercion could arise and that the evidence was duly corroborated with recovery and also supported by medical evidence---Supreme Court, in order to thrash out the real facts and reach the correct conclusion in accordance with the laid down principles of safe administration of criminal justice granted leave to appeal.

Muhammad Zaman Bhatti, Advocate Supreme Court for Petitioner.

Mehmood Raza, Additional Advocate-General for the State.

SCMR 2008 SUPREME COURT 1034 #

2008 S C M R 1034

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and M. Javed Buttar, JJ

MUHAMMAD AZAM and another----Petitioners

Versus

MUHAMMAD AKRAM----Respondent

C.M.A. No.461-L of 2005 and Civil Petition No.16-L of 2004, decided on 2nd June, 2005.

(On appeal from the judgment, dated 31-10-2003 of the Lahore High Court, Lahore, passed in S.A.O. No.97 of 2002).

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Specific Relief Act (I of 1877), S.12---Constitution of Pakistan (1973), Art.185(3)---Ejectment petition---Pendency of tenant's suit against landlord for specific performance of agreement to sell-Plea of tenant was that after such agreement, his possession over premises was no longer as tenant, but as owner thereof, thus, he could not be evicted therefrom till final decision of his suit---Such plea was repelled concurrently by two lower Appellate Courts---Supreme Court upheld ejectment order, dismissed petition and refused leave to appeal.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Constitution of Pakistan (1973), Art.185(3)---Petition for leave to appeal against ejectment order upheld by High Court---Operation of impugned order not suspended by Supreme Court---Non-vacation of premises by tenant despite command of High Court---Effect---Such conduct of tenant was contumacious being in complete defiance of command of High Court---Supreme Court directed Sub-Division Police Officer concerned to evict tenant in compliance with order of High Court and, hand over peaceful and vacant possession of premises to landlord by or before specified date.

S.M. Naseem, Advocate Supreme Court with M.A. Qureshi, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 2nd June, 2005.

SCMR 2008 SUPREME COURT 1037 #

2008 S C M R 1037

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and M. Javed Buttar, JJ

Q.B.E. INSURANCE (INTERNATIONAL) LTD.---Petitioner

Versus

JAFFAR FLOUR AND OIL MILLS LTD. and others---Respondents

Civil Petition No. 290-L of 2002, decided on 4th August, 2004.

(On appeal against the judgment, dated 20-11-2001 passed by the Lahore High Court, Lahore, in Civil Revision No.1868 of 1993).

Civil Procedure Code (V of 1908)---

----O. VII, R.11---Rejection of plaint, application for---Defendant's plea was that issue involved in suit had already been decided in earlier litigation in terms of compromise---Plaintiff denied such plea---Validity---Plaint had been entertained on basis of whatever cause of action had been mentioned therein---Parties were at variance on question of earlier litigation ending with compromise---Such question could be settled only after framing of issues and recording of evidence---Application was rejected in circumstances.

Raza Hussain Shamsi, Advocate Supreme Court and Sh. Salahud-Din, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 4th August, 2004.

SCMR 2008 SUPREME COURT 1039 #

2008 S C M R 1039

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad and Ghulam Rabbani, JJ

Messrs ADNAN TRADING COMPANY----Petitioner

Versus

APPELLATE TRIBUNAL CUSTOMS, CENTRAL EXCISE SALES TAX and others----Respondents

Civil Petition No.55-K of 2006, decided on 6th October, 2006.

(On appeal from the judgment, dated 22-11-2005 passed by Sindh High Court, Karachi in Special Sales Tax Appeal No.40 of 2004).

Sales Tax Act (VII of 1990)---

----S. 47---Civil Procedure Code (V of 1908), S.151---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to consider questions that whether the High Court while exercising appellate jurisdiction under S.47 of Sales Tax Act, 1990 would be competent to exercise the inherent powers vesting in it under S.151, C.P.C.; and that whether the High Court was under obligation to consider the question of condonation of delay in filing the appeal on equitable ground, when issue pertained to levy of tax.

Messrs Bambino Ltd. v. Messers Selmor International Ltd. and another PLD 1983 SC 155 and Hudaybia Textile Mills Ltd. and another v. Allied Bank of Pakistan Ltd. and others PLD 1987 SC 512 rel.

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

Nemo for Respondents.

SCMR 2008 SUPREME COURT 1040 #

2008 S C M R 1040

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Rana Bhagwandas and Mian Shakirullah Jan, JJ

MUHAMMAD ASLAM and 3 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.90 of 2002, decided on 7th January, 2005.

(On appeal against the judgment, dated 16-3-2001 passed by the Lahore High Court, Lahore in Criminal Appeal No.592 of 1994).

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

----Ss. 364/149 & 148---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to accused to reappraise the evidence to satisfy whether the conviction and sentence awarded to them was sustainable.

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

----Ss. 364/149 & 148---Appraisal of evidence---Varying statements of eye-witnesses had made their presence at the place of occurrence at the relevant time doubtful---Eye-witnesses were admittedly interested in the prosecution case and in the absence of any corroboration their testimony could not be safely accepted---Even the investigation in the case was not properly conducted---Investigating Officer had not made any effort to effect the incriminating recoveries including the blood-stained earth, crime-empties, traces of dragging the abductees by the accused and even the pieces of the dead bodies which had been thrown into the canal---Accused were extended the benefit of doubt and ,acquitted in circumstances.

----Ss. 364/149 & 148---Appreciation of evidence---Interested witness, evaluation of---Principles---Statement of an interested witness can be considered to be a strong incriminating evidence against the accused, provided it is established that he had no motive or personal vengeance to involve the accused in the commission of the offence.

Inayat Ullah Khan Niazi, Advocate Supreme Court for Appellants.

Zafar Ullah Cheema, Advocate Supreme Court for the Complainant.

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

Date of hearing: 7th January, 2005.

SCMR 2008 SUPREME COURT 1047 #

2008 S C M R 1047

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Faqir Muhammad Khokhar, JJ

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, LAHORE---Petitioner

Versus

USMAN SHAUKAT ALI KHAN---Respondent

Civil Petition No.187-L of 2001, decided on 24th June, 2004.

(On appeal from judgment, dated 4-12-2002, of the Lahore High Court, Lahore passed in Civil Revision No.1817 of 1998)

(a) Punjab Board of Intermediate and Secondary Education Act (XIII of 1976)---

----Ss. 20, 29 & 31---Correction in date of birth of a student---Reason communicated to student by Board refusing such correction was different than the one sought to be proved in Court---Such inconsistent position taken by Board was unjustified.

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

---Art. 185---Appeal to Supreme Court---Findings of fact---Validity---Ordinarily, Supreme Court would not be expected to substitute its findings for those recorded by Courts of competent jurisdiction.

---Ss. 20, 29 & 31---Correction or change in date of birth of a student---Scope---Such power would be exercised by Court, Tribunal or other authority with great circumspection, utmost care and only in a very exceptional case.

Board of Intermediate and Secondary Education, Lahore and others v. Ch. Anjum Pervaiz and another 1989 CLC 64; Board of Intermediate and Secondary Education, Lahore through Secretary v. Mst. Sobia Chand 1999 CLC 1166 and Ijaz Mahmood v. Board of Intermediate and Secondary Education 86-Mozang Road, Lahore, through its Chairman 1999 CLC 984 ref.

Sh. Shahid Waheed, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 24th June, 2004.

SCMR 2008 SUPREME COURT 1049 #

2008 S C M R 1049

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Muhammad Akhtar Shabbir and Zia Perwez, JJ

SAHIB KHAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.216 of 2003, decided on 9th April, 2008.

(On appeal from the judgment, of the Lahore High Court, Rawalpindi Bench, dated 2-10-2001 passed in Criminal Appeal No. 161 of 1999).

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

----S. 302---Appreciation of evidence---Relationship of prosecution witnesses with deceased---Effect---Such relationship could not be a ground to discredit evidence of prosecution witnesses if same was proved to be straightforward, fair and confidence-inspiring.

Umerzad v. The State 1990 SCMR 571; Bashir Khan v. The State 1995 SCMR 900 and Nazir Ahmad v. Muhammad Siddique 1995 SCMR 1740 fol.

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

----S. 302---Criminal Procedure Code (V of 1898), S.340(2)---Appreciation of evidence--Plea of alibi and non-presence of accused in occurrence---Proof---No convincing evidence, either oral or documentary, was produced by defence to establish such plea, except bald statement of a defence witness---No responsible officer of company, where accused claimed to be on duty at relevant time, appeared to support such defence plea---Accused himself did not appear in his own defence under S.340(2), Cr.P.C.---Held, plea of non-participation or non-presence of accused was not proved in circumstances.

----Motive being a double-edged weapon can cut both sides.

M. Zaman Bhatti, Advocate Supreme Court for Appellant.

M. Ashraf Mahandra, D.P.G. for the State.

Date of hearing: 9th April, 2008.

SCMR 2008 SUPREME COURT 1054 #

2008 S C M R 1054

[Supreme Court of Pakistan]

Present: Javed Iqbal and Karamat Nazir Bhandari, JJ

MUHAMMAD DIN through L.Rs. and 16 others----Petitioners

Versus

ZULFIQAR and 2 others----Respondents

Civil Petition No.1463-L of 2003, decided on 12th June, 2003.

(On appeal from the judgment, dated 14-4-2003 of the Lahore High Court, Multan Bench passed in Civil Revision No.551-D of 1991).

Specific Relief Act (I of 1877)---

----S. 42---Islamic Law---Constitution of Pakistan (1973), Art. 185(3)---Suit for declaration---Succession---Respondents/Successors-in-interest of brother of original owner of property in question in their suit for declaration claimed that deceased original owner of property' in question was full owner and succession to her estate would be governed by Muslim Personal Law and they were owners to the extent of 8/24th shares in property of deceased original owner---Petitioners who were legal heirs of one of collaterals of husband of original owner contested suit on various grounds including limitation---Both Trial Court and Appellate Court below dismissed suit, but High Court set aside concurrent findings of Courts below and decreed the suit---High Court had correctly held that in circumstances of case, no limitation would run against co-owners---Both Trial Court as well as Appellate Court had erred in exercise of their jurisdiction while holding that suit was barred by time---High Court also had correctly held that original owner was full owner and that petitioner had not been able to establish alleged custom.

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 ref.

Tariq Zulfiqar Ahmed Chaudhry, Advocate Supreme Court and Walayat Umar Chaudhry, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 12th June, 2003.

SCMR 2008 SUPREME COURT 1056 #

2008 S C M R 1056

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Tassadduq Hussain Jillani, JJ

ABDUR REHMAN SHAH and another---Petitioners

Versus

RIAZ HUSSAIN SHAH---Respondent

Civil Petition No.1146-L of 2000, decided on 30th August, 2004.

(On appeal against the judgment, dated 3-4-2000 passed by the Lahore High Court, Multan Bench, Multan in R.S.A. No.10 of 1982).

Punjab Pre-emption Act (I of 1913)---

----Ss. 15 & 21---Qanun-e-Shahadat (10 of 1984), Art.133---Pre-emption suit---Superior right of pre-emption---Vendee claimed to be owner in the Estate on basis of gift deed executed in his favour before alleged sale--Proof---Gift deed was produced in evidence through donor---No question in respect of validity or otherwise of gift was put to donor during cross-examination---Held, gift was properly executed between vendee and donor---Pre-emptor had no preferential right qua vendee---Suit was dismissed in circumstances.

M. Ramzan Khalid Joyia, Advocate Supreme Court and Ozair Chughtai, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 30th August, 2004.

SCMR 2008 SUPREME COURT 1058 #

2008 S C M R 1058

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Syed Jamshed Ali JJ

TEHSIL MUNICIPAL ADMINISTRATION, RAHIMYAR KHAN and others----Petitioners

Versus

HANIF MASIH and others----Respondents

Civil. Petitions Nos.699/L to 705/L of 2006, decided on 25th January, 2007.

(Against the judgment/orders, dated 6-3-2006 of the Lahore High Court, Multan Bench, passed in Labour Appeals Nos.108, 109, 110, 111, 112, 113 and 114 of 2005 respectively).

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 48---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.1(b)---Constitution of Pakistan (1973), Art.212(3)---Permanent workman---Determination of---Labour Court held that respondents were permanent workmen and as such were entitled to benefits of a permanent and regular employee Said findings of the Labour Court were affirmed by the High Court---Counsel for the petitioners had admitted that respondents were performing their duties ever since their appointment in 1985 to the best of their ability and there was no complaint against them---When respondents were working for the last more than 20 years against the posts which, were permanent in nature, concurrent orders passed by the Labour Court and affirmed by the High Court were unexceptionable--No case for interference having been made out, petitions for leave to appeal were dismissed.

Secretary to Government of N.-W.F.P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan 1996 SCMR 413 and Muhammad Shoaib and 2 others v. Government of N.-W.11:P. through the Collector, D.I. Khan and others 2005 SCMR 85 rel.

Ch. M. Ashraf Mohandra, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

SCMR 2008 SUPREME COURT 1060 #

2008 SCMR 1060

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Actg. C.J. Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

Mst. HAWA and others----Petitioners

Versus

GHULAM MUHAMMAD and others----Respondents

Civil Petition No.2275-L of 2004, decided on 25th January, 2005.

(On appeal from the judgment, dated 28-4-2004 of the Lahore High Court, Multan Bench, passed in Writ Petition No.867 of 1996).

West Pakistan Redemption and Restitution of Mortgaged Land Act (XIX of 1964)---

----S. 5---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to examine, inter alia, as to whether Collector under West Pakistan Redemption and Restitution of Mortgaged Land Act, 1964, was empowered to deal with the matter of redemption of evacuee property and whether High Court in view of the facts and circumstances of case had correctly applied the principles laid down by Supreme Court' in respect of running out of period of limitation for redemptions of evacuee property in the case reported as PLD 1986 SC 35.

Samar Gul v. Central Government and others PLD 1986 SC 35 ref.

Ch. Muhammad Afzal Wahla, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 25th- January, 2005.

SCMR 2008 SUPREME COURT 1062 #

2008 S C M R 1062

[Supreme Court of Pakistan]

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

FAQIR SAIN alias Muhammad Sain and another---Petitioners

Versus

AHMAD DIN and others---Respondents

Civil Petition No.3871-L of 2001 decided on 29th June, 2004.

(On appeal from the judgment; dated 7-11-2001 of the Lahore High Court, Lahore, passed in Civil Revision No.2118 of 1994)

Specific Relief Act (I of 1877)---

----S. 42---Transfer of Property Act (IV of 1882); S.54---Registration Act (XVI of 1908), Ss.17 & 60---Constitution of Pakistan (1973), Art.185(3)---Suit for declaration---Plaintiff challenged validity of registered sale-deed allegedly executed by his deceased brother in favour of defendant (his nephew)---Proof---Defendant did not' produce in evidence "GM", who was shown on sale-deed as attesting witness and through whom its stamp paper was purchased---No independent witness knowing deceased vendor personally had identified him before Sub-Registrar---Defendant's witness, who identified deceased vendor, stated that he had identified him on asking of "GM" (not produced in evidence)---Stamp paper was not purchased by either party---Sale-deed was got executed and registered at District Headquarter and not at Tehsil Headquarter, where land was situated---Suit was decreed in circumstances.

C.M. Latif Rawan, Senior Advocate Supreme Court and Muhammad Aslam Ch. Advocate-on-Record for Petitioners.

Taqi Ahmed Khan, Advocate Supreme Court for Respondents.

Date of hearing: 29th June, 2004.

SCMR 2008 SUPREME COURT 1064 #

2008 S C M R 1064

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J., Ch. Ejaz Yousaf and Muhammad Farrukh Mahmud, JJ

GHULAM AKBAR and another----Petitioners

Versus

THE STATE----Respondent

Criminal Appeal No.406 of 2007, decided on 9th April, 2008.

(On appeal from the judgment, dated 17-3-2006 of the High Court of Sindh, Karachi passed in Special Anti-Terrorism Appeal No.57 of 2001 and Confirmation Case No.8 of 2001).

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

----S. 302---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Recovery of stolen motorcycle at joint pointing of two accused from sugar-cane field belonging to third person---Evidentiary value---Such field was an open place, thus, stolen motorcycle could not be said to have been recovered from accused---Recovery at joint pointing of two accused would have no evidentiary value.

Abdul Ghani and 3 others v. The State 1976 PCr.LJ 1462; Nazeer and 2 others v. The State PLD 1989 Kar. 466; Das Ram Gehla Ram v. Emperor 43 Cr.LJ 1942 (268); Muhammad Ayub and others v. The State 1974 PCr.LJ 501 and State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408 rel.

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

----S. 302/34---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Crime weapon, recovery of---Recovery witness was not resident of locality, but was a chance witness---Place of recovery was surrounded by 50/60 houses, but none was summoned from locality by police.--Such recovery evidence was not worthy of any credence and could not be used against accused in circumstances.

----S. 302/34---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Pistol and empty bullet, recovery of---Empty bullet, after three months of its recovery and pistol after more than two months of its recovery were received together by Forensic Science Laboratory---Such long delay not explained by prosecution---Validity---Law required that empty recovered from spot should be sent to Laboratory without any delay---Such recovery evidence was not free from doubt and could not be used against accused.

Jehangir v. Nazar Farid and another 2002 SCMR 1986; Muhammad Younis Khan v. The State 1992 SCMR 545 and Atta Ullah and others v. The State PLD 1990 Pesh. 10 rel.

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

----S. 302---Appreciation of evidence---Burden of proof---Burden of proving case beyond doubt against accused would squarely lie upon prosecution and would not shift to accused---Presumption and probabilities, however strong may be, could not take place of proof.

Muhammad Luqman v. The State PLD 1970 SC 10 rel.

Sardar M. Latif Khan Khosa, Senior Advocate Supreme Court, M. Zaman Bhatti, Advocate Supreme Court and Ch. Akhtar Ali Advocate-on-Record for Appellants.

M. Qasim Mirjat, A.A.-G. for the State.

SCMR 2008 SUPREME COURT 1074 #

2008 S C M R 1074

[Supreme Court of Pakistan]

Present: Falak Sher, Mian Shakirullah Jan and Tassaduq Hussain Jillani, JJ

NAZIR AHMED----Petitioner

Versus

MUHAMMAD ZUBAIR and others----Respondents

Criminal Petition No.713-L of 2002, decided on 20th June, 2005.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 1-8-2002 passed in Criminal Appeal No.795 of 1999 and Criminal Revision No.119 of 1994).

Penal Code (XLV of 1860)---

----S. 302/34---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---Leave to appeal was granted by Supreme Court to the complainant against the accused as the matter warranted reappraisal of entire evidence for safe administration of justice.

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

Muhammad Sharif Butt, Advocate Supreme Court for Respondents Nos.1-3.

Date of hearing: 20th June, 2005.

SCMR 2008 SUPREME COURT 1075 #

2008 S C M R 1075

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Falak Sher, JJ

MUHAMMAD ASLAM---Petitioner

Versus

MUHAMMAD NAZIR KHAN---Respondent

Civil Petition No.2358-L of 2004, decided on 27th July, 2004.

(On appeal from the judgment/order, dated 8-7-2004 passed by Lahore High Court, Lahore in C.R. No.726 of 1992).

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

----S. 8---Constitution of Pakistan (1973), Art.185(3)---Suit for possession---Identification/demarcation of two houses---Defendant purchased House No.2501 through registered sale-deed---Plaintiff purchased House No.2502 in open auction through Permanent Transfer Order---Plaintiff's claim was that defendant was in possession of House No.2502, which was being treated by him as house bearing No.2501---Trial Court dismissed suit, but Appellate Court decreed same---High Court dismissed revision filed by defendant---Validity---As valuable rights of parties were involved, revision might not have been dismissed solely on the ground that findings of fact of one of the Courts below existed in favour of plaintiff---Document of title possessed by parties contained different descriptions---Controversy involved could be resolved by examining old Revenue Record---Supreme Court accepted appeal and remanded case to Trial Court with direction to summon old Revenue Record pertaining to underneath land of both houses including "Shajra Khistwar", "Massavi", "Register Haqdaran-e-Zamin" to ascertain their exact location and then appoint a Revenue Officer as Local Commissioner with direction to him to visit the site in presence of the parties or their representatives and identify/demarcate both houses in view of such documents and submit report, and then to dispose of matter within specified time.

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

----S. 115---Revision---Dismissal of revision solely on the ground that findings of fact of one of the Courts below existed in favour of respondent---Validity---Dismissal of revision on such ground was not proper as valuable rights of parties were involved in the case.

Muhammad Arif Raja, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Petitioner.

Ch. Khurshid Ahmed, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Respondent.

Date of hearing: 27th July, 2004.

SCMR 2008 SUPREME COURT 1078 #

2008 S C M R 1078

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad and Syed Sakhi Hussain Bokhari, JJ

MUHAMMAD NISAR GUL KHAN----Appellant

Versus

DISTRICT COORDINATION OFFICER and others----Respondents

Civil Appeal No.230 of 2006, decided on 25th April, 2008.

(On appeal from the judgment, dated 16-6-2005 passed by the Lahore High Court, Lahore in Writ Petition No.8010 of 1994).

Civil Servants Act (LXXI of 1973)---

----S. 13---Constitution of Pakistan (1973), Art.185---Premature retirement---Application for premature retirement/L.P.R. submitted by the appellant was accepted, however, later on appellant filed application for withdrawal of demand for L.P.R., but order of retirement was not set aside by competent Authority---Validity---Retirement order passed at the request of appellant had attained finality and became a past and closed transaction and no justification was available for withdrawal of order of L.P.R.---Impugned order was just and proper and was well-reasoned---No illegality or infirmity was pointed out in impugned judgment so as to warrant interference by the Supreme Court---Appeal was dismissed by Supreme Court.

Parvez Inayat Malik, Advocate Supreme Court for Appellant.

Ms. Afshan Ghazanfar, A.A.-G., Shakir Sindhu, D.D.O. (Registration), Narowal and Bashir Ahmad, P.S.O. to District Naib Nazim for Respondents.

Date of hearing: 10th April, 2008.

SCMR 2008 SUPREME COURT 1080 #

2008 S C M R 1080

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Actg. C.J. Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

REHMAT ALI----Petitioner

Versus

SHAUKAT ALI and others----Respondents

Civil Petitions Nos.375-L and 376-L of 2002, decided on 25th January, 2005.

(On appeal from order, dated 15-11-2001 of the Lahore High Court, Bahawalpur Bench, passed in Civil Revisions Nos.567 and 568-D of 2001).

Constitution of Pakistan (1973)---

----Art. 185(3)---Petition for leave to appeal---Relief had been given cu respondents in view of statement made by their late Advocate and it was stated that evidence furnished by him being not admissible under law, High Court could have taken into consideration other evidence/material while disposing of civil revisions---Besides evidence of said late Advocate, other evidence was also available on record---Case was remanded to High Court by the Supreme Court for fresh decision of revisions taking into consideration as to whether evidence furnished by late Advocate of respondents was admissible under law or not---Impugned judgment was set aside and petitions were converted into appeal and disposed of accordingly.

Mian Allah Nawaz, Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-Record for Petitioner.

Muhammad Iqbal, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Respondents.

Date of hearing: 25th January, 2005.

SCMR 2008 SUPREME COURT 1082 #

2008 SCMR 1082

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

MUHAMMAD YAQOOB----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.83 of 2006, decided on 20th March, 2008.

(On appeal from the judgment, dated 16-9-2004 passed by Lahore High Court, in Criminal Appeal No.301-J of 2003, and Murder Reference No.23-T of 2003).

Penal Code (XLV of 1860)---

----S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S.7(1)(a)---Constitution of Pakistan (1973) Art.185---Reappraisal of evidence---Sentence, reduction in---Mitigating circumstances---Fatal shot---Determination---Evidence of police officials---Accused was convicted by Trial Court and sentenced to death which was confirmed by High Court---Validity---Mere fact that prosecution witnesses were police officials by itself could not be considered to be a good ground to disbelieve their evidence---Accused failed to refer to any piece of evidence which if considered could persuade to interfere with concurrent findings of guilt recorded by two Courts below---Evidence was minutely reappraised by High Court which upheld conviction of accused---Medical evidence was also in complete harmony with deposition of eye-witnesses and suggested that the death of deceased was caused as a result of fire arm injuries---Recoveries made during investigation were rightly discarded by the courts below---Evidence on record failed to make certain that it was the shot of accused which resulted in death of deceased, and such factor had constituted a mitigating circumstance justifying lesser punishment---Supreme Court, while maintaining conviction, reduced sentence of death to imprisonment for life---Appeal was partly allowed.

Allah Dad and another v. The State 1995 SCMR 142 and Saee and others v. The State 1984 SCMR 1069 rel.

Muhammad Javed Aziz Sindhu, Advocate Supreme Court for Appellant.

M. Siddique Khan Baloch, Deputy Prosecutor-General for the State.

Date of hearing: 20th March, 2008.

SCMR 2008 SUPREME COURT 1086 #

2008 SCMR 1086

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Muhammad Akhtar Shabbir and Zia Perwez, JJ

FARYAD ALI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.449 of 2007, decided on 9th April, 2008.

(On appeal from the judgment of the Lahore High Court, Lahore dated 5-12-2006 passed in Criminal Appeal No.1530 of 2001 and Murder Reference No.657 of 2001).

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

---Ss. 302(b)/34 & 324---Reappraisal of evidence---Medical evidence,--Scope---Type of weapon---Medical evidence or expert's opinion has always been treated to be confirmatory in nature---Medical evidence cannot establish presence of accused in the occurrence and weapon of offence used or injury caused to deceased by him---Opinion as to injury sustained by injured or deceased was caused by which weapon, it is the medical expert who can opine that a specific injury was inflicted by which kind of weapon.

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

----Ss. 302(b)/34 & 324---Reappraisal of evidence---Ocular and medical account---Conflict---When there is conflict between ocular account and medical evidence, if ocular account is straight, fair and confidence inspiring, the weight has to be given to ocular account and it could prevail---Not sufficient to suggest non-presence of eye-witnesses at spot but conflict of medical evidence and ocular account in respect of number and nature of injuries can be relevant to ascertain role of an individual accused in the occurrence.

---Ss. 302(b)/34 & 324---Reappraisal of evidence---Benefit of doubt--Scope---Accused is the most favourite child of law and every benefit of doubt goes to him regardless of fact whether he has taken any such plea or not.

Fazal Din and others v. Rahmat and others 1968 SCMR 18 and Muhammad Nawaz and others v. The State and others PLD 2005 SC 40 rel.

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

---Ss. 302(b)/34 & 324---Constitution of Pakistan (1973), Art.185---Reappraisal of evidence---Common intention---Determining factors---Sentence of death awarded to accused by Trial Court was converted by High Court into imprisonment for life---Validity---Common intention of accused persons for committing murder was a question of fact which could be ascertained on the basis of acts and conduct of accused, ferocity of attack, weapon used, number of blows coupled with element of pre-concert of mind---Accused had caused injuries to prosecution witnesses with blunt weapon and as per medical evidence, no such injury had been sustained by deceased at the hands of accused which was proof of the fact that despite participating in the occurrence, accused had no intention to kill any member of complainant party---Supreme Court set aside conviction and sentence awarded to accused under S.302(b), P.P.C. for committing Qatl-i-Amd, whereas conviction and sentence awarded to him under S.324, P.P.C. for launching murderous assault on prosecution witnesses was maintained---Appeal was partly allowed.

Zahid Imran and others v. The State and others PLD 2006 SC 109 rel.

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

----Ss. 302(b)/34 & 324---Reappraisal of evidence---Medical jurisprudence---Exhumation---Limitation---Medical jurisprudence has not provided any time limit for exhumation/ disinterment of dead body in India and England, while in France period is limited to 10 years and 30 years in Germany.

Modi's Medical Jurisprudence and Toxicology rel.

F.K. Butt, Advocate Supreme Court for Appellant.

M. Siddique Khan Baloch, D.P.-G. and Ch. Akhtar Ali, Advocate-on-Record for the State.

Ch. Naseer Ahmad Sindhu, Advocate Supreme Court for the Complainant.

Date of hearing: 27th March, 2008.

SCMR 2008 SUPREME COURT 1093 #

2008 S C M R 1093

[Supreme Court of Pakistan]

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

COLLECTOR OF SALES TAX, LAHORE and others----Petitioners

Versus

HASEEB WAQAS SUGAR MILLS PVT. LTD. and others----Respondents

C.P. No.2689-L of 2002, decided on 7th July, 2005.

(On appeal from the judgment of the Lahore High Court, dated 26-6-2002 passed in Writ Petition No.4303 of 2002).

Sales Tax Act (VII of 1990)---

----Ss. 7 & 130---Constitution of Pakistan (1973), Art. 185(3)---Determination of tax liability---Counsel for parties had stated that High Court vide judgment passed in appeals to examine the identifiable issue having remanded a number of cases to concerned Collector of Sales Tax, setting aside impugned judgment, same order be passed in the petition for leave to appeal---In view of earlier decision of High Court, petition for leave to appeal was converted into appeal and allowed---Impugned order was set aside and case was remanded to the Collector of Sales Tax for disposed.

A. Karim Malik, Sr. Advocate Supreme Court, Aslam Chaudhry, Advocate-on-Record

and Mumtaz Ahmad, Member (Legal) C.B.R. for Petitioner.

Shahid Karim, Advocate Supreme Court and Mehmud-ul-Islam, Advocate-on-Record for Respondents.

SCMR 2008 SUPREME COURT 1095 #

2008 S C M R 1095

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad, Mian Hamid Farooq and Sheikh Hakim Ali, JJ

MUHAMMAD ISHFAQUE through L.Rs.---Appellants

Versus

Ch. MUHAMMAD NAWAZ and others----Respondents

Civil Appeals Nos.649 and 650 of 2003, decided on 7th May, 2008.

(On appeal from the judgment, dated 1-10-2002 passed by the Lahore High Court, Lahore in Civil Revision No.26 of 1995 and Civil Revision No.27 of 1995).

(a) Specific Relief Act (I of 1877)

----Ss. 42 & 54---Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Ss.3,22,25, Sched, Para.III(13) & (14)---Pakistan (Administration of Evacuee Property) Act (XII of 1957), Ss.2(3), 3(2), 7 to 10, 22 & 41---Pakistan Rehabilitation Act (XLII of 1956), S.2(4)---Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975), Ss.2(2)---Civil Procedure Code (V of 1908), O.VI, Rr. 2 & 10---Limitation Act (IX of 1908), Art.120---Suit for declaration and injunction---Evacuee urban plot (building site)---Issuance of P.T.O. and P.T.D. by Settlement Department in favour of defendant's predecessor after purchasing suit plot through public auction---Fact of defendant being in possession of suit plot since its purchase from his predecessor confirmed by consent decree---Plaintiff claimed to be owner of suit plot alleging same to be Muslim owned property belonging to his predecessor---Filing of suit by plaintiff after 19 year from consent decree and 24 years from date of P.T.O. without praying for possession of suit plot and challenging consent decree, auction of suit plot and issuance of P.T.O./P.T.D. in favour of defendant's predecessor---Validity---Plaintiff in his pleadings had not challenged with clear and specific objections treatment of suit plot by Settlement Department as evacuee property and its auction and allotment in favour of defendant's predecessor---Documents produced in evidence by defendant showing auction of suit plot as evacuee property, payment of its price by his predecessor through compensation book and passing of consent decree confirming its sale in his favour by his predecessor were neither objected to by plaintiff nor had he prayed for declaring same to be null and void---Plaintiff had not clearly shown in his pleadings how the fraud was committed or how such documents were fake or fraudulent---Documentary evidence produced by defendant consisting of official record of Settlement Department and Civil Court during the period expanding from year 1961 to 1972, could not be shown to be based on fraud or fake in nature---Plaintiff and/or his predecessor had not got declaration from Custodian of Evacuee Property that suit plot was Muslim owned and not an evacuee property---Treatment of suit plot as an evacuee property before year 1961 and even thereafter before repeal of Evacuee Laws had sealed fate of plaintiff due to bar contained in Ss.22 & 25 of Displaced Persons (Compensation and Rehabilitation) Act, 1958---Plaintiff's suit against treatment of suit plot as an evacuee property was clearly time barred---Treatment of suit plot as an evacuee property by Settlement Department could not be declared as void or without jurisdiction without laying down foundation therefore in pleadings-Plaintiff's failure to challenge such P.T.O./P.T.D. and consent decree would prove his case to be false, thus, he was not entitled to discretionary relief of declaration---Evidence on record proved defendant's possession over suit plot, thus, plaintiff's suit without claiming its possession was not competent---Permanent Settlement Record of rights for relevant period and in subsequent period in Column No.3 thereof contained an entry of "Malekan Qaabza Ba Hissa Braber" against the names of plaintiff's predecessor and another person, which could not confer upon them right of absolute ownership with regard to suit plot---Plaintiff or his predecessor had not got himself absolute owner of suit plot from of Custodian Evacuee Property---Plaintiff's suit was dismissed in circumstances.?

Muhammad Ismail v. Abdul Haq and others 2001 SCMR 1350; Lala and another v. Mst. Jantel968 SCMR 131; Shamshad and others v. Muhammad Shah and others 1984 SCMR 912 and Ali Akbar and others v. Malook and others ref.

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

----O. VI, Rr.2 & 10---Plaint---Document alleged to be fake or fraudulent or obtained through fraud---Raising of vague, ambiguous and generalized pleas---Validity---Duty of plaintiff was to state clearly material facts into pleadings showing how alleged fraud was committed or how such document was fake or fraudulent---Vague, ambiguous and generalized pleas could not fulfil requirements of O.V, Rr.2 & 10, C.P.C.?

Gulzarin Kiani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.

Khawaja Muhammad Farooq, Advocate Supreme Court for Respondents Nos. 1 to 3 and 5 to 6 (in Civil Appeal No.650 of 2003).

Respondent No.4 ex parte (in Civil Appeal No.649 of 2003).

Mumtaz Hussain, Naib Tehsildar, Chakwal for Respondent No.7 (in Civil Appeal No.649 of 2003).

Date of hearing: 21st April, 2008.

SCMR 2008 SUPREME COURT 1103 #

2008 S C M R 1103

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan, Mian Hamid Farooq and Syed Zawwar Hussain Jaffery, JJ

ALTAF HUSSAIN----Petitioner

Versus

FAKHAR HUSSAIN and another----Respondents

Criminal Petition No.50 of 2008, decided on 8th April, 2008.

(Against the order, dated 25-2-2008 of the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeal No.169 of 2004).

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

----S. 302---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---Concurrent findings of facts by the courts below---Last seen and circumstantial evidence---Acquittal of accused by Trial Court was maintained by High Court---Plea raised by complainant was that deceased was last seen alive in the company of accused---Validity---Last seen evidence was the weakest type of evidence unless corroborated with some other piece of evidence which was conspicuously missing---Such piece of evidence had been rightly disbelieved by Trial Court as well as by High Court---Circumstantial evidence did not lead to the conclusion in any manner that accused had any hand in the affair and caused murder in question---When accused person was acquitted from the charge by court of competent jurisdiction then presumption of double innocence was attached to accused in which superior courts would not interfere unless the order was arbitrary, capricious, fanciful and against record--Supreme Court declined to interfere with the judgment of acquittal passed by High Court and Trial Court---Leave to appeal was refused.

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

----S. 302---Reappraisal of evidence---Evidence, chain of---Principles---All pieces of evidence should be so linked that it should give picture of complete chain, one corner of which should touch neck of deceased and the other corner to neck of accused---Failure of one link destroys entire chain.

----S. 302---Reappraisal of evidence---Medical evidence---Scope---Medical evidence may confirm ocular evidence with regard to seat of injury, nature of injury, kind of weapon used in occurrence but it cannot connect accused which commission of crime.

Malik Shahzad Ahmed Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 8th April, 2008.

SCMR 2008 SUPREME COURT 1106 #

2008 S C M R 1106

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

MUHAMMAD LATIF alias TIFA----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.242 of 2005, decided on 13th March, 2008.

(On appeal from the judgment, dated 22-5-2003 in Criminal Appeal No.981 of 1999 and Murder Reference No.420 of 1999 passed by the Lahore High Court, Lahore).

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

----S. 302(b)---Reappraisal of evidence---Sentence, reduction in---Mitigating circumstances---Cross fire---Abscondence---Phenomenon of substitution---Accused having remained absconder for 4 'h years was arrested and after trial convicted and sentenced to death by Trial Court, which was confirmed by High Court---Plea raised by accused was that eye-witnesses had substituted real culprit with accused, just to take revenge---Validity---Testimony of eye-witnesses could not be doubted because they being close relatives of deceased would not like to let go the real offender and substitute him with accused just to take revenge---Presence of witnesses at place of occurrence was also natural and evidence of both the eye-witnesses was corroborated by medical evidence in all material particulars---F.I.R. was promptly lodged, wherein not only names of accused persons were given but specific roles were also attributed to each of them---Incident was a broad day light murder and accused persons were previously known to both the eye-witnesses hence, possibility of mistaken identity had to be ruled out---Accused, after the occurrence remained at large for about 4½ years and his abscondence was taken as incriminating piece of evidence---No empty was recovered from place of occurrence and investigation officer at the trial opined that it was case of cross fire, therefore, Supreme Court converted death penalty into imprisonment for life.

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

----S. 302---Reappraisal of evidence---Motive not proved---Not a mitigating circumstance---Scope---Motive, proved or otherwise is immaterial in presence of ocular evidence---Murder may be committed even for no motive or on a minor pretext---What to speak of proving motive, in certain cases -where motive was shrouded in mystery or was not alleged, conviction was maintained and absence of motive was not taken even as a mitigating circumstance.

Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellant.

Ch. Munir Sadiq, D.P.-G., Punjab for the State.

Date of hearing: 13th March, 2008.

SCMR 2008 SUPREME COURT 1111 #

2008 S C M R 1111

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari and Syed Sakhi Hussain Bokhari, JJ

SAKINA BIBI----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.15 of 2008, decided on 11th April, 2008.

(On appeal against the order, dated 4-10-2007 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Miscellaneous No.865/B of 2007).

Criminal Procedure Code (V of 1898) ---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Constitution of Pakistan (1973) Art.185(3)---Bail, grant of---Case of further inquiry---Female accused---Search warrants, absence of---Accused was arrested from house during raid and 13 kilograms of Charas was recovered---Through plea of violating mandatory provisions relating to search warrants was raised on behalf of accused before High Court but High Court did not dilate upon the same---Validity---Prosecution had to prove the conscious and exclusive possession of accused and the quantity of contraband material recovered therefrom---Case of accused called for further inquiry thus entitling her to concession of bail---Supreme Court converted petition for leave to appeal into appeal and bail was granted.

The State through Deputy Director, Anti-Narcotics Force, Karachi v. Mobin Khan 2000 SCMR 299; Muhammad Afzal Darzi v. State 2000 SCMR 1837; Muhammad Gul v. The State 2001 SCMR 71; Ghulam Raza v. Khuda Bux and another 2005 SCMR 1904; Sh. Muhammad Tasleem v. The State 2006 SCMR 468 and The State through Force Commander, Anti-Narcotics Force, Rawalpindi v. Khalid Sharif 2006 SCMR 1265 distinguished.

Criminal Appeal No.313 of 2006 rel.

Syed Zulfiqar Abbas Naqvi, Advocate Supreme Court for Petitioner.

Sh. Riaz-ul-Haq, Advocate Supreme Court/Special Prosecutor, Anti-Narcotics Force along with Tanvir-ul-Hanif, Inspector, A.N.F. for the State.

SCMR 2008 SUPREME COURT 1115 #

2008 S C M R 1115

[Supreme Court of Pakistan]

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

Mst FATIMA BIBI and others---Petitioners

Versus

ALTAF AHMED and others---Respondents

Civil Petition No.2431-L of 2001, heard on 20th July, 2004.

(On appeal against the judgment, dated 29-5-2001 passed by Lahore High Court, Lahore in Civil Revision No.1061 of 1984).

Specific Relief Act (I of 1877)---

----S. 42---Limitation Act (IX of 1908), S.120---Constitution of Pakistan (1973), Art.185(3)---Suit for declaration---Limitation---Decree regarding gift passed in favour of donee (son) during lifetime of donor (father)---Plaintiff (daughter) challenged such decree claiming to be owner in possession 'of suit land---Cause of action in plaint was asserted to have arisen on 25-3-1973 (i.e. date of impugned decree) and date of death of donor was mentioned as 18-6-1976---Suit was filed on 6-10-1976---Courts below decreed suit, but High Court in revision non-suited plaintiff on ground of limitation---Validity---Such facts stated in plaint revealed that plaintiff had no knowledge during life time of donor about passing of such decree and no sooner he died, plaintiff filed suit for redressal of her grievance---Supreme Court granted leave to appeal to consider as to whether plaintiff had rightly been non-suited by High Court without taking into consideration attending circumstances of case.

Ch. Muhammad Ashraf, Advocate Supreme Court and M. Ozair Chughtai, Advocate-on-Record for Petitioners.

Ahmed Waheed Khan, Advocate Supreme Court and Mian Attaur-Rehman, Advocate-on-Record for Respondents.

Date of hearing: 20th July, 2004.

SCMR 2008 SUPREME COURT 1118 #

2008 S C M R 1118

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi, Muhammad Qaim Jan Khan and Muhammad Moosa K. Leghari, JJ

THE STATE and others----Petitioners

Versus

M. IDREES GHAURI and others----Respondents

Criminal Appeals Nos.438 to 442 of 2003, decided on 28th January, 2008.

(On appeal from the judgment, dated 9th January, 2002 passed by the Lahore High Court, Lahore, in Criminal Appeals Nos.1913, 1914 and 1915 of 2000).

(a) National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(vi)---Constitution of Pakistan (1973), Art. 185 (3)---Leave to appeal was granted by Supreme Court as questions raised by both the parties required reappraisal of entire evidence.

(b) National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(vi)---Corruption and corrupt practices---Misuse of authority---Illegal gain, absence of---Effect---Act of grant of proprietary rights of land without having power of Collector by itself and without proof of essential ingredients of illegal gain and undue favour would not constitute an offence of corruption and corrupt .practices within the meaning of S.9(a)(vi) of National Accountability Ordinance, 1999.

----Essential ingredients---Actus rea and mens rea---Scope---Concept of criminal administration of justice is based on assumption that criminal act is injurious not just to an individual but to society as a whole---Violation of criminal law which is built upon constitutional principles of substantial as well as procedural law, has consequence of punishment---Prosecution in the light of constitutional principle is under heavy duty to establish violation of criminal law to award punishment---Striding of law to bring action within its compass is in conflict with the concept of fair treatment---It is primary duty of the court to ascertain whether alleged offence was outcome of an act which was in violation of some law which can be termed as actus rea of the crime (guilty act) and if this essential element of crime is missing, the breach may not be subject to sanction of criminal law---Person who is blamed to have committed an offence if is not accountable in criminal law for his action, he cannot be subjected to prosecution---Mens rea (guilty mind) is another essential component of crime without proof of which a person cannot be held guilty of an offence and similarly without proof of concurrence to commit crime, offence is not complete---In addition to such basic components of crime, harm caused in consequence to an act is also considered essential element of crime because act, if is harmless, it may not constitute a crime.

(d) National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(vi)---Corruption and corrupt practices---Misuse of authority--Object and scope---Prosecution, duty of---Misuse of authority in general, .means wrong and improper exercise of authority for the purpose not intended by law---In order to prove charge of misuse of authority, at least two basic ingredients i.e. mens rea and actus rea of crime have to be necessarily established and in case any one of them is found missing, offence is not made out---Mens rea in context to misuse of authority means to act in disregard of law with conscious knowledge that act was being done without authority of law and except in case of strict liability, element of mens rea is necessary constituent of crime---Offence of corruption and corrupt practices within the meaning of section 9 (a)(vi) of National Accountability Ordinance, 1999, is not an offence of strict liability, therefore, use of. authority without object of illegal gain or pecuniary benefit or undue favour to any other person with some ulterior motive, may not be a deliberate act to constitute an offence---Mens rea for an offence under S. 9(a)(vi) of National Accountability Ordinance, 1999, is found in two elements i.e. conscious misuse of authority and illegal gain or undue benefit---In absence of any one of such basic components of crime, misuse of authority is not culpable---Prosecution must establish mens rea and actus reus of crime to establish charge---Without proof of such elements of crime, mere misuse of authority has no penal consequence.

(e) National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)-Expression "corruption and corrupt practices"---Meaning---Corruption is an act which is done with intent to give some advantage inconsistent with law and wrongful or unlawful use of official position to procure some benefit or personal gain---Expression corrupt practices is series of depraved/debased/morally degenerated acts.

(f) National Accountability Ordinance (XVIII of 1999)---

---Ss. 9(a)(vi) & 14(d)---Misuse of authority---Shifting of onus to accused---Principle--Unless prosecution successfully discharges initial burden of proving allegation in a reasonable manner, accused cannot be called to disprove charge by raising presumption of guilt.

(g) National Accountability Ordinance (XVIII of 1999)---

----S.9(a)(vi)---Misuse of authority---Illegal gain/undue benefit---Proof---No direct or circumstantial evidence was brought on record to suggest that accused exercised his power for consideration of illegal gain or undue benefit for himself or for any other person---Effect---Such case would not fulfil test of S.9(a)(vi) of National Accountability Ordinance, 1999, to justify criminal prosecution.

(h) National Accountability Ordinance (XVIII of 1999)---

----S. 14(d)---Assets disproportionate to known sources of accused---Presumption---Prosecution of a person without distinction of criminal and civil liability in transaction is misuse of process of law and similarly stretching law in favour of prosecution is unjust and unfair---Courts, without ascertaining true character of transaction and drawing distinction in civil and criminal liability, must not proceed to raise presumption of guilt in terms of S.14 (d) of National Accountability Ordinance, 1999.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 rel.

(i) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(vi) & 10---Reappraisal of evidence---Misuse of authority---Illegal gain or pecuniary advantage---Proof---Accused without having powers of Collector, exercised the same and allotted State land to affectees of a Park---Powers of Collector had been notified in favour of accused subsequently---Accused was tried for committing offence of misuse of authority---Trial Court as well as High Court convicted and sentenced accused for committing offence under S. 9 (a) (vi) of National Accountability Ordinance, 1999---Validity---Without any evidence of obtaining any illegal gain or pecuniary advantage for himself or for any other person by dishonest and illegal means, was the result of misconception of law---No basic elements of an offence of corruption and corrupt practices was found in transaction in question within the meaning of S.9(a)(vi) of National Accountability Ordinance, 1999---Conviction and sentence awarded to accused was set aside and he was acquitted of the charge---Appeal was allowed.

(j) Islamic jurisprudence---

----Right to honour---Scope---Right to honour in Islam has been declared a sacred right---Not only violation of such right is punishable and to be compensated but violation is also to be prevented---On one hand protection is to be provided to victim and on the other hand, one who violates such right is made accountable---In criminal administration of justice, this is common principle that in case of liability with penal or quasi penal consequences, oppressive use of law in respect of honour and reputation of a person is not justified and denial of safeguard of just and fair treatment must be prevented in larger interest of justice which is the most fundamental of all rights in Islam and cannot be abridged by any limitation.

(k) National Accountability Ordinance (XVIII of 1999)---

----Preamble---Special law-Scope-Duty of Courts---Protection provided to NAB authorities---Extent---National Accountability Ordinance, 1999, is a special law and use of same in oppressive manner must be tested on the touchstone of fundamental right of a person as guaranteed under the Constitution---Misuse of raw cannot be overlooked or ignored by courts being custodian of the Constitution---Courts are under legal duty to defend, preserve and enforce rights of people and their constitutional guarantees---Notwithstanding protection provided to NAB authorities under the law in respect of their functions, use of power by them in an unbridled manner for prosecution of innocent persons in disregard to their constitutional guarantees, rights, liabilities and duties must not be allowed and courts must prevent such oppressive use of penal law through judicial determination.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 rel.

(l) Criminal trial---

----Act done in good faith---Penal consequences---Scope---Act done in good faith, which is not in violation of criminal law and also is not result of criminal motivation, has no penal consequence---If a person is prosecuted for such an act, there is no repair to the loss caused to him in his body and mind.

(m) Jurisprudence---

----Criminal act---Connotation---Violation of criminal law with consequences of some penalty and an action as a result of criminal motivation is called criminal act---Wrong exercise of power or, an act without lawful authority which is not result of any bad motivation is not an act actionable in criminal or administrative law.

Mian M. Ilyas, D.F.G. for the State (in Criminal Appeals Nos.438, 439 and 140 of 2003).

Sardar Muhammad Ishaq Klian, Senior Advocate Supreme Court for Respondent (in Criminal Appeals Nos.438, 439, 440 of 2003).

Sardar Muhammad Ishaq Senior Advocate Supreme Court for Appellant (in Criminal Appeals Nos.441 and 442 of 2003).

Mian M. Ilyas, D.P.G. for the State (in Criminal Appeals Nos.441 and 442 of 2003).

Date of hearing: 28th January, 2008.

SCMR 2008 SUPREME COURT 1135 #

2008 S C M R 1135

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

ANWARUL HAQ QURESHI----Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU and another----Respondents

Civil Petition No.28 of 2008, decided on 5th March, 2008.

(On appeal from the judgment dated 20-11-2007 of the Lahore High Court, Rawalpindi Bench passed in Writ Petition No.962 of 2007).

(a) National Accountability Ordinance (XVIII of 1999)---

----S. 24(d)---Remand---Extension---Principles---No person can be detained for the purpose of investigation/inquiry for a period exceeding ninety days and for every remand, reasons have to be recorded.

(b) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a), 24(d) & Sched.---Constitution of Pakistan (1973), Art.10---Bail, grant of---Delay in trial---Accused was arrested on 20-11-2006 and reference was filed in Court on 4-6-2007---Accused sought bail on the ground of delay in conclusion of trial---Validity---Conveyance of grounds and substance on the basis of which accused was arrested, was the first essential 'ingredient of S.24 (d) of National Accountability Ordinance, 1999, as such the provisions of law was mandatory in nature and had to be complied with in letter and spirit as the same was based on constitutionally guaranteed right providing safeguards as to arrest and detention of a person embodied in Art.10 of the Constitution---Noncompliance of such provision of the Constitution and National Accountability Ordinance, 1999, would render arrest and detention illegal---Supreme Court converted petition for leave to appeal into appeal and granted bail to the accused---Appeal was allowed.

Asif Sharif v. Chairman, NAB 2004 SCMR 1805; Aga Jehanzeb v. NAB and others 2005 SCMR 1666 and Abdul Qadir v. Federation of Pakistan through Secretary Ministry of Interior, Government of Pakistan and others 2002 SCMR 1478 rel.

M.A. Zaidi, Advocate-on-Record for Petitioner.

M. Asghar Rana, Addl. P.G. NAB for Respondents.

Date of hearing: 5th March, 2008.

SCMR 2008 SUPREME COURT 1138 #

2008 S C M R 1138

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan and Syed Zawwar Hussain Jaffery, JJ

FEDERATION OF PAKISTAN and others----Petitioners

Versus

AMIR ZAMAN SHINWARI, SUPERINTENDING ENGINEER----Respondent

Civil Petition No.901 of 2007, decided on 1st January, 2008.

Civil Servants Act (LXXI of 1973)---

----S. 9---Constitution of Pakistan (1973), Art.185(3)---Promotion, claim for---Implementation of order---Department had sought leave to file appeal against order of High Court whereby petitioner was directed by the High Court to promote the civil servant immediately in next grade---Civil Servant whose name was at serial No.3 of the seniority list, his case of promotion from Superintending Engineer (BPS-19) to Chief Engineer (BPS-20) was deferred by General Selection Board without any tangible material, on unauthenticated and evasive ground, while his juniors whose names were at Serial Nos.6 and 7 of the seniority list with less score were promoted---Civil Servant feeling aggrieved thereby assailed order before the Service Tribunal which remanded case to the Department, with the direction to consider case of Civil Servant for promotion and in case he was clear for promotion, same would take effect from the date his juniors were promoted to the post of Chief Engineer BPS-20---Said order passed by the Service Tribunal having not been implemented, Civil Servant filed constitutional petition against non-implementation of order of the Tribunal---High Court accepted petition with a direction to the Department to implement order of the Tribunal---High Court examining the attitude of the Department issued direction that he be promoted to the next grade with immediate effect with all back benefits---Factual position was conceded by the Department in the Service Tribunal as well as before High Court, but despite that the Department had failed to implement orders passed by the Service Tribunal---Attitude of Department was hostile and injustice was done to Civil Servant without any substantial ground---High Court had rightly examined the attitude of Department and had rightly issued direction that Civil Servant be promoted to the next grade with immediate effect with all benefits---Judgment passed by the Tribunal and impugned judgment passed by the High Court could not be set aside---Civil Servant having already retired, his emoluments were ordered to be released within stipulated period.

Government of Pakistan through Establishment Division Islamabad and 7 others v. Hameed Akhtar Niazi, Academy of Administrative Training Walton, Lahore and others 2003 PLC (C.S.) 212 ref.

Ms. Naheeda Mehboob Ellahi, D.A.G for Pakistan.

M.S. Khattak, Advocate-on-Record.

Tahir Mehmood Qureshi, S.O.

Ibrahim Shah, Law Officer.

SCMR 2008 SUPREME COURT 1144 #

2008 S C M R 1144

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan, Muhammad Qaim Jan Khan

and Ch. Ejaz Yousaf, JJ

FAZAL AHMAD NASEEM GONDAL----Appellant

Versus

REGISTRAR, LAHORE HIGH COURT----Respondent

Civil Appeals Nos.53, 54, 55 and 56 of 2008, decided on 29th April, 2008.

(On appeals from the judgments, dated 28-9-2007 passed by the Punjab Subordinate Judiciary Service Tribunal, Lahore High Court, Lahore in S.A. Nos.49 of 2002, 17 of 2004, 11 of 2005 and 13 of 2005).

Punjab Civil Servants Efficiency and Discipline) Rules, 1999---

----Rr. 3(b)(c) & 4---Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991), S.4---Constitution of Pakistan (1973), Art.212(3)---Civil Judge-cum-Judicial Magistrate---Dismissal from service---Charges of misconduct and corruption---Dismissal of appeal by Service Tribunal---Plea' of Civil Judge that he had 25 years' unblemished service at his credit without any complaint; that charges levelled against him were false; and that he was condemned unheard---Validity---While giving his findings, Inquiry Officer had considered reference sent by District and Sessions Judge, Resolution of District Bar and adverse remarks recorded in A.C.Rs. of Civil Judge, statements of prosecution witnesses and other material . on record---Twenty one transfer applications containing allegations of corruption were made against Civil Judge during his posting at place "R"---President and other members of District Bar at place "R" had been complaining against integrity and reputation of Civil Judge---Civil Judge in three transfer applications was accused of having flouted orders of District Judge and announced judgments despite stay orders of Appellate Court---Civil Judge had failed to clarify his position even though he had attended proceedings before Inquiry Officer and cross-examined witnesses---Supreme Court dismissed appeal filed by Civil Judge.

Samiuddin Qureshi v. Collector of Customs PLD 1989 SC 335 and S.M. Tufail Ahmad v. Kafiluddin Ahmad and others 1986 PLC (C.S.) 393 ref.

M. Zakria Sh. Advocate Supreme Court for Appellant (in all Appeals).

Qazi M. Amin, Additional Advocate-General Punjab and M. Akram, D.R. (Conf.) Lahore High Court for Respondent (in all appeals).

Date of hearing: 29th April, 2008.

SCMR 2008 SUPREME COURT 1147 #

2008 S C M R 1147

[Supreme Court of Pakistan]

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

SAADAT ALI and another---Petitioners

Versus

THE STATE---Respondent

Crl. Misc. Application No.3 of 2003 in Cr. Appeal No.338 of 2000, decided on 8th May, 2003.

Penal Code (XLV of 1860)----

----S. 302/34---Criminal Procedure Code (V of 1898), S.345---Compounding of offences---Detailed report of Sessions Court and the statements of the heirs of the deceased had revealed that compromise between the parties was genuine and legal and both the heirs of the deceased had pardoned the accused waiving their right of Qisas and Diyat---Compromise was consequently accepted and the accused were acquitted accordingly.

Mian Abdul Qadoos, Advocate Supreme Court for Petitioners.

M. Zaman Bhatti Advocate Supreme Court for the State.

Date of hearing: 8th May, 2003:

SCMR 2008 SUPREME COURT 1148 #

2008 SCMR 1148

[Supreme Court of Pakistan]

Present: Javed Iqbal and Hamid Ali Mirza, JJ

GOVERNMENT OF THE PUNJAB, FOOD DEPARTMENT through Secretary Food and another----Appellants

Versus

Messrs UNITED SUGAR MILLS LTD. and another----Respondents

Civil Appeals Nos.829 and 1078 of 2002, decided on 21st September, 2006.

(On appeal from the judgment, dated 6-12-2000 in Writ Petitions Nos.3100 of 1984 and 340 of 1985 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi).

(a) West Pakistan Foodstuffs (Control) Act (XX of 1958)---

----S. 3(1)---West Pakistan General Clauses Act (VI of 1956), S.2(41)---Control, supply, distribution, disposal of foodstuffs by notified order---Scope---Notified order---Connotation---Notified order would mean notification through publication in official Gazette and not by passing an order and keeping same in office of department concerned---Notification not published in official Gazette would be invalid---Notified declaration could take effect from date of publication in Gazette and not from any prior date.

Muhammad Siddique v. Market Committee, Tandlianwala 1983SCMR 785; Pakistan through Secretary, Ministry of Defence and others v. Late Ch. Muhammad Ahsan through Legal Heirs and others 1991 SCMR 2180 and Muhammad Suleman and others v. Abdul Ghani PLD 1978 SC 190 ref.

(b) Administration of justice---

----Where law provided for doing of a particular act in a particular manner, then same would be done in such particular manner or not at all.

Ms. Afshan Ghazanfar, A.A.-G. for Appellants.

Nemo of Respondents.

Date of hearing: 21st September, 2006.

SCMR 2008 SUPREME COURT 1151 #

2008 SCMR 1151

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Abdul Hameed Dogar, JJ

SHAHID MASOOD MALIK---Petitioner

Versus

HABIB BANK LTD. and another---Respondents

Civil Petitions Nos.74 and 75 of 2002, decided on 30th January 2003.

(On appeal from the judgment dated 24-11-2001 of the Federal Service Tribunal, Islamabad passed in Appeal No.1886(R) of 1999 and 117(R)(CE) of 2000).

Rules Governing the Service of Employees of Habib Bank Limited---

----R. 37---Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Misconduct---Misappropriation of accounts---Departmental and criminal proceedings---Scope---Acquittal from Criminal Court---Petitioner being bank employee, on the charge of withdrawal of amounts from different accounts fictitiously was dismissed from service---Appeal before Service Tribunal was also dismissed---Plea raised by the petitioner was that he had been acquitted by Criminal Court from the criminal case registered against him on the same allegation---Validity---Such acquittals did not give to a delinquent clean certificate absolving him from departmental proceedings---Both the proceedings were conducted respecting the case registered against the delinquent while departmental proceedings were regarding the charges of malversation and misconduct---Both the proceedings could go side by side as their nature was totally different---Penalty imposed on a civil servant as a consequence of departmental proceedings under Efficiency and Discipline Rules, after the accused officer had been acquitted of a criminal charge, was not barred---Competent authority was empowered to impose upon an employee of bank major penalty of dismissal from service under R.37 of Rules Governing the Service of Employees of Habib Bank Limited, if the employees was found guilty---Supreme Court declined to interfere with the judgment passed by Service Tribunal---Leave to appeal was refused.

Inspector-General of Police, Punjab, Lahore and others v. Muhammad Tariq 2001 SCMR 789 ref.

Ch. Sadiq Muhammad Warraich, Advocate Supreme Court instructed by Imtiaz Muhammad Khan Advocate-on-Record for petitioner.

Ajmal Kamal, Advocate Supreme Court instructed by Ejaz Muhammad Khan Advocate-on-Record for Respondents.

Date of hearing: 6th February, 2003.

SCMR 2008 SUPREME COURT 1159 #

2008 SCMR 1159

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Muhammad Akhtar Shabbir and Zia Perwez, JJ

Syed IBNE HUSSAIN----Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Establishment Division and others----Respondents

Civil Review Petition No.91 of 2002, decided on 27th March, 2008.

(On review from judgment, dated 30-5-2002 of this Court, passed in Civil Appeal No.1495 of 1999, on appeal from judgment, dated 22-10-1997 of the Federal Service Tribunal, Islamabad, passed in Appeal No.569(R) of 1996).

(a) Civil service---

----Induction of officers of Armed Forces of Pakistan in Civil service---History stated.

G. Rabinathan v. State of Karnataka and others AIR 1995 SC 174 ref.

(b) Police Service of Pakistan (Composition and Cadre) Rules, 1985---

----R. 6---Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990---Selection of officer of Armed Forces in District Management Group---Allocation of Railways Group to such officer in year, 1989---Induction of such officer into Police Service of Pakistan (P.S.P.) Grade-18 in year, 1992 upon acceptance of his representation---Refusal of Authority to give benefit to such officer of his service rendered in Pakistan Railways from 1989 to 1992 towards his seniority in P.S.P.---Validity---Such officer on his induction into civil service could have been allocated only District Management Group,. Foreign Service Group or Police Service of Pakistan as per revised policy instructions issued by Establishment Division on 1-3-1982---Government in year 1992 had realized and rectified its mistake by accepting representation of such officer for his induction in P.S:P., but had refused his due place of seniority---Government was not legally justified to deprive such officer of his seniority as P.S.P. Officer from date he was inducted in Grade-18, but was wrongly allocated Railways Group---Such officer was not at fault---Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990 would come in way of such officer---Such officer would be assigned seniority as P.S.P. Officer (Grade-18) from date he was allocated Railways Group.

Jehangir Mirza, Senior Superintendent of Police, Lahore and another v. Government of Pakistan through Secretary, Establishment Division and others PLD 1990 SC 1013 and Islamic Republic of Pakistan v. Abdul Qadir Haye and others 1981 SCMR 501 rel.

----Procedure---Object stated.

The proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided, unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical, but we are not to take from that system its defects. Any system, which by giving effect to the form and not to the substance, defeats substantive rights, is defective to that extent. The ideal must always be a system that gives to every person what is his due.

Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382 fol.

Syed Ali Hasan Gilani, Advocate Supreme Court and Ch. Akhter Ali, Advocate-on-Record for Petitioner.

Raja Muhammad Irshad, D.A.-G. and Iftikhar Anjum, S.O. (Establishment Division) for Respondents Nos.1 and 2.

Khalid Paracha, Inspector (Legal) on behalf of Respondent No.5.

Date of hearing: 27th March, 2008.

SCMR 2008 SUPREME COURT 1165 #

2008 SCMR 1165

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

MEMBER (A.C.E. & S.T.), FEDERAL BOARD OF REVENUE, ISLAMABAD and others----Petitioners

Versus

MUHAMMAD ASHRAF and 3 others----Respondents

Civil Petitions Nos.332 to 335 of 2008, decided on 28th March, 2008.

(On appeal from the judgment, dated 12-12-2007 of the Federal Service Tribunal, Lahore passed in Appeals Nos.223(L)(C.S.), 239(L)(C.S.), 240(L)(C.S.) and 241(L)(C.S.) of 2002).

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

----R. 4(1)(b)(i)---Fundamental Rules, R.29---Constitution of Pakistan (1973), Art.212(3)---Supreme Court Rules, 1980, O.XIII, R.1---Reduction to five stages in time scale---Charges of casual and negligent attitude, procedural lapses and violation of instruction of Standing Order---Service Tribunal in appeal modified such penalty reducing same to two stages in time scale for two years---Validity---Petition for leave to appeal was barred by six (6) days---Penalty imposed by departmental authority upon civil servant did not specify length of time, thus, same was violative of Fundamental Rule 29---Penalty for indefinite period was not provided in law---Supreme Court upheld impugned judgment and refused to grant leave to appeal.

Auditor-General of Pakistan and others v. Muhammad Ali and others 2006 SCMR 60 ref.

Raja Muhammad Bashir, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 28th March, 2008.

SCMR 2008 SUPREME COURT 1171 #

2008 SCMR 1171

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

PROVINCE OF PUNJAB through Secretary, Agricultural Department, Lahore and others---Petitioners

Versus

SHAHID PERVAIZ and 2 others---Respondents

Civil Petitions Nos.3376-L to 3378-L, 3526-L, 3540-L and 3580-L of 2002, decided on 17th December, 2002.

(On appeal from the judgment dated 12-7-2002 of the Punjab Service Tribunal, Lahore passed in Appeals Nos.580 of 2000, 668 of 2000, 841 of 2000 and 668 of 2000).

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Financial loss, recovery of---Fraudulent withdrawal of G.P. Fund---Petitioners along with other Government officials were allegedly responsible for withdrawal of G.P. Fund fraudulently---Authorities held the petitioners liable to return the amount so withdrawn---Service Tribunal in appeal maintained the finding of the authorities---Plea raised by the petitioners before High Court was that they being not party to the fraud and cashier being the only person responsible to have caused loss to the State and being beneficiary of the withdrawal, recovery of specific amount from them could not be justified---Authorities contented that the penalties imposed by them were justified---Validity---Leave to appeal was granted by Supreme Court to further examine the entire case.

Muhammad Sharif Butt, Advocate Supreme Court with Rao Muhammad Yusuf Khan, Advocate-on-Record for Petitioners (in C.Ps. Nos.3376-L to 3378/L of 2002).

Hafiz Tariq Naseem, Advocate Supreme Court with M. Aslam Chaudhry, Advocate-on-Record for Respondents (in C.Ps. Nos.3376-L to 3378/L of 2002).

Ch. Muhammad Hussain Naqshbandi, Advocate Supreme Court with Muhammad Ozair Chughtai, Advocate-on-Record for Petitioner (in C.P. No.3526-L of 2002).

Nemo for Respondents (in C.P. No.3526-L of 2002).

Faizur Rehman, Advocate-on-Record far petitioner (in C.P. No.3540-L of 2002).

Nemo for Respondents (in C.P. No.3540-L of 2002).

Hafiz Tariq Nasim, Advocate Supreme Court with Muhammad Aslam Chaudhry, Advocate-on-Record for Petitioner (in C.P. No.3580-L of 2002).

Nemo for Respondents (in C.P. No.3580-L of 2002).

Date of hearing: 17th December, 2002.

SCMR 2008 SUPREME COURT 1174 #

2008 S C M R 1174

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

KHALID MANSOOR----Appellant

Versus

DIRECTOR, F.I.A., RAWALPINDI and another----Respondents

Civil Appeal No.1718 of 2007, decided on 12th May, 2008.

(On appeal from the judgment, dated 19-2-2007 of the Federal Service Tribunal, Islamabad in Appeal No.1775(R)(C.S.) of 2005).

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

----S. 3---Compulsory retirement from service---Charge of misconduct---Going abroad of two passengers on fake travelling documents during civil servant's duty at F.I.A. Immigration Check Post at Airport---Inquiry Officer recommended penalty of reduction to lower stage in time scale for period of three years---Competent Authority imposed penalty of compulsory retirement without recording specific reasons of his disagreement with recommendations of Inquiry Officer, but adding additional charges not mentioned either in the order of inquiry or statement of allegations or in final show-cause notice---Validity---Civil servant, despite having full opportunity to cross-examine witnesses, could not vindicate his position---Such passengers could not proceed abroad without blessing or inefficiency of civil servant---Recommendations of Inquiry Officer should have been given respect---Impugned penalty was set aside and that recommended by Inquiry Officer was maintained in circumstances.

M. Shoaib Shaheen, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Appellant.

Raja M. Irshad, D.A.-G., M.S. Khattak, Advocate-on-Record and Malik Tariq Mehmood, A.D., F.I.A. for Respondents.

Date of hearing: 8th May, 2008.

SCMR 2008 SUPREME COURT 1177 #

2008 SCMR 1177

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and M. Javed Buttar, JJ

ZAHEER AHMAD alias KALA and another----Petitioners

Versus

THE STATE----Respondent

Criminal Petition No.242-L of 2003, decided on 17th May, 2005.

(On appeal from the judgment, dated 3-4-2003 of the Lahore High Court, Lahore passed in Criminal Appeal No.256 of 1998 and Murder Reference No.139 of 1998).

Penal Code (XLV of 1860)---

----S. 302/34---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Medical evidence---Time of occurrence---Determination---Post-mortem report---Relationship of eye-witnesses with deceased---Incident was a broad-daylight occurrence, which took place on a road near shops and residential houses---Occurrence was promptly reported to police---Specific roles played by both the accused were narrated in detail---Use of different type of fire-arms by both the accused was given by witnesses---Trial Court awarded death sentence to both of the accused---Conviction and sentence awarded to the accused was maintained by High Court---Plea raised by the accused was that it was night time occurrence as matter contained in stomach, large intestines and bladder did not support the time of occurrence---Validity---Presence of semi-digested food in stomach, faecal matter in large intestines and urine in bladder of deceased could not necessarily lead to the conclusion that it was a night time occurrence or an occurrence which had taken place much earlier than 9-30 a.m.; it all depended on the time of intake of food and liquid by deceased, regarding which no evidence was available on record---Time of occurrence could not be doubted merely on the basis of presumptions---Eye-witnesses remained firm in their detailed searching cross-examination, who could not be doubted merely because of their relationship with the deceased---If the eye-witnesses or complainant were not present at the spot, they could not have given the detail of two types of weapons, which fact was established later on when the post-mortem was conducted---Trial Court as well as High Court believed the eye-witnesses and Supreme Court did not find any reason to disbelieve them---No doubt existed with regard to criminal liability of both the accused---Prosecution had successfully proved its case beyond any doubt---Supreme Court did not find any mitigating circumstance in favour of accused for awarding of lesser punishment---High Court had correctly dismissed the appeal of accused---Leave to appeal was refused.

Sheikh Najamul Hassan, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate-on-Record (absent) for Petitioners.

S.M. Masud, Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-Record for Respondent/Complainant.

Date of hearing: 17th May, 2005.

SCMR 2008 SUPREME COURT 1182 #

2008 S C M R 1182

[Supreme Court of Pakistan]

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

Mst FATEH BIBI---Petitioner

Versus

MUHAMMAD SAEED and others---Respondents

Civil Petition No.1743-L of 1999, decided on 29th June, 2004.

(On appeal from the judgment, dated 20-4-1999 passed by the Lahore High Court, Lahore in Civil Revision No.3022/D of 1996).

Specific Relief Act (I of 1877)---

----S. 42---Transfer of Property Act (IV of 1882), S.54---Contract Act (IX of 1872), Ss.17, 18 & 25---Limitation Act (IX of 1908), Art.120---Constitution of Pakistan (1973), Art.185(3)---Suit for declaration---Sale deed executed by plaintiff in favour of defendants including her mother---Plaintiff after more than 15 years challenged validity of sale deed on ground of fraud, misrepresentation and without consideration---Proof---Plaintiff's own brother was available in transaction along with her husband and one of the vendees to the extent of 1/3rd share was her own real mother---If any fraud was intended to be committed, mother should not at all have been shown as a vendee and her real brother as marginal witness to sale deed---Had plaintiff not entered into valid transaction, she would not have slept over matter for such a long period---Suit was hopelessly time-barred---Plaintiff infact had sold suit property for consideration and no fraud or misrepresentation had taken place---Suit was dismissed in circumstances.

Muhammad Sharif Chohan, Advocate Supreme Court for Petitioner.

A.G. Tariq Chaudhry, Advocate Supreme Court with M.A. Qureshi, Advocate-on-Record for Respondents.

Date of hearing: 29th June, 2004.

SCMR 2008 SUPREME COURT 1184 #

2008 SCMR 1184

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Sardar Muhammad Raza Khan and Karamat Nazir Bhandari, JJ

PERVAIZ AKHTAR---Appellant

Versus

ALTAF HUSSAIN and 3 others---Respondents

Criminal Appeal No.110 of 1999, decided on 23rd December, 2003.

(On appeal from the judgment dated 17-6-1996 of the High Court of Sindh, Karachi passed in Criminal Appeal No.126 of 1994 and Criminal Revision No.82 of 1994).

(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 the complainant to reappraise the entire evidence so as to determine as to which of the conflicting conclusions viz. that of the Trial Court convicting the accused or the High Court acquitting them was correct.

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---Plea of alibi taken by accused, no doubt, was not established being belated and inconsistent, but the statements of the complainant and his two servants could not be relied upon without corroboration, as enmity of the parties was admitted even in the F.I.R.---No weapon of offence was recovered in the case---Incident having taken place in the Verandah of Sessions Judge, recovery of crime-empties whether from inside or outside the Chamber of the Judge was immaterial as the prosecution had failed to establish that the shots were fired from a kalashnikov used by the accused---Carrying of kalashnikov was not even mentioned in the F.I.R.---Motive being a double-edged weapon was unable to furnish corroboration, as strained relations and inimical attitude while furnishing a basis for murder on the part of the accused could also be the basis for false involvement by the complainant---Impugned judgment of High Court acquitting the accused called for no interference---Appeal was dismissed accordingly.

Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11; Muhammad Nazir v. Muhammad Ali and another 1986 SCMR 1441; Alam Khan v. Swans Khan and 3 others 1996 SCMR 1742 and Imran Hussain v. Amar Arshad and 2 others 1997 SCMR 438 ref.

M.A. Zafari Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Appellant.

Barrister Azizullah Sheikh, Advocate Supreme Court for Respondents Nos. 1 and 2.

Respondent No.3 died.

Dr. Qazi Khalid Ali, Additional Advocate-General, Sindh for Respondent No.4/The State.

Dates of hearing: 15th and. 16th December, 2003.

SCMR 2008 SUPREME COURT 1189 #

2008 SCMR 1189

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Actg. C.J. Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

MEMBER, BOARD OF REVENUE, LAHORE----Petitioner

Versus

KHUDA BAKHSH and others----Respondents

Civil Review Petitions Nos.3-L to 20-L of 2001 in Civil Petitions Nos.2972-L to 2989-L of 2000, decided on 24th January, 2005.

(On appeal against the order, dated 21-12-2000 passed by this Court in Civil Petitions Nos.2972-L to 2989-L of 2000).

Constitution of Pakistan (1973)---

----Arts. 188 & 185(3)---Review of Supreme Court judgment---Petitioner had been non-suited primarily on laches, but without taking into consideration the facts of case, whereas examination of same was necessary, particularly keeping in view the fact that High Court dismissed Constitutional petition without passing a detailed order---Had the High Court proceeded to examine merits of case then probably fate of petition would have been different---Case was fit for exercising jurisdiction under Art. 188 of the Constitution, in view of certain errors in the judgment---Judgment was recalled and petitions for leave to appeal would be deemed to be pending.

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

Mian Dilawar Mehmood, Senior Advocate Supreme Court for Respondents.

Date of hearing: 24th January, 2005.

SCMR 2008 SUPREME COURT 1190 #

2008 S C M R 1190

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Tassadduq Hussain Jillani, JJ

WAZIR ALI (Late) through his legal heirs and others---Petitioners

Versus

Mst. MUHAMMAD BIBI (Late) through her legal heirs and others --Respondents

Civil Petition No. 930-L. of 2003, decided on 3rd August, 2004.

(On appeal from the judgment, dated 26-3-2003 passed by the Lahore High Court, Lahore in Civil Revision No.407 of 2003).

Specific Relief Act (I of 1877)---

----S. 42---Colonization of Government Lands (Punjab) Act (V of 1912), S.21(b)---Constitution of Pakistan (1973), Art.185(3)---Suit for declaration---Succession to tenancy---Plaintiff as daughter of deceased tenant "A" claimed to have inherited his tenancy rights---Plaintiff married with "D", who managed to acquire proprietary rights---Defendant filed counter suit claiming to be donee of suit-land allegedly gifted to him by plaintiff as well as to be exclusive owner thereof by way of inheritance from "D" as his collateral---Trial Court, after consolidating both suits, decreed plaintiff's suit, but dismissed defendant's suit, which judgment was upheld by Appellate Court and in revision by High Court---Validity---Courts below had concurrently found that "A" was last male owner and plaintiff was his daughter and defendant was not in any manner related to him---Rightful heir of said land after death of "A" and his wife, were. plaintiff and his sister---Defendant had initially not lodged any claim by filing suit qua suit property, but had filed same only as a counter blast to suit filed by plaintiff---Such inconsistent pleas raised by defendant had adversely reflected on his case---Supreme Court dismissed petition and refused leave to appeal.

Ghulam Mehmood Qureshi, Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-Record for Petitioners.

Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court and A.H. Masood, Advocate-on-Record (absent) for Respondents.

Date of hearing: 3rd August, 2004.

SCMR 2008 SUPREME COURT 1197 #

2008 S C M R 1197

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal and Syed Deedar Hussain Shah, JJ

FAROOQ AHMAD---Petitioner

Versus

FAZAL-UR-REHMAN and another---Respondents

Civil Petition No. 1550-L of 2000, decided on 12th July, 2004.

(On appeal from the judgment, dated 26-4-2000 of the Lahore High Court, Multan Bench, Multan passed in Civil Revision No.129 of 2000).

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

----S. 13(3)---Constitution of Pakistan (1973), Art.185(3)---Preemption suit---Talb-e-Ishhad, making of---Time limit---Sale was made on 17-5-1994---Pre-emptor came to know about sale on 11-9-1994 and made Talb-e-Ishhad on 14-9-1994---Trial Court dismissed suit, but Appellate Court decreed same---High Court accepted revision on the ground that words "as soon as possible" as used in S.13(3) of Punjab Pre-emption Act, 1991 had not complied with, and that no valid reasons were shown for not making such Talb on 12th or 13th September, 1994, thus, in absence of such evidence, Talb-e-Ishhad was not in accordance with requirement of S.13(3) of Punjab Pre-emption Act, 1991---Contention of pre-emptor was that such Talb made on 14-9-1994 i.e. within three days, whereas time limit prescribed by law was two weeks from making of Talb-e-Muwathibat---Supreme Court granted leave to appeal, inter alia, to consider such contention.

Zafar Iqbal Chaudhry, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioner.

M. Akram Sheikh, Senior Advocate Supreme Court and Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Respondents.

Date of hearing: 12th July, 2004.

SCMR 2008 SUPREME COURT 1199 #

2008 S C M R 1199

[Supreme Court of Pakistan]

Present: Falak Sher and Tassaduq Hussain Jillani, JJ

ZEB ELLAHI alias ZEBA and others---Petitioners

Versus

MUHAMMAD RAMZAN and others----Respondents

Civil Petition No.3173-L of 2000, decided on 1st June, 2005.

(On appeal from the judgment, dated 11-10-2000 passed by Lahore High Court, Lahore in Civil Revision No.1276 of 1984).

Specific Relief Act (I of 1877)---

----S.42---Constitution of Pakistan (1973), Art.185 (3)---Declaration of title---Power of attorney and sale-deed, assailing of---Concurrent findings of fact by two Courts below---Plaintiffs asserted that power of attorney relied upon by defendants was a forged document and sale-deed on the basis of such power of attorney was illegal---Witness produced by plaintiffs stated that plaintiffs did not affix their thumb-impression on power of attorney---In certified copy of disputed general power of attorney, no power was granted to attorney to sell the land---Thumb-impressions of plaintiffs were affixed on the first page of general power of attorney and were not available on the remaining pages of the power of attorney---Attorney holder, and transferees were real brothers---Suit dismissed by Trial Court was decreed by Appellate Court and judgment and decree passed by Appellate Court was upheld by High Court---Validity---Concurrent judgments and decrees of the Courts below were in accord with the weight of evidence led---No illegality or infirmity in the judgment was found warranting interference---No question of law of public importance was raised before Supreme Court---Leave to appeal was refused.

Ch. Muhammad Yaqoob Sabir, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Petitioners.

Nemo for Respondents.

Date of hearing: 1st June, 2005.

SCMR 2008 SUPREME COURT 1201 #

2008 S C M R 1201

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Khalil-ur-Rehman Ramday and Faqir Muhammad Khokhar, JJ

GHULAM FARID and others---Petitioners

Versus

MUHAMMAD BAKHSH and another---Respondents

Civil Petition No. 1018-L of 2001, decided on 25th June, 2004.

(On appeal from judgment, dated 16-2-2001 of the Lahore High Court, Lahore, passed in Civil Revision No.1227 of 1989).

(a) Pardanashin lady---

----Agreement to sell by illiterate Paradanashin lady---Plea of non-availability of independent advice to such lady---Validity---Agreement was signed by her attorney/husband, who did not disown his signatures thereon during examination in Court---Husband admitted that he had brought his wife to the Court on relevant day---Marginal witness deposed that agreement was executed by such lady, which had been read over to her, who after accepting its correctness had put her thumb impression thereon---Lady, held, had executed the agreement in presence of her husband.

Muhammad Saleem v. Muhammad Aslam and others 1983 SCMR 53; Sheikh Muhammad v. Mst. Hashmat Sultana 1989 SCMR 34; Ch. Muhammad Ismail v. Fazal Zada, Civil Judge, Lahore and twenty others PLD 1996 SC 246; Abdul Wall. Khanb through legal heirs and others v. Muhammad Saleh 1998 SCMR 760; Nawab Sikandar Begum v. Zulfikar Wali Khan (minor) and others AIR 1938 Privy Council 38; Farid-un-Nisa v. Mukhtar Ahmad and another 52 I.A. 342 = AIR 1925 PC 204; Kali Bakhsh Singh and others v. Ram Gopal Singh and others (1913) (41 I.A. 23 = 21 I.C. 985 and Hussain and others v. Lal Din and others 1998 SCMR 99 ref.

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

----Ss. 12 & 27(b)---Suit for specific performance of agreement to sell---Subsequent purchaser claimed to be bona fide purchaser having no notice of earlier agreement---Validity---Subsequent purchaser had purchased property from vendor through her husband, who was her attorney and had knowledge about earlier agreement---Such plea was not tenable in facts and circumstances of case.

Ch. Hamiduddin, Senior Advocate Supreme Court and Sh. Salahuddin, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 25th June, 2004.

SCMR 2008 SUPREME COURT 1206 #

2008 S C M R 1206

[Supreme Court of Pakistan]

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

Haji Mian ABDUL RAFIQUE----Petitioner

Versus

RIAZ-UD-DIN and another----Respondents

Criminal Petition No.534 of 2003, heard on 28th March, 2005.

(On appeal from the judgment, dated 24-11-2003 passed by the Lahore High Court, Rawalpindi in Criminal Miscellaneous No.1245/B of 2003).

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.302---Constitution of Pakistan (1973), Art.185(3)---Cancellation of bail, refusal of---All the prosecution witnesses except one or two had been examined in the case and this ground alone was sufficient for not interfering with the impugned order of High Court granting bail to accused at present stage, moreso when the cancellation of bail was sought on merits of the case and the accused was not alleged to have misused the concession of bail---Leave to appeal was declined to complainant in circumstances.

Malik Muhammad Kabir, Advocate Supreme Court for Petitioner.

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

Date of hearing: 28th March, 2005.

SCMR 2008 SUPREME COURT 1208 #

2008 S C M R 1208

[Supreme Court of Pakistan]

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

BASHIR AHMED and others ---Petitioners

Versus

M. (COLONIES) B.R. and others---Respondents

Civil Petition No. 1021-L of 2000, decided on 21st July, 2004.

(On appeal from the judgment, dated 9-3-2000 passed by the Lahore High Court, Lahore in Writ Petition No.4487 of J979).

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

----Ss.10 & 24---Scheme for bringing under cultivation un-cultivated land---Resumption of land granted under such scheme---Validity---Tenant had neither remained in physical possession of land nor cleared outstanding dues nor appeared before E.A.C.O. in response to notice issued by him---Tenant had, got no interest in cultivation of land---Order of resumption of land was just and proper in circumstances.

Sh. Naveed Sheharyar, Advocate Supreme Court and Walayat Umar Ch. Advocate-on-Record for Petitioners.

Muhammad Saeed, Litigation Assistant for Respondents Nos.1 and 2.

Respondents Nos.3 and 4 (in person).

Date of hearing: 21st July, 2004.

SCMR 2008 SUPREME COURT 1217 #

2008 S C M R 1217

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Falak Sher, JJ

MUHAMMAD ALEEM and others----Petitioners

Versus

Mst. HAMEEDA BEGUM and others----Respondents

Civil Petition No.757-L of 2003, decided on 30th July, 2004.

(On appeal from the judgment, dated 21-1-2003 passed by the Lahore High Court, Lahore in Civil Revision No.641 of 1999).

Constitution of Pakistan (1973)---

----Art. 185(3)---Partition of property in dispute had already taken place and no live issue was left for consideration by Court ---Even otherwise no question of law was involved in case warranting exercise of jurisdiction of Supreme Court under Art.185(3) of Constitution of Pakistan (1973)---Leave to appeal was declined.

Mahfuzul Haq Khan, Advocate Supreme Court and Mehmood A. Qureshi, Advocate-on-Record for Petitioners.

Respondent No.7 in person.

Date of hearing: 30th July, 2004.

SCMR 2008 SUPREME COURT 1219 #

2008 S C M R 1219

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Muhammad Akhtar Shabbir and Syed Sakhi Hussain Bokhari, JJ

AFSAR KHAN----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.495 of 2006, decided on 8th January, 2008.

(Against the judgment of the Peshawar High Court, Peshawar, dated 16-11-2006 passed in Criminal Appeal No.22 of 2005).

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

----S. 9(c)---Constitution of Pakistan (1973), Art.185(3)---No animosity of the prosecution was shown to exist for involving the accused falsely in a serious case of narcotics---Recovery of huge quantity of "Charas" was not denied by the accused---Report of Chemical Examiner was positive---High Court had given sound reasons for distinguishing the case of co-accused for acquitting her of the charge---Courts below had properly appraised the evidence in coming to a definite conclusion of the guilt of accused to which no exception could be taken---Leave to appeal was refused to accused accordingly.

Ikram Hussain v. The State 2005 SCMR 1487 ref.

F.K. Butt, Advocate Supreme Court for Petitioner.

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

SCMR 2008 SUPREME COURT 1221 #

2008 SCMR 1221

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

GHULAM QADIR and 2 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.402 of 2002, decided on 4th April, 2008.

(On appeal from the judgment and order of the Lahore High Court, Bahawalpur Bench, Bahawalpur, dated 21-3-2002 passed in Criminal Appeal No.20 of 2000).

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

----S. 161---Belated statements of witnesses---Effect---Belated examination of a witness by police may not be fatal to prosecution but where delay is unexplained, accused has not been named in F.I.R. and circumstances justify that open F.I.R. and delay have purposely been manoeuvred to name accused later, such managed delay and gaps adversely affected prosecution case.

Mehmood Ahmad v. The State 1995 SCMR 127 rel.

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

----Ss. 324/396/449/148/149----Conviction---Injured witness, nonappearance---Effect---If injured witness himself does not appear to charge an accused for his injury and court is not satisfied with his disability or incompetence or reasons for not appearing then conviction cannot be recorded on the basis of other evidence under Qisas.

Asghar Ali alias Sabah v. The State 1992 SCMR 2088 rel.

----Ss. 324/396/449/148/149---Anti-Terrorism Act (XXII of 1997), S.7---Qanun-e-Shahadat (10 of 1984), Art.22---Reappraisal of evidence---Benefit of doubt---Identification parade---Infirmities and illegalities---Role played by each accused, non-describing of---One accused was acquitted by Trial Court, while three were convicted and sentenced to death, which sentence was maintained by High Court---Validity---Proceedings of identification parade where accused were picked up without describing role played by them in crime, suffered from illegalities and infirmities rendering it completely unreliable having no evidentiary value---Possibility that police had got accused identified by witnesses prior to identification parade could not be excluded---Supreme Court, while giving benefit of doubt to accused, set aside convictions and sentences recorded by Trial Court and maintained by High Court and accused were acquitted of the charge.

Khadim Hussain v. The State 1985 SCMR 721 and Lal Singh v. Crown 1924 ILR 51 Lah. 396 ref.

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

----Ss. 324/396/449/148/149---Reappraisal of evidence--Medical evidence--Scope--Medical evidence may confirm ocular evidence with regard to receipt of injuries, nature of injuries, kinds of weapon used in occurrence but it cannot connect accused with commission of offence.

(e) Criminal trial---

----Benefit of doubt, principle of---Applicability---For the purpose of benefit of doubt to an accused, more than one infirmity is not required---Single infirmity creating reasonable doubt in the mind of a reasonable and prudent person regarding the truth of charge, makes the whole case doubtful.

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

----Arts. 117 & 120---Anti-Terrorism Act (XXII of.1997), S.7---Burden of proof---Principle---Merely because burden is on accused to prove his innocence, it does not absolve prosecution from its duty to prove its case against accused beyond any shadow of doubt and this duty does not change or vary in the case---Finding of guilt against person cannot be based merely on high probabilities that may be inferred from evidence in a given case---Mere conjectures and probabilities cannot take place of proof.

Muhammad Luqman v. The State PLD 1970 SC 10 rel.

Raja Muhammad Ibrahim Satti, Advocate Supreme Court for Appellants.

Ms. Yasmin Sehgal D.P.-G. for the State.

Date of hearing: 4th April, 2008.

SCMR 2008 SUPREME COURT 1228 #

2008 S C M R 1228

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ch. Ejaz Yousaf and Muhammad Farrukh Mahmud, JJ

ABDUL MAJEED----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.340 of 2005, decided on 6th May, 2008.

(On appeal from the judgment, dated 21-4-2004 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Criminal Appeal No.230 of 1998 and Murder Reference No.77 of 2000).

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

----S. 302---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to reappraise evidence in its true perspective considering the fact that neither blood-stained earth nor empties were recovered from the place of incident.

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

----S. 302(b)--- Reappraisal of evidence---Daylight occurrence---Repeating of fires---Description of fire shots, non-mentioning of---Bloodstained earth---Complainant did not specify shots fired upon deceased by accused in F.I.R., nor it was mentioned therein that deceased received fires at such and such part of his body---Sentence of death awarded by Trial Court was maintained by High Court---Validity---Narration by complainant was very natural and truthful, who could easily improve his statement by specifying number of shots and seat of injury but he did not do so---Statements of eye-witnesses could not be discarded for mere reason that blood stained earth was not collected by Investigating Officer---Case was that of single accused, occurrence took place when light was available and identity of assailant was not in question---Prosecution witnesses plausibly established their presence at the time of occurrence and their statements were fully supported by medical evidence and corroborated by circumstances of the case including lodging of F.I.R. promptly---Both the courts below rightly believed prosecution evidence as prosecution had successfully proved its case against the accused---Accused waylaid the deceased and repeated fire at him which showed his intention---Any weakness in the motive would not come to the rescue of accused---Supreme Court declined to interfere with the conviction and sentence awarded by both the courts below---Appeal was dismissed.

Syed Hamid Mukhtar shah v. Muhammad Azam and 2 others 2005 SCMR 427 rel.

---S. 302---Defective investigation---Clothes of complainant were stained with blood while shifting deceased, which were not taken into possession by investigating officer---Effect---Such discrepancy reflected on the working and lethargy of Investigating Officer and it could not cause any harm to prosecution case.

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

---S. 302---Reappraisal of evidence---Recovery---Scope---In absence of recovery of any empty, the recovery of weapon cannot be used against accused.

Sardar M. Latif Khan Khosa, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Appellant.

Ch. Afrasiab Khan, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for the complainant.

M. Siddique, Deputy Prosecutor-General for the State.

SCMR 2008 SUPREME COURT 1235 #

2008 SCMR 1235

[Supreme Court of Pakistan]

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

NIAZ AHMAD----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.448-L of 2006, decided on 27th July, 2007.

(On appeal from the order, dated 22-5-2006 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.2075/B of 2006).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.452, 337-L(ii), 337-A(ii)(i)(iv), 148 & 149---Constitution of Pakistan (1973), Art.185(3)---Bail, grant of---Only one injury had been attributed on the head of injured by the prosecution and it was only skin deep with Sota as per medical evidence---Same would not prohibit court of law to consider his release on bail---Facts and circumstances of the case, were sufficient to hold that after remaining confined in jail about one year, petitioner was entitled for the bail on the basis of material available on record---Petition was converted into appeal and allowing same petitioner was admitted to bail.

N.A. Butt, Advocate Supreme Court and Haji M. Rafi Siddiqui, Advocate-on-Record for Petitioner.

Imtiaz Ahmad Chaudhry, Advocate Supreme Court for the State.

SCMR 2008 SUPREME COURT 1236 #

2008 S C M R 1236

[Supreme Court of Pakistan]

Present: M. Javed Buttar, Muhammad Qaim Jan Khan and Syed Sakhi Hussain Bokhari, JJ

SAIF-UL-ISLAM----Petitioner

Versus

THE STATE----Respondent

Jail Petition No.267 of 2007, decided on 24th May, 2008.

(On appeal from the judgment of the Peshawar High Court, Peshawar, dated 25-7-2007 in Criminal Appeal No.439 of 2006 and Murder Reference No.26 of 2006).

Penal Code (XLV of 1860)---

----Ss. 302(b)/34, 324/34 & 337-F(iii)/34---Constitution of Pakistan (1973), Art.185(3)---Ocular account of occurrence was consistent, convincing and confidence inspiring---Complainant had also received injuries during the occurrence---No enmity existed between the parties prior to the present occurrence and so there was no chance of false implication of accused---Medical evidence had corroborated the ocular testimony---Accused had absconded after the occurrence and gone abroad and he had been brought back through Interpol Police and declared a proclaimed offender---Failure on the part of accused to explain his absence was also an incriminating circumstance against him---Defence plea taken by accused by being not present at the scene of occurrence had no value---Accused and his co-accused had killed three innocent persons and injured five witnesses and he deserved no leniency---Impugned judgment did not suffer from any illegality or infirmity---Leave to appeal was declined to accused in circumstances.

Kh. Muhammad Khan, Advocate Supreme Court for Petitioner.

Muhammad Zaman Bhatti, Advocate Supreme Court for the State.

Date of hearing: 24th April, 2008.

SCMR 2008 SUPREME COURT 1241 #

2008 S C M R 1241

[Supreme Court of Pakistan]

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

NOOR MUHAMMAD KHAN----Petitioner

Versus

REGISTRAR, LAHORE HIGH COURT and another----Respondents

C.As. Nos.1699 and 1700 of 2003 and C.Ps. Nos.1193-L to 1197-L of 2003, decided on 7th February, 2007.

(On appeal from the judgment of the Punjab Subordinate Judiciary Service Tribunal, Lahore, dated 11-4-2003 passed in Service Appeal No.19 of 1998).

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

----Ss. 3 & 10---Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991), S.5---Constitution of Pakistan (1973), Art.212(3)---Imposition of penalty of dismissal from service---Conversion of penalty to compulsory retirement from service---Appellant against whom disciplinary proceedings were taken on ground of certain acts of misconduct and adverse remarks in his Annual Confidential Report, was dismissed from service--Inquiry was conducted against appellant and Inquiry Officer affirmed certain charges levelled against him---Competent Authority ordered dismissal of appellant from service and on filing appeal against judgment of the competent Authority, Service Tribunal altered penalty of dismissal from service into compulsory retirement from service---Validity---Questions involved in the appeal did not raise any substantial question of law of public importance, within the purview of the expression employed in Art.212 of the Constitution---Service Tribunal did not find any adequate and concrete evidence for holding appellant guilty of corruption, but found him guilty of judicial impropriety, lack of mannerism, indiscipline and being a tactless Judicial Officer---Findings of fact did not appear to suffer from any legal infirmity or misreading of record---Service Tribunal was fully authorized and empowered to confirm, modify, vary and revise the quantum of punishment, which power was rightly exercised by the Tribunal---No substantial question of law of public importance and no ground for interference with the exercise of jurisdiction, having been made out, both appeals were dismissed by the Supreme Court.

Abdul Wahid Chaudhry, Advocate Supreme Court for Appellant (in C.A. No.1699 of 2003).

Farooq Zaman Qureshi, Advocate Supreme Court and Ch. M. Hussain, Addl. A.-G. Punjab for Respondents (in C.A. No.1699 of 2003).

Farooq Zaman Qureshi, Advocate Supreme Court for Appellant (in C.A. No.1700 of 2003).

Abdul Wahid Chaudhry, Advocate Supreme Court and Ch. M. Hussain, Addl. A.-G., Punjab for Respondent No.1 (in C.A. No.1700 of 2003).

Abdul Wahid Chaudhry, Advocate Supreme Court (in C.Ps. Nos.1193-L to 1197-L of 2003).

Nemo for Respondents (in C.Ps. Nos.1193-L to 1197-L of 2003).

Date of hearing: 7th February, 2007.

SCMR 2008 SUPREME COURT 1244 #

2008 S C M R 1244

[Supreme Court of Pakistan]

Present: M. Javed Buttar, Muhammad Qaim Jan Khan and Muhammad Farrukh Mahmud, JJ

ZILA COUNCIL, SHEIKHUP.URA through Administrator----Appellant

Versus

MUHAMMAD ARIF----Respondent

Civil Appeal No.661 of 2001, decided on 20th May, 2008.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 21-12-2000 passed in R.F.A. No.265 of 1997).

Civil Procedure Code (V of 1908)---

----S. 107(2) & O.XLI, Rr.1, 3---Pendency of first appeal in High Court---Application for withdrawal of appeal with permission to refile same after removing its defects---Dismissal of appeal by High Court as withdrawn---Dismissal of miscellaneous application filed by appellant in High Court along with amended memo. of appeal---Validity---Appellant, instead of filing a fresh appeal, could not move such miscellaneous application as appeal had already been dismissed as withdrawn---Appellant could avail only remedy of filing a fresh appeal, which was still available to him---Impugned judgment was not suffering from any legal defect---Appellant, if so advised, could seek its remedy by filing a fresh appeal before High Court against judgment/decree passed by Trial Court and respondent would have an opportunity to raise all possible legal and factual pleas and objections---Supreme Court dismissed appeal with such observations.

General Manager, Heavy Vehicles Factory, Avadi, Madras and another v. T. Shadrak AIR 1979 NOC 55 (Mad.); Chintapatla Venkatanarsimha Ramchandra Rao and others AIR 1933 Mad. 358; Hans Raj Akrot v. State of Himachal Pradesh AIR 1989 HP 43; Haji Muhammad Islam v. Muhammad Rafique and 2 others 199.1 CLC 84; Khushi Muhammad and 4 others v. Khairat Hussain and 6 others 1990 CLC 813; Qadir Shams v. Winston Bakhsh PLD 1989 Lah. 523; Mian Fazal Ealhi v. Additional District Judge and another PLD 1988 Lah. 239; Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289; Mst. Hawabai and 6 others v. Abdus Shakoor and 8 others PLD 1970 Kar. 367; Abdul Shakoor and others v. Mst. Hawabai and others 1982 SCMR 867; Miss Shah Begum v. Ashraf Ali Naz PLD 1993 Kar. 151; Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102; Karim Gul and another v. Shahzad Gul and another 1970 SCMR 141; Moula Bakhsh v. Muhammad Zahid and another PLD 1990 SC 596; Mahboob Khan v. Hassan Khan Durrani PLD 1990 SC 778 and Mst. Khadija Begum and 2 others v. Mst. Yasmeen and 4 others PLD 2001 SC 355 ref.

Gul Zarin Kiani, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record (absent) for Appellant.

Kh. Muhammad Farooq, Advocate Supreme Court for Respondent.

Date of hearing: 20th May, 2008.

SCMR 2008 SUPREME COURT 1251 #

2008 S C M R 1251

[Supreme Court of Pakistan]

Present: Ch. Ijaz Ahmed and Hamid Ali Mirza, JJ

LAHORE HIGH COURT, LAHORE----Appellant

Versus

MASOOD UMAR KHAN and another----Respondents

Civil Appeal No.1671 of 2003, decided on 14th December, 2006.

(On appeal from the judgment, dated 25-7-2003 passed by the Subordinate Judiciary Service Tribunal, Lahore in Appeal No.96 of 2001).

Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

-----S. 5---Constitution of Pakistan (1973), Art.212(3)---Service Tribunal had misread the evidence on record---Courts/Tribunals, were duty bound to decide the case after judicial application of mind---Appeal, in circumstances, was accepted and impugned judgment of the Service Tribunal was set aside by the Supreme Court with direction that case would be deemed to be pending adjudication before the Service Tribunal, which would be decided by the Tribunal afresh after affording opportunity of hearing to all concerned.

Mrs. Bilquis Begum's case 2003 PLC (C.S.) 187; K.M. Sohel's case 2001 PLC (C.S.) 1253 and Gouranga Mohan Sikdar's case PLD 1970 SC 158 rel.

Farooq Zaman Qureshi, Advocate Supreme Court and Nazar Hussain, Deputy Registrar for Appellant.

Respondents: Ex parte.

SCMR 2008 SUPREME COURT 1254 #

2008 SCMR 1254

[Supreme Court. of Pakistan]

Present: Faqir Muhammad Khokhar, Saiyed Saeed Ashhad, Muhammad Akhtar Shabbir

and Syed Sakhi Hussain Bokhari, JJ

ZAFAR----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.310 of 2003, decided on 17th April, 2008.

(On appeal from the judgment of the High Court of Sindh at Karachi, dated 8-7-2003 passed in Criminal Appeal No.100 of 2002).

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

----S. 9(c)---Evidence of police officials---Competence---Police employees are competent witnesses like any other independent witness and their testimony cannot be discarded merely on the ground that they are police employees.

Muhammad Azam v. The State PLD 1996 SC 67; Muhammad Hanif v. The State 2003 SCMR 1237; Riaz Ahmad v. The State 2004 SCMR 988 and Naseer Ahmad v. The State 2004 SCMR 1361 rel.

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

----S. 25---Criminal Procedure Code (V of 1898), S.103---Search---Evidence of private witness---Scope---Applicability of S.103, Cr.P.C. in narcotic cases has been excluded---Non-inclusion of any private witness is not a serious defect to vitiate conviction.

Muhammad Shah and others v. The State PLD 1984 SC 278; State v. Muhammad Amin 1999 SCMR 1367; Fida Jan v. The State 2001 SCMR 36 and Rasool Bakhsh v. The State 2005 SCMR 731 rel.

----Ss. 20, 21 & 22---Seizure and arrest---Non-compliance of mandatory provisions---Effect---Provisions of Ss.20, 21 & 22 of Control of Narcotic Substances Act, 1997, being directory, non-compliance thereof would not be a ground for holding trial/conviction bad in the eyes of law.

Fida Jan v. The State 2001 SCMR 36; State through A.-G., Sindh v. Hemjoo 2003 SCMR 881; Karl John Joseph v. The State PLD 2004 SC 394 and Muhammad Younas v. Mst. Perveen alias Mano and others 2007 SCMR 393 rel.

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

----S. 9(c)---Reappraisal of evidence---Recovery of 11 kilograms of opium---Complainant as Investigating Officer---No public witness---During search, 11 kilograms of opium was recovered from accused and he was convicted and sentenced by Trial Court for imprisonment for life, which was maintained by High Court---Plea raised by accused was that complainant himself was Investigating Officer and all prosecution witnesses were officials of Anti-Narcotic Force---Validity---Police Officer was not prohibited under the law to be a complainant, if he was a witness of an offence---Such officer could also be an Investigating Officer, so long as it did not prejudice accused person---Though Investigating Officer and other prosecution witnesses were employees of Anti-Narcotic Force, they had no animosity or rancor against accused to plant such a huge quantity of narcotic material upon him---Defence did not produce any such evidence to establish animosity qua prosecution witnesses---All prosecution witnesses deposed in line to support prosecution case---Witness had passed the test of lengthy cross-examination but defence failed to extract any material contradiction fatal to prosecution case---Prosecution had been successful to bring home the guilt of accused to the hilt by placing ocular account, recovery of narcotic material and Chemical Examiner report---Accused failed to point out any error of law in the judgment and the same was unexceptionable---Appeal was dismissed.

State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408 rel.

Muhammad Ashraff Kazi, Advocate Supreme Court for Appellant.

Sh. Riaz-ul-Haq, Advocate Supreme Court for the State.

Date of hearing: 17th April, 2008.

SCMR 2008 SUPREME COURT 1259 #

2008 SCMR 1259

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari, Sheikh Hakim Ali and Muhammad Farrukh Mahmud, JJ

Mst. IMTIAZ BEGUM----Appellant

Versus

Mst. SULTAN JAN and others----Respondents

Civil Appeal No.1286 of 2003, decided on 12th June, 2008.

(On appeal from the judgment, dated (sic) of 2003 passed by the Peshawar High Court, Abbottabad Bench, in Civil Revision No.13 of 1996).

Civil Procedure Code (V of 1908)---

----S. 115---Revision---Petitioner in revision had filed miscellaneous application before the High Court for withdrawal of his revision on the basis of compromise having been entered into by him with respondents but said application was not decided by the High Court, and was kept pending to be decided at the time of final decision of the revision---No order was passed upon said application in the final judgment which too was delivered in another revision and only passing reference was mane to the revision in question and no independent/supportive order/decision was passed in the relevant revision---Validity---Held, it was not a complete and full adjudication of the disputed, questions of law and facts involved in the relevant revision before the High Court---Supreme Court set aside the impugned judgment with regard to the relevant revision and remanded the case to the High Court considering the relevant revision to be pending before it, with direction to decide the miscellaneous application filed by the petitioner as well as the relevant revision afresh after grant of opportunity of hearing to the parties.

Gul Zarin Kiani, Advocate Supreme Court for Appellant.

Fida Muhammad Khan, Advocate Supreme Court for Respondent No.1.

Respondents Nos.2 to 5: Ex parte.

Date of hearing: 12th June, 2008.

SCMR 2008 SUPREME COURT 1262 #

2008 S C M R 1262

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

Mst. FATEH BEVI and others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, KHUSHAB and others-Respondents

Civil Petition No. 3809-L of 2002, decided on 6th August, 2004.

(On appeal from the judgment, dated 10-9-2002 passed by Lahore High Court, Lahore in Writ Petition No.19845 of 2001).

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

----Ss. 12(2) & 141---Arbitration Act (X of 1940), Ss.14 & 17---West Pakistan Civil Courts Ordinance (II of 1962), S.7---Constitution of Pakistan (1973), Art.185(3)---Application for setting aside judgment/decree making award rule of Court---Respondent obtained award by alleging gift in his favour by applicant--Applicant denied to have made such gift---Trial Court dismissed application but same was accepted by Revisional Court and upheld in Constitutional petition by High Court---Validity---No documentary evidence existed with regard to alleged gift made by applicant---Judgment/decree making award rule 'of Court was ex parte---Alleged arbitration agreement had not been proved due to non-production of marginal witnesses---No reliance could be placed on deposition of arbitrator as he was neither related to either of parties nor resident of village, where parties resided and land situated nor there was any justification for his appointment as arbitrator---Civil Judge Second Class, who made award rule of Court, was lacking pecuniary jurisdiction to try civil suit of value of property subject matter of award---Concurrent findings of fact on questions of law and fact to the effect that Civil Judge, Second Class, lacked pecuniary jurisdiction, that gift was not made; that judgment/decree making award rule of Court was collusive, were un-exceptionable---Supreme Court dismissed petition and refused leave to appeal.

(b) Arbitration Act (X of 1940)---

----Ss. 14 & 17---West Pakistan Civil Courts Ordinance (II of 1962), S.7---Civil Procedure Code (V of 1908), S.141---Making award rule of Court---Pecuniary jurisdiction of Civil Court---Value of subject matter of award exceeding pecuniary jurisdiction of Civil Judge, Second Class to try a civil suit of same value---Effect---Application under Ss.14 & 17 of Arbitration Act, 1940, though not being a suit, could not be entertained and decided by such Civil Judge.

Shahid Hussain Khan, Advocate Supreme Court, Muhammad Hussain Awan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Petitioners.

Muhammad Ozair Chaughtai, Advocate Supreme Court (absent) for Respondents.

Date of hearing: 6th August, 2004.

SCMR 2008 SUPREME COURT 1265 #

2008 S C M R 1265

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Nasir-ul-Mulk and Hamid Ali Mirza, JJ

GHULAM RASOOL RANJHA----Petitioner

Versus

GOVERNMENT OF THE PUNJAB through Chief Secretary, Province of Punjab, Lahore and others----Respondents

Civil Petitions Nos.2742 to 2745 of 2004, decided on 8th January, 2007.

(On appeal from the judgment, dated 15-12-2004 in Service Appeals Nos.44, 56, 57 and 55 of 2001 passed by the Punjab Subordinate Judiciary Service Tribunal, Lahore High Court, Lahore).

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

----Rr. 3(b) & 4(1)(b)(iv)---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Penalty of dismissal from service was imposed upon the petitioner after issuing him show-cause notice and holding inquiry against him on charges of misconduct and corruption---Allegation against petitioner was that he had received illegal gratification through his Naib Qasid---Inquiry Officer after holding inquiry against petitioner found him corrupt and recommended imposition of any major penalty---Authority, after affording petitioner opportunity of hearing, dismissed him from service---No legal or factual infirmity had been pointed out or asserted by the petitioner in the impugned judgment--Overwhelming evidence on record indicated that the charges of corruption and misconduct were proved against the petitioner beyond any reason of doubt---A.C.Rs. of the petitioner for the years 1997 to 1999 also indicated that petitioner was reputed to be corrupt and had bad reputation--Petitioner could not he granted any premium for his misconduct or corruption which was considered highest degree of disqualification of a Judicial Officer, which could not be permitted--No ground for conversion of punishment from dismissal to compulsory retirement was made out in view of the charge of corruption amounting to misconduct which stood proved beyond reason of doubt against the petitioner.

Petitioner in person (in all cases).

Farooq Zaman Qureshi, Advocate Supreme Court for Respondents.

Date of hearing: 8th January, 2007.

SCMR 2008 SUPREME COURT 1268 #

2008 S C M R 1268

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari, Sheikh Hakim Ali and Muhammad Farrukh Mahmud, JJ

Mst. IMTIAZ BEGUM and others----Appellants

Versus

Mst. SULTAN JAN----Respondent

Civil Appeal No.1287 of 2003, decided on 12th June, 2008.

(On appeal from the judgment, dated 3-3-2003 passed by the Peshawar High Court, Abbottabad Bench in Civil Revision No.13 of 1996).

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

----S. 13---Talb-i-Muwathibat, performance of---Pre-emptor had not mentioned in the plaint as to when she had got the knowledge of the sale, on what date, time and place and by whom she was informed of the sale, even the particular person, who had apprised her and before whom she had performed Talb-i-Muwathibat was also not noted in the plaint---Defendants, in their written statement having refuted the assertion of performance of Talbs by pre-emptor, it was incumbent upon the plaintiff/pre-emptor to prove the performance of Talb-i-Muwathibat by entering into the plaint as well as in the notice and thereafter to produce the relevant evidence upon such material fact---Plaintiff/pre-emptor having failed to note the said particulars and details, in the said documents, the suit could not be decreed in favour of preemptor/plaintiff.

Mian Pir Muhammad and another v. Faqir Muhammad PLD 2007 SC 302 fol.

Gul Zarin Kiani, Advocate Supreme Court for Appellants.

Fida Muhammad Khan, Advocate Supreme Court for Respondent.

Date of hearing: 12th June, 2008.

SCMR 2008 SUPREME COURT 1272 #

2008 S C M R 1272

[Supreme Court of Pakistan]

Present: Sayied Saeed Ashhad and Sheikh Hakim Ali, JJ

BASHIR AHMED----Petitioner

Versus

Messrs MUHAMMAD SALEEM, MUHAMMAD SIDDIQUE & CO. (REGD.) and others----Respondents

Civil Appeal No.1652 of 2005, decided on 22nd April, 2008.

(On appeal from the judgment, dated 29-6-2000, passed by the Lahore High Court, Lahore in Civil Revision No.1720 of 1986).

(a) Administration of justice---

----Society of just people promotes justice, while a dishonest litigant multiplies cases by his destructive efforts.

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

----Ss. 42 & 54---West Pakistan Land. Reforms Regulations, 1959 (M.L.R. No.64), Para.27---Land Reforms Regulations, 1972 (M.L.R. No.115), Paras.26 & 32(2)(d)---West Pakistan Land Revenue Act (XVII of 1967), S.163---West Pakistan Land Reforms Rules, 1959, R.11---Punjab Land Reforms Rules, 1972, R.12---Suit for declaration and permanent injunction---Sale of land for valuable consideration---Attestation of mutation---Vendor seeking return of sold land alleging such mutation to be violative of provision of M.L.R. No.64 as vendee was not an owner in the Village---Vendor firstly filed suit, but withdrew same and filed application for review of mutation, which was accepted by District Collector---Vendee's suit assailing such order of Collector without impleading him as party---Suit dismissed by Trial Court and Appellate Court, but decreed by High Court in revision---Validity---Vendor had sold out suit-land for valuable consideration and he was signatory to subsequent sale made by vendee---Vendor had no legal right to commence proceedings for cancellation of mutations in favour of vendee etc. by filing such application for review---Vendor was privy to contract of sale, which sale was upheld when his suit challenging such sale was withdrawn by him---West Pakistan Land Reforms Regulations, 1959 and Land Reforms Regulations, 1972 had not provided any forum to entertain application from a private person for examining validity of a private alienation and declaring same to have caused reduction in prescribed subsistence or economic holding---Order of sanctioning of suit mutations having not been passed by Land Reforms Authorities, could not be challenged before them---Collector had ceased to have power of review at relevant time---Application for review of mutations was barred by more than eight years, thus, was not entertainable by Collector or Land Reforms Authorities---Application for review of mutations was barred by more than eight years, thus, could not be entertained by Collector or Land Reforms Authorities---Vendor had made neither application nor any request for condonation of such delay---Valuable rights had accrued to vendee and subsequent vendee, which could not be taken away on basis of time-barred application based on mala fide and dishonest conduct of vendor---Vendor was not entitled to cancellation of suit mutations as he had represented himself to vendee impliedly, if not explicitly, that transfer of sale was not illegal---Acceptance of vendor's plea would tantamount to grant him premium for his own fraud committed with vendee---District Collector could not exercise power of review under Land Reforms Regulations, 1959 and Land Reforms Regulation, 1972 or West Pakistan Land Revenue Act, 1967---Jurisdiction of civil court to entertain such suit was not barred---District Collector was not necessary party to suit as he had got no interest in suit-land or suit proceedings and such matter was between private parties and interest of Government was not involved---Vendor had not raised objection in written statement that Deputy Commissioner was a necessary party---Supreme Court dismissed appeal in circumstances.

Saifuddin v. Member, Federal Land Commission 1984 CLC 737 and Noor Samad v. Muhammad Aslam 1986 MLD 431 rel.

----Ss. 42 & 54---Transfer of Property Act (IV of 1882), S.52---Constitution of Pakistan (1973), Art.185(3)---Suit for declaration and permanent injunction---Sale of land---Attestation of mutation--Cancellation of mutation by Collector on vendor's application---Suit by vendee challenging such order of Collector dismissed by Trial Court and Appellate Court, but decreed by High Court in revision---Exchange of suit-land by vendor with land owned by intervener during pendency of revision in High Court---Petition for leave to appeal before Supreme Court filed by intervener and not by vendor---Validity---Vendor had substituted intervener for his own stead to contest case---Intervener had got no independent and separate right to claim an opportunity of hearing, contest or to be impleaded in proceedings as he had not entered into process of litigation through permission of Court---Intervener could not take contest of case by claiming an independent right to proceedings in view of provision of S.52 of Transfer of Property Act, 1882---Intervener had got no independent right to claim setting aside of impugned judgment and could not be allowed to do so---Intervener was claiming exchange and not sale of suit-land---Supreme Court dismissed petition for leave to appeal in circumstances.

Raja Muhammad Ibrahim Satti, Advocate Supreme Court for Appellant.

Taqi Ahmed Khan, Advocate Supreme Court for Respondent No. 1.

Respondents Nos.2 to 7: Ex parte.

Date of hearing: 22nd April, 2008.

SCMR 2008 SUPREME COURT 1280 #

2008 SCMR 1280

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi, Mian Hamid Farooq and Muhammad Farrukh Mahmud, JJ

PAKISTAN ATOMIC ENERGY COMMISSION and others----Appellants

Versus

LAND ACQUISITON COLLECTOR and others----Respondents

Civil Appeal No.954 of 2007, decided on 26th March, 2008.

(Against judgment/order, dated 18-11-1990 passed by the Lahore High Court, Rawalpindi Bench in I.C.A. No.19 of 1990 in Writ Petition No.1999 of 1986).

Land Acquisition Act (I of 1894)---

----Ss. 12-A, 18, 22-A & 50(2)---Constitution of Pakistan (1973), Art.199---Land acquisition for government department, local authority or company---Reference and appeal, right of---Scope---Acquiring agency could neither file reference against award nor appeal against decision made in reference, but could become a party in reference proceedings before Referee Court and file cross-objections for reduction of compensation awarded by Collector---Acquiring agency could neither file independent reference nor avail remedy of constitutional petition against award except to avail such legal remedy of becoming a party and filing cross-objections in reference filed by landowner against award---Collector under S.12-A of Land Acquisition Act, 1894 could not make any other change in award except correction of clerical mistake or arithmetical error-Principles.

Military Estate officer v. Assistant Commissioner-cum-Collector 1997 CLC 556; The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279; Behram Khan v. Military Estate Officer 1988 SCMR 1160; Iftikhar Hussain Shah v. Pakistan 1991 SCMR 2193; Land Acquisition Collector v. Muhammad Iqbal 1992 SCMR 1245; Pir Khan v. Military Estate Officer PLD 1987 SC 485 and Pakistan through Military Estate Officer v. Abdul Hayee Khan PLD 1995 SC 418 ref.

Pir Khan through his Legal Heirs v. Military Estate Officer, Abbottabad and others PLD 1987 SC 485 fol.

Raja Muhammad Ibrahim Satti, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants.

Muhammad Ilyas Sheikh, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondents.

Date of hearing: 26th March, 2008.

SCMR 2008 SUPREME COURT 1285 #

2008 S C M R 1285

[Supreme Court of Pakistan]

Present: Falak Sher, Mian Shakir Ullah Jan and Tassaduq Hussain Jillani, JJ

FARHAT AZEEM----Petitioner

Versus

ASMAT ULLAH and 6 others----Respondents

Criminal Petitions for Leave to Appeal Nos.433-L, 969-L and 432-L of 2002, decided on 15th June, 2005.

(On appeal from the judgment, dated 26-9-2002 passed by the Lahore High Court in Criminal Appeal No.447 of 1998, Criminal Review No.649 of 2000 and Murder Reference No.324 of 1998).

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was accorded to the accused for reappraisal of evidence which was based on the ocular testimony of prosecution witnesses who though neighbours of the deceased, were neither named in the F.I.R. as witnesses, nor they had informed the complainant about the occurrence and left him to lodge the F.I.R. without naming any accused.

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---Impugned judgment acquitting the accused was neither arbitrary nor perverse and was not against the weight of the prosecution evidence which qua the accused was not credit-worthy---Record did not indicate that the accused had remained fugitive from law before their conviction by Trial Court---Prosecution had failed to rebut the double presumption of innocence of accused after their acquittal---Leave to appeal was declined to complainant in circumstances.

Lalai alias Dindoo and another v. The State of U.P. AIR 1974 SC 2118; Mst. Hamida Bano v. Ashiq Hussain and State and 4 others PLD 1963 SC 19 and Abdul Subhan v. Raheem Bakhsh and another PLD 1994 SC 178 ref.

----S. 417---Constitution of Pakistan (1973), Art.185(3)---Appeal against acquittal---Onus on prosecution---Accused is presumed to be innocent and after his acquittal in trial or appeal he earns a double presumption of innocence and a heavy burden lies on the prosecution to rebut the said presumption.

Mian Fazle Mehmood, Senior Advocate Supreme Court (in Criminal P.L.A. No.433-L of 2002) and Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court for Petitioners (in Criminal P.L.A. No.832-L of 2002).

M. Akbar Tarar, Additional Advocate-General, Punjab for the State (in Criminal P.L.A. No.969-L of 2002).

Nemo for other Respondents.

Date of hearing: 15th June, 2005.

SCMR 2008 SUPREME COURT 1290 #

2008 S C M R 1290

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi, Muhammad Qaim Jan Khan and Zia Pervez, JJ

Agha MUZAMIL KHAN and others----Petitioners

Versus

CONSOLIDATION OFFICER, LAHORE and others----Respondent

Civil Petition No.1875 of 2005, decided on 12th February, 2008.

(Against the order/judgment, dated 18-4-2005 passed by the Lahore High Court, Lahore in I.C.A. No.30 of 2005).

West Pakistan Consolidation of Holdings Ordinance (VI of 1960)---

----Ss. 3 & 10---Law Reforms Ordinance (XII of 1972), S.3---Constitution of Pakistan (1973), Art.199---Constitutional petition before High Court---Intra-Court Appeal before High Court---Evacuee land purchased from non-muslim through registered sale-deed confirmed by Deputy Custodian and Custodian---Decree obtained by petitioners' predecessor in year 1948 on basis of such sale-deed---Incorporation of such sale in Jamabandi for year 1959-60---Petitioners seeking sanction of mutation of inheritance and incorporation of their names in Revenue Record on basis of mutation of sale and entries in such Jamabandi---Refusal of Consolidation Officer to sanction inheritance mutation during consolidation proceedings---Constitutional petition seeking direction to Consolidation Officer to correct entries in Revenue Record---Dismissal of constitutional petition and Intra-Court Appeal by Single Bench of High Court and Division Bench of High Court respectively---Validity---Evacuee land would continue its separate character and could not be mixed with non-evacuee land for purposes of consolidation---Consolidation Officer had acted illegally while refusing to incorporate entries in petitioners' name in column of ownership on the ground that during consolidation proceedings no new entry could be made in Revenue Record---Disputed land was not subject of consolidation scheme---Order of Revenue Officer was not immune from challenge during consolidation proceedings---Civil Court including High Court could exercise jurisdiction in respect of right of a person pending finalization of consolidation scheme---Right of appeal without confirmation of consolidation scheme would not accrue to aggrieved person under West Pakistan Consolidation of Holdings Ordinance, 1960---Constitutional petition and I.C.A. had been dismissed on wrong premises---Supreme Court set aside impugned judgments and remanded case to High Court for its decision afresh.

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

S.M. Masood, Advocate Supreme Court for Respondents Nos.23, 24 to 29.

Zaka-ur-Rehman, Advocate Supreme Court for Respondents Nos.15 to 26, 28 and 29.

Nemo for other Respondents.

Date of hearing: 12th February, 2008.

SCMR 2008 SUPREME COURT 1295 #

2008 S C M R 1295

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Syed Sakhi Hussain Bokhari, JJ

ZAHEER-UD-DIN alias JEER----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.523-L of 2007, decided on 28th January, 2008.

(On appeal from the judgment, dated 2-10-2007 passed by the Lahore High Court, Lahore in C.M.A. No.2 of 2007 in Criminal Appeal No.591 of 2007).

Criminal Procedure Code (V of 1898)---

----S. 426---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Constitution of Pakistan (1973), Art.185(3)---Suspension of sentence, refusal of---Trial Court, after regular trial observed that prosecution had proved its case beyond reasonable doubt---Deeper appreciation of evidence was not proper at that stage---Even otherwise huge quantity of Charas (12 Kgs. and 600 grams) and heroin (3 Kgs and 450 grams) was recovered from the petitioner---High Court, in circumstances had rightly rejected application of petitioner for suspension of sentence---In the absence of any illegality or infirmity in the order of the High Court, petition for leave to appeal was dismissed.

N.A. Butt, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record for Petitioner.

Ms. Yasmin Sehgal, D.P.-G. for the State.

SCMR 2008 SUPREME COURT 1296 #

2008 S C M R 1296

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

Civil Appeal No.1341 of 2005

MUHAMMAD SADIQ----Appellant

Versus

SUPERINTENDENT OF POLICE and others----Respondents

(On appeal from the judgment, dated 15-7-2003 in Appeal No.407 of 2002 passed by the Punjab Service Tribunal, Lahore).

Civil Appeal No.1648 of 2005

MUZAFFAR ALI----Appellant

Versus

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

(On appeal from the. judgment dated 2-10-2002 in Appeal No.2164 of 2001 passed by the Punjab Service Tribunal, Lahore).

Civil Appeal No.1700 of 2005

Rana DILBAR HUSSAIN----Appellant

Versus

SUPERINTENDENT OF POLICE (TRAFFIC), FAISALABAD and others----Respondents

(On appeal from the judgment dated 22-5-2002 in Appeal No.375 of 2001 passed by the Punjab Service Tribunal, Lahore).

Civil Appeal No.1880 of 2005

Syed ZAMIRUL HASSAN ZAIDI----Appellant

Versus

PROVINCIAL DIRECTOR, LOCAL FUND AUDIT, LAHORE and others----Respondents

(On appeal from the judgment dated 10-12-2002 in Appeal No.386 of 2002 passed by the Punjab Service Tribunal, Lahore).

Civil Appeal No.1893 of 2005

ZUBAIDA SAHAR----Appellant

Versus

SECRETARY, EDUCATION, GOVERNMENT OF PUNJAB and others----Respondents

(On appeal from the judgment dated 27-4-2002 in Appeal No.808 of 1998 passed by the Punjab Service Tribunal, Lahore).

Civil Appeal No.1923 of 2005

Dr. MUHAMMAD ISLAM ALI CHAUDHRY----Appellant

Versus

DIRECTOR POULTRY INSTITUTE, RAWALPINDI and others----Respondents

(On appeal from the judgment dated 11-7-2002 in Appeal No.530 of 1999 passed by the Punjab Service Tribunal, Lahore).

Civil Appeal No.17 of 2006

MUHAMMAD AZEEM----Appellant

Versus

SUPERINTENDENT OF POLICE, LAHORE CANTT. and others----Respondents

(On appeal from the judgment dated 12-8-2002 in Appeal No.604 of 2001 passed by the Punjab Service Tribunal, Lahore).

Civil Appeal No.20 of 2006

ARIF HUSSAIN----Appellant

Versus

D.I.-G. POLICE SARGODHA RANGE and others----Respondents

(On appeal from the judgment dated 24-11-2005 in Appeal No.435 of 2005 passed by the Punjab Service Tribunal, Lahore).

Civil Appeal No.21 of 2006

AKBAR ALI SHAHID----Appellant

Versus

ADDITIONAL DIRECTOR-GENERAL L.D.A. and another----Respondents

(On appeal from the judgment dated 20-7-2004 in Appeal No.1509 of 2003 passed by the Punjab Service Tribunal, Lahore).

C.P.L.A. No.2870-L of 2004

M. EHSAN KHAN SADOZAI----Petitioner

Versus

CHIEF SECRETARY, PUNJAB, CIVIL SECRETARIAT, LAHORE----Respondent

(On appeal from the judgment dated 17-7-2004 in Appeals Nos.512 to 516 of 2004 passed by the Punjab Service Tribunal, Lahore).

Civil Appeal No.1649 of 2005

SECRETARY HOUSING, URBAN DEVELOPMENT AND PUBLIC HEALTH, ENGINEERING DEPARTMENT, PUNJAB and others----Appellants

Versus

ZIA-UD-DIN----Respondent

(On appeal from the judgment dated 13-9-2005 in Appeal No.280 of 2004 passed by the Punjab Service Tribunal, Lahore).

Civil Appeal No.1680 of 2005

GOVERNMENT OF PUNJAB, LAHORE through Secretary Food and others----Appellants

Versus

Syed AKHTER RAZA ZAIDI----Respondent

(On appeal from the judgment dated 1-8-2003 in Appeal No.398 of 2003 passed by the Punjab Service Tribunal, Lahore).

Civil Appeal No.1894 of 2005

SECRETARY EDUCATION, GOVERNMENT OF PUNJAB and others----Appellants

Versus

ZUBAIDA SAHR----Respondent

(On appeal from the judgment dated 27-4-2002 in Appeal No.808 of 1998 passed by the Punjab Service Tribunal, Lahore).

Civil Appeal No.222 of 2006

CHIEF SECRETARY, PUNJAB CIVIL SECRETARIAT, LAHORE and others----Appellants

Versus

MUHAMMAD EHSAN KHAN SADOZAI----Respondent

(On appeal from the judgment dated 17-7-2004 in Appeals Nos.512 to 516 of 2004 passed by the Punjab Service Tribunal, Lahore).

Civil Appeal No.223 of 2006

CHIEF SECRETARY, PUNJAB CIVIL SECRETARIAT, LAHORE and others----Appellants

Versus

Malik SHAUKAT HUSSAIN----Respondent

(On appeal from the judgment dated 17-7-2004 in Appeals Nos.512 to 516 of 2004 passed by the Punjab Service Tribunal, Lahore).

Civil Appeal No.224 of 2006

CHIEF SECRETARY, PUNJAB, CIVIL SECRETARIAT, LAHORE and others----Appellants

Versus

TANVEER ELAHI----Respondent

(On appeal from the judgment dated 17-7-2004 in Appeals Nos.512 to 516 of 2004 passed by the Punjab Service Tribunal, Lahore).

C.P.L.A. No.2947-L of 2003

SECRETARY TO GOVERNMENT OF PUNJAB FOOD DEPARTMENT and another----Petitioners

Versus

Ch. IRSHAD-U L-HAQ----Respondent

(On appeal from the judgment dated 12-8-2003 in Appeal No.1082 of 2003 passed by the Punjab Service Tribunal, Lahore).

Civil Appeals Nos.1341, 1648, 1700, 1880, 1893, 1923 of 2005, Civil Appeals Nos.17, 20, 21 of 2006, C.P.L.A. No.2870-L of 2004, Civil Appeals Nos.1649, 1680, 1894 of 2005, Civil Appeals. Nos.222, 223, 224 of 2006 and C.P.L.A. No.2947-L of 2003, decided on 19th May, 2008.

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

---R. 4(1)(b)(i)---Fundamental Rules, R.29---Departmental authority though while inflicting punishment on a civil servant to a lower post or time scale or to a lower stage in a time scale, was competent to impose any sort of penalty permissible under R.4(1)(b)(i) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 yet same could not be inflicted in disregard of Fundamental Rule 29, which provided that if a Government servant, on account of misconduct or inefficiency, was reduced to a lower grade or post, or to a lower stage in his time scale, then the Authority ordering such reduction shall state the period for which it shall be effective and whether, on restoration, it shall operate to postpone future increments and if so, to what extent---Competent authority, in the present cases, while inflicting punishment on the employees had not specified or fixed time for which the penalty had been imposed---Such orders, therefore, to that extent, were not sustainable---Reduction to a "lower post" did not mean reduction to the "lowest post"---Rule 4(1)(b)(i) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 provided reduction to "a" lower post or time scale or to a lower stage in a time scale, which implied that reduction to a lower post should normally be limited to one stage only and not beyond that---Use of word "a" in the provision was significant because it being multifaceted denoted not only "one" or "any" but at times was used in the plural sense as well and therefore, even if taken in its ordinary dictionary meanings, it might mean "one" when one is intended and it might mean anyone of a greater number---Principles.

Government of N.-W.F.P and others v. Farman Ali and others 2005 SCMR 774; Secretary (Schools), Government of the Punjab and others v. Muhammad Sharif Tirmazi 2004 SCMR 74; Tanvir Ahmed v. Chief Secretary, Government of Punjab, Lahore 2004 SCMR 647; Government of Pakistan through Secretary, Establishment Division, Islamabad v. Muhammad Umer Morio 2005 SCMR 436; Muhammad Younus v. Secretary, Ministry of Communications and others 1993 SCMR 122 and Zafar Yasin v. Prime Minister of Pakistan 2002 SCMR 775 ref.

Mian Mehmood Hussain, Advocate Supreme Court for Appellant (in Civil Appeal No.1341 of 2005).

Ms. Afshan Ghazanfar, A.A.-G. Punjab, and M. Arshad Inspector, Legal, Okara for Respondents (in Civil Appeal No.1341 of 2005).

Mian Mehmood Hussain, Advocate Supreme Court for Appellant (in Civil Appeal No.1648 of 2005).

Ms. Afshan Ghazanfar, A.A.-G. Punjab, and Jamshed Farooq, D.S.P. Legal, Gujrat for Respondents (in Civil Appeal No.1648 of 2005).

Mian Mehmood Hussain, Advocate Supreme Court for Appellant (in Civil Appeal No.1700 of 2005).

Ms. Afshan Ghazanfar, A.A.-G. Punjab, Rai Allah Ditta, Inspector for Respondents (in Civil Appeal No.1700 of 2005).

Mian Mehmood Hussain, Advocate Supreme Court for Appellant (in Civil Appeal No.1880 of 2005).

Ms. Afshan Ghazanfar, A.A.-G. Punjab for Respondents (in Civil Appeal No.1880 of 2005).

Mian Mehmood Hussain, Advocate Supreme Court for Appellant (in Civil Appeal No.1893 of 2005).

Ms. Afshan Ghazanfar, A.A.-G. Punjab for Respondents (in Civil Appeal No.1893 of 2005).

Nemo for Appellant (in Civil Appeal No.1923 of 2005).

Ms. Afshan Ghazanfar, A.A.-G. Punjab for Respondents (in Civil Appeal No.1923 of 2005).

Mian Mehmood Hussain, Advocate Supreme Court for Appellant (in Civil Appeal No.17 of 2006).

Ms. Afshan Ghazanfar, A.A.-G. Punjab for Respondents (in Civil Appeal No.17 of 2006).

Appellant in person (in Civil Appeal No.20 of 2006).

Ms. Afshan Ghazanfar, A.A.-G. Punjab and M. Tafazzal, Inspector Legal for Respondents (in Civil Appeal No.20 of 2006).

Appellant in person (in Civil Appeal No.21 of 2006).

Ms. Afshan Ghazanfar, A.A.-G. Punjab for Respondents (in Civil Appeal No.21 of 2006).

Nemo for Petitioner (in C.P.L.A. No.2870 of 2004).

Ms. Afshan Ghazanfar, A.A.-G. Punjab for Respondent (in C.P.L.A. No.2870 of 2004).

Ms. Afshan Ghazanfar, A.A.-G. Punjab for Appellants (in Civil Appeal No.1649 of 2005).

G.N. Gohar, Advocate-on-Record for Respondent (in Civil Appeal No.1649 of 2005).

Ms. Afshan Ghazanfar, A.A.-G. Punjab for Appellants (in Civil Appeal No.1680 of 2005).

Nemo for Respondents (in Civil Appeal No.1680 of 2005).

Ms. Afshan Ghazanfar, A.A.-G. Punjab for Appellants (in Civil Appeal No.1894 of 2005).

Mian Mehmood Hussain, Advocate Supreme Court for Respondent (in Civil Appeal No.1894 of 2005).

Ms. Afshan Ghazanfar, A.A.-G. Punjab S. Riaz Hussain, Legal Officer for Appellants (in Civil Appeal No.222 of 2006).

Arshad Ali Chaudhry, Advocate-on-Record for Respondent (in Civil Appeal No.222 of 2006).

Ms. Afshan Ghazanfar, A.A.-G. Punjab for Appellants (in Civil Appeal No.223 of 2006).

Mian Mehmood Hussain, Advocate Supreme Court for Respondent (in Civil Appeal No.223 of 2006).

Ms. Afshan Ghazanfar, A.A.-G. Punjab for Appellants (in Civil Appeal No.224 of 2006).

Mian Mehmood Hussain, Advocate Supreme Court for Respondent (in Civil Appeal No.224 of 2006).

Ms. Afshan Ghazanfar, A.A.-G. Punjab for Appellants (in C.P.L.A. No.2947-L of 2003).

Respondent in person (in C.P.L.A. No.2947 of 2003).

Date of hearing: 19th May, 2008.

SCMR 2008 SUPREME COURT 1316 #

2008 S C M R 1316

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad and Muhammad Moosa K. Leghari, JJ

MUZAFFAR AYAZ ABID BALOCH----Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU, SINDH----Respondent

Civil Petition No.566-K of 2007, decided on 26th February, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Constitution of Pakistan (1973), Art.185(3)---Bail, grant of----Petitioner had called in question order passed by High Court whereby his petition for grant of bail was dismissed---No allegation was on record that any loss was caused to the Bank---Only allegation levelled against the petitioner was that he had prepared the incorrect deposit slip through which the pay orders were deposited in the allegedly fake account---Perusal of the order of the High Court itself revealed that statements of the witnesses under section 161, Cr.P.C. were not recorded in a proper manner---Apparently the prosecution was not in possession of convincing evidence to refuse bail of the petitioner---Prosecution had yet to prove the element of mens rea during trial, more particularly when the evidence with regard to causing loss to the Bank had yet to be brought on record---Besides, in the departmental inquiry held by the Bank Authorities, petitioner had claimed to have been, declared innocent and that the F.I.A. also stopped/closed the inquiry in the matter---Petitioner, in circumstances was entitled to grant of bail---Bail was granted to the petitioner, in circumstances.

Shaukat Hayat, Advocate Supreme Court.

Suleman Habibullah, Advocate-on-Record.

Malik Danish, P.-.G. Sindh.

M. Siddiq Mirza, Additional A.D.P.-G. Sindh.

Date of hearing: 4th February, 2008.

SCMR 2008 SUPREME COURT 1318 #

2008 S C M R 1318

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Tassadduq Hussain Jillani, JJ

ABDUL SATTAR and others---Petitioners

Versus

MUHAMMAD ASHRAF and others---Respondents

Civil Petition No. 4030-L of 2003, decided on 6th August, 2004.

(On appeal from judgment, dated 12-11-2002 of the Lahore High Court, Multan Bench, passed in Civil Revision No.1213/D of 2001).

Islamic Law---

----Gift---Gift through mutation---Suit by alleged donor calling in question validity of such gift and mutation by denying to have made gift---Burden of proof---Donee would discharge onus of validity of gift and mutation in his favour---Witnesses mentioned in gift mutation were not produced in evidence by donee---Donor produced in evidence one witness recorded in mutation, who stated that donor had not given any land to donee nor did he identify him at relevant time; and that donee had got mutation sanctioned in a fraudulent manner---Donee did not produce any Revenue Official/Officer concerned with sanction of mutation to prove same---Suit filed by donor was decreed in circumstances.

Sardar Mohabbat Ali Dogar, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 6th August, 2004.

SCMR 2008 SUPREME COURT 1320 #

2008 S C M R 1320

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Sardar Muhammad Raza Khan and Karamat Nazir Bhandari, JJ

ASGHAR ALI---Appellant

Versus

MUHAMMAD ILYAS DOGAR and others---Respondents

Criminal Appeal No.79 of 1998, decided on 5th November, 2003.

(On appeal from the judgment dated 13-8-1997 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeals Nos. 122, 123 and 124 of 1994).

Penal Code (XLV of 1860)---

----Ss. 302(b)/34, 459/34 & 394---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.20---Constitution of Pakistan (1973), Art.185---Appeal against acquittal---Police Officer while writing F.I.R. admittedly had left numerous spaces as blank with regard to the parentage, caste and village of the accused---F.I.R., thus, was recorded much after substantial investigation---Some manipulation and alteration had admittedly been done by the doctor who had changed the time of the victim's arrival at the hospital as well as the duration between injury and examination or injury and death---Name and the presence of the wife of the deceased, who was the natural witness being the inmate of the house, was not mentioned in the F.I.R.---Presence of eye-witness at the scene of occurrence and the identity of accused were highly doubtful---Recovery of the shoes of accused was a clear padding in the case which had been planted subsequently, after having known the size of one of the accused---High Court through a well-reasoned judgment had rightly acquitted the accused---Appeal was dismissed in circumstances.

Sardar Muhammad Ishaque Khan, Senior Advocate Supreme Court for Appellant.

M. Ibadur Rehman Lodhi, Advocate Supreme Court for Respondent No.1.

Muhammad Zaman Bhatti, Advocate Supreme Court for Respondent No.3.

M. Munir Peracha, Advocate Supreme Court for respondents Nos.2 and 4.

Dil Muhammad Tarar, Advocate Supreme Court for the State.

Date of hearing: 5th November, 2003.

SCMR 2008 SUPREME COURT 1324 #

2008 S C M R 1324

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Tassaduq Hussain Jillani, JJ

ZEB-UN-NISA and others----Petitioners

Versus

MUHAMMAD ASLAM and others----Respondents

Civil Petition No.1290-L of 2004, decided on 3rd September, 2004.

(On appeal from the judgment/order, dated 21-1-2004 passed by Lahore High Court, Lahore in Writ Petition No.10637 of 2003).

West Pakistan Family Courts Act (XXX of 1964)---

----Ss. 5 & Sched. 14---Constitution of Pakistan (1973), Art. 185(3)---Suit for maintenance---Both Family Court and Appellate Court had held minors entitled to get maintenance allowance from father at the rate of Rs.5.000 per month each from the date of filing of suit till the operation of law and dismissed suit to the extent of their mother---High Court on filing constitutional petition by father against judgment of two Courts below reduced rate of maintenance allowance from Rs.5,000 to that of Rs.3,000---Minors had challenged judgment of High Court---Questions to be considered in petition for leave to appeal were as to whether in view of evidence available on record, increase in cost of life prevailing, both Courts below had rightly granted maintenance to the petitioners to the tune of Rs.5,000 per month each and that whether High Court had reduced maintenance without any justification from Rs.5,000 to Rs.3,000 when earning of the father of minors was Rs.40,000 per month---Leave to appeal was granted to examine said questions.

General Manager Pearl Continental Hotel v. Farhat Iqbal PLD 2003 SC 952 ref.

Mehdi Khan Chohan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 3rd September, 2004.

SCMR 2008 SUPREME COURT 1326 #

2008 S C M R 1326

[Supreme Court of Pakistan]

Present: Javed Iqbal and Sardar Muhammad Raza Khan, JJ

ABDUL GHAFOOR and another---Appellants/Petitioners

Versus

Mst. HASSAN BIBI and others---Respondents

Civil Appeal No.355 of 1999 along with Civil Petition No.456-L of 1999, decided on 14th November, 2003.

(On appeal from the judgment dated 26-1-1999 of the Lahore High Court, Lahore, passed in F.A.O. No.177 of 1997).

Industrial Development Bank of Pakistan Ordinance (XXXI of 1961)---

----S. 39---Civil Procedure Code (V of 1908), O.XXI, Rr.58, 89 & O.XXII, R.4---Constitution of Pakistan (1973), Art.185---Suit for recovery of loan amount---Defendant died during pendency of suit---Bank did not implead all the legal heirs of deceased defendant, but impleaded only his two sons---Suit was decreed ex parte and mortgaged property was put to auction---Respondent (widow of deceased defendant) after coming to know of ex parte decree made application for deposit of decretal amount---Trial Court without deciding such application confirmed auction, but same was set aside by, High Court---Validity---No appeal for setting aside ex parte decree had been filed---Decretal amount along with 5% of purchase money had not been deposited---Bank had failed to bring legal heirs of deceased defendant on record, which was a mandatory requirement of law, thus, had deprived his legal heirs to defend the suit properly---Non-impleadment of respondent and no decision on such application had caused serious prejudice to her (the widow)---Such was a serious illegality, which could not be ignored---Sale in such circumstances could not be confirmed---Provisions of O.XXI, R.89, C.P.C., could not be made applicable as such application remained undecided---Impugned judgment was well-reasoned and unexceptionable---Supreme Court dismissed appeal and petition filed by Bank.

Mian Nusratullah, Senior Advocate Supreme Court and M. Ozair Chughtai, Advocate-on-Record (absent) for Appellant.

M.A. Zafar, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Petitioner.

Ch. Abdul Wahid, Advocate Supreme Court for Respondents.

Date of hearing: 25th September, 2003.

SCMR 2008 SUPREME COURT 1330 #

2008 S C M R 1330

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Falak Sher, JJ

AHMAD and others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Civil Petition No. 866-L of 2002, decided on 28th July, 2004.

(On appeal from the judgment, dated 94-2002 passed by the Lahore High Court, Multan Bench in Writ Petition No.9407/2001).

Civil Procedure Code (V of 1908)---

----O.XVI, Rr.1(3), 2 & XVII, R.3---Non deposit of process fee and diet money of witnesses required by defendant to be summoned through Court---Effect---Trial Court in such circumstances would have no option, but to close evidence of defendant.

Syed Zulfiqar Ali Bukhari, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 28th July, 2004.

SCMR 2008 SUPREME COURT 1331 #

2008 S C M R 1331

[Supreme Court of Pakistan]

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

MUHAMMAD KHAN----Petitioner

Versus

THE STATE and others----Respondents

Criminal Petition for Leave to Appeal No.71-L of 2005, decided on 19th July, 2005.

(On appeal from order of Lahore High Court, dated 11-1-2005 passed in C.M. No.1 of 2004 in Criminal Appeal No.1675 of 2004).

Criminal Procedure Code (V of 1898)---

----S. 426---Surrender of Illicit Arms Act (XXI of 1991), S.7(b) & (c)--Constitution of Pakistan (1973), Art.185(3)---Suspension of sentence---Appeal filed by the accused being still pending disposal in High Court, Supreme Court declined to give any finding on the questions raised on behalf of accused, lest the same might prejudice the fate of the said appeal---Accused, who was in custody for over an year, however, had made out a case which warranted suspension of his sentences---Petition was consequently converted into an appeal which was allowed---Sentences awarded to accused were suspended and he was directed to be released on bail.

1994 PCr.LJ 1446 and 2000 YLR 12 ref.

Pir Syed M. Kaleem Khursheed, Advocate Supreme Court and Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Petitioner.

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

Nemo for other Respondents.

Date of hearing: 19th July, 2005.

SCMR 2008 SUPREME COURT 1333 #

2008 S C M R 1333

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Muhammad Nawaz Abbasi, JJ

BASHIR AHMED and others---Petitioners

Versus

GHULAM MUHAMMAD and others---Respondents

C. P. L. A. No.2727-L of 2000, decided on 27th August, 2004.

(On appeal from judgment of Lahore High Court, Lahore dated 3-11-2000 passed in R.S.A. No.185 of 1986).

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

----S.15---Pre-emption suit---Superior right of pre-emption---One vendee claimed to be tenant of suit land while other claimed to be owner in the estate---Both vendees claimed to have paid price for their respective shares separately---Vendee/tenant failed to establish his claim, while other vendee was found to be owner in the Estate---Trial Court decreed suit after discarding plea as to divisibility of sale transaction---First and second appeals filed by vendees were dismissed by Appellate Court and High Court respectively---Validity---High Court had rightly not interfered with findings of Trial Court regarding such plea for not having challenged same before Appellate Court---Vendees had lost their superior right of pre-emption in land---Supreme Court dismissed petition for leave to appeal.

(b) Pre-emption---

----Sinker, plea of---Such plea neither expressly nor impliedly raised before forums below---Effect---Supreme Court declined to permit defendant to raise such plea for the first time.

Chaudhry Mushtaq Ahmad Khan, Senior Advocate Supreme Court for Petitioners.

Mian Ghulam Rasool Advocate Supreme Court for Respondents Nos.1 to 4.

Nemo for Respondents Nos.5 to 23.

Date of hearing: 27th August, 2004.

SCMR 2008 SUPREME COURT 1335 #

2008 S C M R 1335

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Falak Sher, JJ

MUHAMMAD ARSHAD----Petitioner

Versus

MUHAMMAD JAHANZEB KHAN----Respondent

Civil Petition No.246-L of 2004, decided on 30th July, 2004.

(On appeal against the judgment, dated 15-6-2004 passed by the Lahore High Court, Multan Bench in R.F.A. No.287 of 2002).

Civil Procedure Code (V of 1908)---

----O. XVII, R.3---Constitution of Pakistan (1973), Art. 185(3)---Closing of evidence---Contentions of petitioner were that case having not been adjourned with direction to petitioner to produce evidence, on following date Trial Court had no occasion to proceed against him under O. XVII, R.3, C.P.C. and that even if the Court had decided to close evidence of petitioner, it had a legal obligation to give opportunity to petitioner of recording his own statement---Leave to appeal was granted to consider the contentions---Execution proceedings, pending decision of appeal arising out of petition, would remain suspended and security, which had already been furnished by petitioner, while obtaining leave to appeal, would remain intact till decision of appeal for the purpose of satisfying the decree.

Ghulam Rasool v. Rai Ghulam Mustafa and others 1993 SCMR 2026 and Gul Hassan & Co. v. Allied Bank of Pakistan 1996 SCMR 237 ref.

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

Nemo for Respondent.

Date of hearing: 30th July, 2004.

SCMR 2008 SUPREME COURT 1337 #

2008 SCMR 1337

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and Falak Sher, JJ

AKBAR ALI alias SAHIB----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.662-L of 2004, decided on 12th July, 2005.

(On appeal from the judgment/order of the Lahore High Court, Lahore, dated .18-11-2004 passed in Criminal Appeal No.942 of 2000 and Murder Reference No.372 of 2000).

Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to accused by the Supreme Court to reappraise the evidence in order to determine whether the conviction and the sentence awarded to him had proceeded on the established principles of appraisement of evidence.

Syed Ihtesham Qadir, Advocate Supreme Court with M.A. Qureshi, Advocate-on-Record for Petitioners.

Iqbal Muhammad Awan, Advocate Supreme Court with Ch. Muhammad Hanif Zahid, Advocate-on-Record for the Complainant.

Nemo for the State.

Date of hearing: 12th July, 2005.

SCMR 2008 SUPREME COURT 1339 #

2008 SCMR 1339

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Tassaduq Hussain Jillani, JJ

DOST MUHAMMAD (deceased) through L.Rs.---Petitioners

Versus

MUHAMMAD YOUSAF and others---Respondents

Civil Petition No. 1563-L of 2003, decided on 3rd August, 2004.

(On appeal from judgment, dated 21-4-2003, passed by a learned Single Judge of the Lahore High Court, Lahore in R.S.A. No.8 of 1993).

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

----Ss. 96, 100 & 115---Point raised, in memorandum of appeal or revision, but not pressed at the time of hearing of appeal or revision---Effect---Ordinarily, such point would be deemed to have been abandoned.

Fazal Eiahi v. Dewan Ali (deceased) through L.Rs. and others 1984 SCMR 1404; Fayyaz Hussain v. Akbar Hussain and others 2004 SCMR 964 and Ghulam Muhammad and others v. Malik Abdul Qadir Khan and others PLD 1983 SC 68 ref.

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

----O.XXXII, R.3--Appointment of guardian of minor defendant---Minor was originally sued through his father as guardian-ad-litem---Court later on appointed its Reader as guardian of minor---Minor submitted his reply and participated in proceedings---Held: Interest of minor in circumstances, had not been jeopardized for non-appointment of guardian-ad-litem.

----Ss.96 & 100---Constitution of Pakistan (1973), Art.185(3)---Points involving factual controversy abandoned before First Appellate Court and High Court---Effect---Such points would not be permitted to be raised before Supreme Court.

Sh. Khizar Hayat, Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record for Petitioners.

Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Respondents.

Date of hearing: 3rd August, 2004.

SCMR 2008 SUPREME COURT 1341 #

2008 SCMR 1341

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Tassadduq Hussain Jillani, JJ

Mst. BILQEES MAI---Petitioner

Versus

ALLAH BAKHSH and others---Respondents

Civil Petition No. 3104-L of 2001, decided on 26th August, 2004.

(On appeal from the order, dated 16-8-2001 passed by Lahore High Court, Multan Bench, Multan in Civil Revision No.774-D of 2001).

Specific Relief Act (I of 1877)---

----S.42---West Pakistan Rules under Muslim Family Laws Ordinance, 1961, R.8, Form-II---Constitution of Pakistan (1973), Art.185(3)--Suit for declaration---Plaintiff claimed ownership of properties mentioned in Columns Nos.13 to 16 of Nikahnama being dower agreed upon by defendant (father of her husband)---Defendant also filed suit alleging such entries to be result of fraud---Trial Court consolidated both suits---Courts below dismissed plaintiff's suit and decreed defendant's suit, which decrees were maintained in revision by High Court---Validity---Original Nikahnama produced before Supreme Court through Nikah Khawan clearly indicated that there was manipulation in entries of columns Nos. 13 to 16 of Nikahnama---Courts below had rightly non-suited plaintiff by recording concurrent findings of fact---Supreme Court dismissed petition and refused leave to appeal.

Khadim Nadeem Malik, Advocate Supreme Court and Muhamud-ul-Islam, Advocate-on-Record for Petitioner.

Ch. Naseer Ahmad Bhutta, Advocate Supreme Court for Respondents.

Date of hearing: 26th August, 2004.

SCMR 2008 SUPREME COURT 1344 #

2005 S C M R 1344

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Faqir Muhammad Khokhar, JJ

PROVINCE OF THE PUNJAB and others---Petitioners

Versus

MUJTABA KHANUM---Respondent

Civil Petition No.329 of 2002, decided on 13th November, 2003.

(On appeal from order dated 11-12-2001 of the Lahore High Court, Rawalpindi Bench passed in Writ Petition No.31 of 1992).

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

----S. 2---Constitution of Pakistan (1973), Art.185(3)---Demarcation of evacuee property after repeal of Evacuee Laws---Jurisdiction of Deputy Commissioner/Tehsildar---Property in dispute was allotted to respondent in the year 1959 and Permanent Transfer Deed was also issued in her favour---In year 1991, Deputy Commissioner passed an order to re-demarcate the property and Tehsildar prepared demarcation report whereby original area in possession of the respondent was reduced---Order of re-demarcation was set aside by High Court in exercise of Constitutional jurisdiction---Validity---Deputy Commissioner or Tehsildar were not shown to be the Notified Officers after repeal of Evacuee Laws---Demarcation of the property in dispute was rightly found by High Court to' be without lawful authority---Order passed by Notified Officer already made in favour of respondent had attained finality---Judgment passed by High Court did not suffer from any legal infirmity so as to call for any interference by Supreme Court---Leave to appeal was refused.

Ms. Afshan Ghazanfar, Assistant Advocate-General Punjab for Petitioners.

Amir Alam Khan, Advocate Supreme Court for Respondent.

Date of hearing: 13th November, 2003.

SCMR 2008 SUPREME COURT 1346 #

2008 S C M R 1346

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and M. Javed Buttar, JJ

TAHIR DIN and others----Petitioners

Versus

ZAFAR ULLAH KHAN and others----Respondents

C.P.L.A. No.656-L of 2000, decided on 18th November, 2004.

(On appeal from the judgment, dated 1-2-2000 of the Lahore High Court, Multan Bench, passed in E.S.A. No.27 of 1972).

Civil Procedure Code (V of 1908)---

----S. 152, O.I, R.10, O.XX, R.14(1)(b) & O.XXI, R.35---Constitution of Pakistan (1973), Art.185(3)---Decree in pre-emption suit---Deposit of decretal amount within stipulated time---Application by decree-holders for amendment of decree as amount payable thereunder was not correctly calculated---Trial Court, without notice to decree-holders, accepted application with directions to deposit extra amount within one month of receipt of notice of its order---Decree-holders on getting knowledge deposited extra amount and then filed execution application---Objection by judgment-debtor that extra amount was not deposited within stipulated time---Plea of decree-holders was that they were minors and a report on such notice had been got fabricated showing refusal of their next friend to receive notice; and that they, on getting knowledge of notice, deposited extra amount in Court---Executing Court, after framing issues, recorded evidence and dismissed such objection---First appeal filed by judgment-debtor was dismissed by appellate Court---Application by transferee of suit-land, after passing of decree to be impleaded as party in second appeal filed by judgment-debtor---High Court dismissed second appeal and application of transferee---Validity---Service of notice relied upon by judgment-debtor had not been sufficiently proved through reliable evidence---Judgment-debtor had failed to prove non-deposit of extra amount by decree-holders within stipulated time---No misreading or non-reading of evidence was found in concurrent findings of three Courts below---Supreme Court dismissed petition and refused leave to appeal.

Zafar Iqbal Chaudhry, Advocate Supreme Court for Petitioners.

Ch. Mushtaq Ahmad Khan Senior Advocate Supreme Court for Respondents Nos. 1-4.

Date of hearing: 18th November, 2004.

SCMR 2008 SUPREME COURT 1349 #

2008 S C M R 1349

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Hamid Ali Mirza and Falak Sher, JJ

PROVINCE OF PUNJAB through Director Food, Punjab, Lahore and others---Petitioners

Versus

FAROOQ AHMAD REHMAN---Respondent

Civil Petition No. 1134-L of 2002, decided on 13th July, 2004.

(On appeal against the judgment, dated 2-2-2002 passed by the Punjab Service Tribunal, Lahore in Appeal No.1750 of 2000).

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

----Rr.5, 6(4), 7-A & 8---Award of punishment by Competent Authority while disagreeing with report of Inquiry Officer endorsed by Authorised Officer exonerating civil servant from charge---Validity---Competent Authority, if not satisfied with report of Inquiry Officer and recommendations of Authorised Officer, might direct for fresh inquiry after assigning reasons therefor---Otherwise, Competent Authority would have no independent jurisdiction to award punishment.

Government of Punjab through Secretary, Livestock and Dairy Development and another v. Abdul Sattar 1990 SCMR 995 fol.

Muhammad Sharif Butt, Advocate Supreme Court and Rao Muhammad Yusuf Khan, Advocate-on-Record (absent) for Petitioners.

Nemo for Respondent.

Date of hearing: 13th July, 2004.

SCMR 2008 SUPREME COURT 1352 #

2008 S C M R 1352

[Supreme Court of Pakistan]

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

GHULAM ABBAS----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.130-L of 2004, decided on 16th June, 2005.

(On appeal from the judgment of Lahore High Court, Lahore, dated 13-1-2004 passed in Criminal Appeal No.984 of 1999 and Murder Reference No.419 of 1999).

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Eyewitnesses were most natural witnesses of the occurrence who, while deposing in a straightforward manner, had corroborated each other on each material point and were found truthful and confidence-inspiring by the Courts below---Ocular testimony was supported by medical evidence in respect of nature and seat of injuries on the person of the deceased---Minor discrepancy in the statements of eye-witnesses qua the number of injuries had no material effect on the truthfulness of their evidence---Absence or weakness of motive could not be essentially considered for acquittal or lesser punishment of accused if the charge stood proved on the basis of other evidence---Direct evidence of eye-witnesses of unimpeachable character and free from doubt coupled with the medical evidence was sufficient to prove the charge against the accused---Leave to appeal was refused to accused in circumstances.

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

----S. 302(b)-Appreciation of evidence---Motive---Principles---Motive being not an essential component of crime, the weakness or absence of motive is not a factor to be essentially considered for the purpose of acquittal or lesser punishment, if on the basis of other evidence the charge is proved.

----S. 302(b)---Sentence---Lesser sentence to be awarded only if strong mitigating circumstance available---Alternate sentence of imprisonment for life provided under S.302(b) is not mere a question of discretion of the Court, rather it can be awarded only in a case of strong mitigating or extenuating circumstances.

Shahid Mobeen, Advocate Supreme Court with Mahmood A. Qureshi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 16th June, 2005.

SCMR 2008 SUPREME COURT 1355 #

2008 S C M R 1355

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

ASAD NAVEED alias DANGAR---Petitioner

Versus

THE STATE---Respondent

Crl. Petitions Nos.660 and 661-L of 2002, decided on 23rd December, 2003.

(On appeal from the judgment dated 8-7-2002 of the Lahore High Court passed in Crl. As. Nos.377, 336 of 2001 and Crl. Revision No.186 of 2001).

Penal Code (XLV of 1860)---

----S. 302(c)---Constitution of Pakistan (1973), Art.185(3)---Case being fit for reappraisal of evidence, leave to appeal was granted by Supreme Court to accused seeking acquittal in his petition and also to the complainant in his petition for enhancement of sentence.

Mian Muhammad Sikandar Hayat, Advocate Supreme Court for Petitioner (in Criminal Petition No.660-L of 2002).

Muhammad Iqbal Bhatti, Advocate Supreme Court for Petitioner (in Criminal Petition No.661-L of 2002).

Date of hearing: 23rd December, 2003.

SCMR 2008 SUPREME COURT 1357 #

2008 S C M R 1357

[Supreme Court of Pakistan]

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

LAHORE DEVELOPMENT AUTHORITY through Director-General---Appellant

Versus

KHALID JAVED MAKHDOOM---Respondent

Civil Appeal No.1425 of 1998, decided on 4th December, 2003

(On appeal from the judgment/order dated 31-10-1996 passed by the Lahore High Court in C.R. No.2506 of 1996).

Specific Relief Act (I of 1877)---

----S. 42---Constitution of Pakistan (1973), Art.185(3)---Suit for declaration---Plaintiff raised construction on suit-land, which was a specific portion purchased by him and demarcated through a "Tatima" prepared by Revenue Authority---Authority acquired suit-land for its scheme, but refused to grant to plaintiff exemption to the extent of full area as compensation on the ground that same was a vacant site---Courts below concurrently decreed plaintiff's suit finding that for having raised construction on suit-land, he was entitled to exemption as a whole under such scheme as a matter of right---Such findings of Courts below not suffering from misreading, misconstruction or non-consideration of any material piece of evidence, Supreme Court dismissed appeal.

Muhammad Rashid Ahmad, Advocate Supreme Court for Appellant.

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

Date of hearing: 4th December, 2003.

SCMR 2008 SUPREME COURT 1359 #

2008 S C M R 1359

[Supreme Court of Pakistan]

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

RAB NAWAZ and others----Petitioners

Versus

Mst. FAZEELAT BIBI and others----Respondents

Civil Petition No.2413-L of 2000, decided on 20th April, 2005.

(On appeal from the judgment, dated 23-6-2000 passed by Lahore High Court, Lahore in Civil Revision No.2966-D of 1996).

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

----S. 13---Pre-emption suit---Talb-i-Muwathibat---Expression of such Talb and its communication to vendor not proved during trial---Effect---Expression of Talb was one of the essential elements to establish right of pre-emption---Suit was dismissed in circumstances.

Muhammad Farooq Qureshi (Chishti), Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Petitioners.

Malik Noor M. Awan, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Respondents.

Date of hearing: 20th April, 2005.

SCMR 2008 SUPREME COURT 1362 #

2008 S C M R 1362

[Supreme Court of Pakistan]

Present: Javed Iqbal and Karamat Nazir Bhandari , JJ

GOVERNMENT OF PUNJAB through Secretary Schools Education Department, Lahore and others---Petitioners

Versus

TAUQEER MAZHAR BUKHARI---Respondent

Civil Petition No.2204-L of 2002, decided on 4th June, 2003.

(On appeal from the judgment/order dated 19-4-2002 passed by Punjab Service Tribunal, Lahore in Appeal No.1789 of 2001).

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

----R. 4(1)(b)(i)---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Failure to conduct regular inquiry---Altering of penalty by Service Tribunal---Civil servant was a school teacher and was dismissed from service on the charge of facilitating students in examination by unfair means---No specific charge of cheating or copying against any particular student was levelled---Neither any answer sheet was taken by the examiner/invigilator nor any action was initiated against any student for cheating or copying---No evidence had come on record showing that some undue interference was made by the civil servant---Dismissal order passed by the authorities was altered by Service Tribunal to that of reduction in pay in three stages---Validity---Regular inquiry should have been conducted to unveil the reality---Major penalty of removal from service should have not been imposed being too harsh in view of the nature of allegations which could not be substantiated without adducing any cogent or concrete evidence---Service Tribunal had dilated upon all contentions as agitated before Supreme Court in comprehensive manner---No question of law of public importance was involved---Judgment passed by Service Tribunal being well-based and free from any illegality did not warrant interference---Leave to appeal was refused.

M. Sharif Butt, Advocate Supreme Court and Rao M. Yusuf Khan, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 4th June, 2003.

SCMR 2008 SUPREME COURT 1365 #

2008 S C M R 1365

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday and M. Javed Buttar, JJ

GULZAR AHMED alias GULLU----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.389-L of 2004, decided on 25th May, 2005.

(On appeal from the judgment, dated 17-2-2003 of the Lahore High Court, Lahore passed in Criminal Appeal No.225 of 1998 and Murder Reference No.353 of 1998).

Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal, grant of---High Court had reduced the sentence of death awarded to accused by the Trial Court to imprisonment for life on the grounds that no deep-rooted enmity existed between the parties, that the murderer had used only a "Chhuri" and not a fire-arm weapon and that he had given only a solitary blow to the deceased---Courts below had found proved on record that the accused used to tease the womenfolk of the deceased's party and it was on account of the complainant party's restraining him from indulging in such activities that the accused had done the deceased to death---Conversion of the normal penalty of death into imprisonment for life, in such circumstances, was a question which required serious consideration---Notice, therefore, was issued to the accused to show cause why in case of failure of his petition, he should not be punished with death and in view of the said show-cause notice having been issued to accused, leave to appeal was granted to him to reappraise the evidence for the said purpose.

M.D. Tahir, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 25th May, 2005.

SCMR 2008 SUPREME COURT 1366 #

2008 S C M R 1366

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

GHULAM ABBAS and another---Petitioners

Versus

MANZOOR AHMAD and another---Respondents

Civil Petitions Nos.3107-L and 3108-L of 2003, decided on 24th December, 2003.

(On appeal from the judgment dated 24-11-2003 of the Lahore High Court, Lahore passed, in C.Rs. Nos.1664 and 1665 of 2003).

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

----S. 13(3)---General Clauses Act (X of 1897), S.26---Constitution of Pakistan (1973), Art.185(3)---Pre-emption suit---Notice of Talb-i-Ishhad---Proof---Production of postal receipt in evidence---Failure to dispatch the notice through registered post acknowledgement due---Effect---Dismissal of suit---Notice of Talb-i-Ishhad was sent through registered post and the postal receipt was produced in evidence---Postal authorities proved that the notice was delivered to the vendees and their signatures were available on postal receipt---Judgment and decree passed by the Trial Court was set aside by the Appellate Court on the ground that the requirement to prove issuance of notice of Talb-i-Ishhad was proved---High Court upheld the judgment and decree passed by the Appellate Court---Plea raised by the vendees was that the pre-emptor did not dispatch the notice through registered post acknowledgement due, therefore, the requirement of S.13(3) of Punjab Pre-emption Act, 1991, was not proved---Validity---Requirement of S.13(3) of Punjab Pre-emption Act, 1991, was to prove sending/dispatch of notice---Address of vendees was not disputed, therefore, the notice was presumed to have been delivered to the vendees by virtue of S.26 of General Clauses Act, 1897---Requirement of acknowledgement due receipt was one of the modes to satisfy that the notice had reached the addressee---Pre-emptor had complied with the requirement of S.13(3) of Punjab Pre-emption Act, 1991---Leave to appeal was refused.

Izharul Haq, Advocate Supreme Court and Mian Atta-ur-Rehman, Advocate-on-Record (absent) for Petitioners.

Nemo for Respondents.

Date of hearing: 24th December, 2003.

SCMR 2008 SUPREME COURT 1369 #

2008 S C M R 1369

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

NASEEB KHAN----Petitioner

Versus

DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS, LAHORE and another----Respondents

Civil Petition for Leave to Appeal No.466 of 2008, decided on 26th May, 2008.

(On appeal from the judgment, dated 23-1-2008 passed by Federal Service Tribunal in Appeal No.397(R) of 2007).

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

----S. 5---Misconduct---Dismissal from service---Non-holding of departmental Enquiry---Violation of principles of natural justice---Effect---Held, in case of imposing a major penalty, the principles of natural justice required that a regular enquiry was to be conducted in the matter and opportunity of defence and personal hearing was to be provided to the civil servant proceeded against, otherwise civil servant would be condemned unheard and major penalty of dismissal from service would be imposed upon him without adopting the required mandatory procedure, resulting in manifest injustice.

Pakistan International Airlines Corporation v. Ms. Shaista Naheed 2004 SCMR 316 and Inspector-General of Police, Karachi and 2 others v. Shafqat Mehmood 2003 SCMR 2007 ref.

Abdul Rehman Siddiqui, Advocate Supreme Court with Arshad Ali Chaudhry, Advocate-on-Record for Petitioner.

Qamar Zaman, Clerk, Litigation Branch for Respondents.

Date of hearing: 26th May, 2008.

SCMR 2008 SUPREME COURT 1372 #

2008 SCMR 1372

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Sheikh Hakim Ali, JJ

MUHAMMAD ASHRAF----Petitioner

Versus

THE STATE and another---Respondents

Criminal Petition No.158-L of 2008, decided on 14th July, 2008.

(On appeal from the order, dated 27-5-2008 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No.8888-CB of 2008).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/147/148/452/109/337-A(i), 337-F(v) & 337-L(ii)---Constitution of Pakistan (1973), Art.185(3)---Power and jurisdiction of High Court for cancellation of bail---Scope---Additional Sessions Judge, no doubt, had the power to grant bail in appropriate case under. S.497, Cr.P.C., yet that discretion could be scrutinized by the High Court when exercise of the discretion in granting bail had been made by the subordinate court on flimsy grounds and contrary to the settled principles of law---Power and jurisdiction of High Court in this behalf could not be circumscribed and considered to be limited one---Particular role with specific attribution of the act of inflicting blow to the deceased by the petitioner was ascribed in F.I.R., due to which deceased had allegedly expired---F.I.R. was promptly lodged and a corroborative and supportive evidence in the form of post mortem report was also in existence---Discretion by Additional Sessions Judge in allowing bail to the accused, held, could not be considered to have been properly exercised---Impugned order of the High Court cancelling the bail of accused, in circumstances, was not liable to be interfered with by the Supreme Court---Petition for leave to appeal was dismissed.

Ch. Anwar-ul-Haq Pannu, Advocate Supreme Court for Petitioner.

Alamgir, Additional Prosecutor-General, Punjab with Mehmud, S.-I., Police Station Narang, District Sheikhupura for the State.

Zafar Iqbal Chohan, Advocate Supreme Court for Respondent No.2.

SCMR 2008 SUPREME COURT 1375 #

2008 S C M R 1375

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

MANZOOR-UR-REHMAN----Petitioner

Versus

GOVERNMENT OF SINDH and others----Respondents

Civil Petition No.452 of 2008, decided on 13th May, 2008.

(Against the order, dated 28-2-2008 of the High Court of Sindh Bench at Sukkur passed in Constitutional Petition No.D-17 of 2008).

Auction---

----Record revealed that auction in question by the government department was conducted after fulfilling all the codal formalities; no illegality or material irregularity had been committed by the officials---Petitioner had not been able to point out any substantial question of law of public importance to warrant interference by the Supreme Court---No loss had been caused to the government because valuation of trees auctioned was made through proper channel and verified by the competent authority---Petitioner having failed to participate in the auction, could not be allowed to question the same---Petition for leave to appeal was dismissed by Supreme Court against the auction in circumstances---Constitution of Pakistan (1973), Art.185(3).

G.N. Gohar, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing; 13th May, 2008.

SCMR 2008 SUPREME COURT 1377 #

2008 S C M R 1377

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

MUHAMMAD NAWAZ BHATTI----Appellant

Versus

PRESIDENT, MUSLIM COMMERCIAL BANK LIMITED, KARACHI and others----Respondents

Civil Appeal No.1639 of 2005, decided on 9th June, 2008.

(On appeal from the judgment, dated 29-10-2004 passed by the Lahore High Court, Multan Bench, Multan in Writ Petition No.6860 of 2002).

Industrial Relations Ordinance (XXVIII of 1969)---

----Ss. 25-A & 2---"Workman"---Definition---Scope and applicability of Ss.25-A & 2 of Industrial Relations Ordinance, 1969---Employee of a Bank, having an individual dispute unrelated to industrial dispute, was not a "workman" for the purpose of S.25-A read with S.2 of the Industrial Relations Ordinance, 1969 and was therefore, not entitled to the remedy provided under S.25-A of the Ordinance---Principles.

Syed Matloob Hassan v. Brooke Bond Pakistan Limited, Lahore 1992 SCMR 227; National Bank of Pakistan v. Punjab Labour Court No.5, Faisalabad and 2 others 1993 SCMR 672; Muhammad Ahmed v. Government of Sindh and another 1999 SCMR 255 and Messrs Shaheen Airport services v. Nafees-ul-Hassan Siddiqui and another 2001 Pi.0 737 distinguished.

Muhammad Arif Alvi, Advocate Supreme Court and Arshad Ali Ch., Advocate-on-Record for Appellant.

Yawar Ali Khan, Advocate Supreme Court for Respondents Nos.1 to 3.

Date of hearing: 9th June, 2008.

SCMR 2008 SUPREME COURT 1381 #

2008 SCMR 1381

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad, Sheikh Hakim Ali and Muhammad Farrukh Mahmud, JJ

ABDUL REHMAN----Appellant

Versus

THE STATE and another----Respondents

Criminal Appeal No.765 of 2006, decided on 11th June, 2008.

(On appeal from the judgment, dated 21-6-2006 of the Lahore High Court, Lahore, passed in Criminal Appeal No.1779 of 2005).

Criminal Procedure Code (V of 1898)---

----S. 426---Suspension of sentence and grant of bail by High Court---Validity---Bail was granted by High Court mainly on the grounds that the Trial Court had observed in its judgment that prosecution witnesses were not present at the scene of occurrence and had not witnessed the same; that all the investigations had opined that the complainant and prosecution witnesses were not present at the scene of occurrence nor the occurrence had taken place in the manner asserted by the prosecution---Conclusion arrived at by the Trial Court that witnesses were not present at the time of occurrence was based on reasons and was not based merely on the opinion of the police---Trial Court had also recorded that empties recovered from the spot did not tally with the weapon recovered at the instance of the accused---Merits of the case could be looked into at the time of hearing of application for suspension of sentence---Impugned order of the High Court being neither whimsical nor fanciful nor arbitrary and reasons recorded by the High Court were borne out from the record, Supreme Court declined interference.

Moonda and others v. The State PLD 1958 SC (Pak.) 275; Farman Ali and 2 others v. The State 1993 SCMR 2055; Waris Ali and 5 others v. The State 2001 SCMR 640; Babar Ali v. Bashir Ahmed and another 2007 SCMR 184 distinguished.

Muhammad Akram v. The State 1994 SCMR 277 and Sajjad Bashir v. The State PLD 1995 SC 576 ref.

Sardar M. Latif Khan Khosa, Senior Advocate Supreme Court with Mian Muhammad Nawaz, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant.

Kh. Sultan Ahmed, Senior Advocate Supreme Court for Respondent No.2 with respondent Allah Bakhsh (in person).

Siddique Khan Baloch, D.P.-G. for the State.

Date of hearing: 11th June, 2008.

SCMR 2008 SUPREME COURT 1384 #

2008 SCMR 1384

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad, Muhammad Akhtar Shabbir, and Syed Sakhi Hussain Bokhari JJ

Mst. RASHEEDA BIBI and others----Appellants

Versus

MUKHTAR AHMAD and others----Respondents

Civil Appeal.No.1448 of 2007, decided on 4th June, 2008.

(On appeal from the judgment of the Lahore High Court, Bahawalpur Bench, dated 1-3-2002 passed in Civil Revision No.2-D of 1991).

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

----Ss. 42 & 54---Suit for declaration challenging the registered gift deeds by the plaintiffs being a fraudulent and collusive transaction, ineffective qua their rights and restraining the defendants from interfering with their proprietary and possessory tights over the property in dispute---Alleged executants of gift deed who were Pardanashin, illiterate, simpleton, villager ladies had disputed its execution---Mere admission of making thumb-impression or appearance before the Sub-Registrar was not sufficient to infer that the donors (plaintiffs) had declared their intention to transfer their share of property (in dispute) which they had obtained as legal heirs of their father and husband respectively in favour of defendant---Mere registration of a document in itself was not under the law proof of its execution by a person by whom it was alleged to have been executed, if any of the parties in litigation had denied its execution by the said person---Executants, in the present case, had themselves disputed the execution of such document, therefore, the person claiming the execution of such document was required under the law to prove its execution by producing evidence that it was in fact executed.

Muhammad Sharif Uppal v. Akbar Hussain PLD 1990 Lah. 229 rel.

(b) Islamic law---

----Gift---Proof---Execution or appearance of the party before the Registrar is not conclusive proof of the execution of gift---In such a case, the Court will have an overall view of all the attending circumstances of the transaction and no presumption of truth could be attached to such type of document.

Qazi Altaf Hussain and another v. Ishfaq Hussain 1986 SCMR 1427 and Muhammad Khan v. Mst. Rasul Bibi PLD 2003 SC 676 rel.

----S. 17---Registration of a document---Certificate of registration or endorsement on the registered document carries a presumption but no such presumption can be drawn therefrom that such person has really executed the same and it will be open to the parties to prove that the document in question was not really executed by the person shown to have executed the same---Certificate of registration is only to show the execution of the document and presumption beyond that cannot be drawn therefrom.

Gopal Das and others v. Sri Thakurji and others AIR 1943 PC 83 and Siraj Din v. Mst. Jamilan and another PLD 1997 Lah. 633 ref.

(d) Islamic law---

----Gift---Proof---Endorsement made by the Registrar on questioned document would not prove that such document was executed by donor in favour of donee; contents of gift deed and constituents of gift must be proved in consonance with the provisions of Qanun-e-Shahadat, 1984 and rules of gifts under Islamic law.

Siraj Din v. Mst. Jamilan and another PLD 1997 Lah. 633 quoted.

(e) Islamic law---

----Gift---Validity---Proof---Non-compliance with three essential conditions---Effect---Where all the four donors were simple, villagers, Pardanasheen ladies and according to the custom had never appeared in public and in such-like case, very heavy burden lay on donees that a valid gift had been made in their favour by such ladies---Failure of donees to discharge such burden would be a proof that gift was not made in their favour.

Muhammadan Law Clause 14, by Mulla and P.M. Amer v. Qabool Muhammad Shah and 4 others 1999 SCMR 1049 ref.

(f) Islamic law--

----Gift---Validity---Proof---All the four doners who were simple, villagers, Pardanashin ladies and according to the custom had never appeared in public, had taken plea of fraud and one of them had stated that they were made to thumb-mark on the documents which were presented to them to be in another different connection and question never arose of their making gift in favour of the alleged donees---Donor ladies had not been identified by such a person who advised or protected their interest as against the alienation through gift which deprived them of their valuable proprietary rights---Donors being ladies and Muslim, needed full protection and safeguard in the manner provided by Islam and the relevant law insofar as their property was concerned.

Mst. Badshah Begum v. Ghulam Rasul and 4 others PLD 1991 SC 1140 and Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642 rel.

(g) Islamic law---

----Gift---Validity---Proof---Gift deed executed by Pardanashin ladies---Points to be considered by the Court enumerated---Transaction lacking any of such points and three ingredients would be invalid and void---Principles.

Points for taking into consideration by the courts with regard to gift deed executed by the "Pardanashin" ladies are as under

(i) Whether the plaintiff (donor) had any friendly advice before executing the deed and by a person whom the court considers as being genuinely interested in her welfare?

(ii) Whether the document was explained to her and whether she really had the capacity to understand its consequences?

(iii) Whether it was a mental act, that is, whether the mind accompanied the hand that executed it?

(iv) Whether the entire transaction was free from circumstances throwing any shadow of doubt or suspicion on the inception, execution and application of the deed?

The trial Court, in the present case, had not framed the relevant legal issues to determine the genuineness of gift nor the First Appellate Court or the High Court had adverted to this legal aspect of the case had not examined the evidence produced by the parties on such touchstone. There was no evidence on the file by the defendant establishing the three requirement of a valid Muhammadan gift. The evidence produced by the donees fell short of the required standard of proof in a land dispute involving huge property. Mere fact that donee was step-brother of the three donors and son of the fourth was not sufficient to believe or infer that the aches had knowingly/with free mind executed the gift deeds of their v cable landed property and any such transaction lacking any of the three requirements would be invalid and void.

As no relevant and legal issues had been framed to prove the validity of the gift by performing the three requirements of law, for non-framing of issues, the parties could not properly adduce the evidence. The trial Court was under the legal obligation to frame factual, legal and relevant issues arising out of the pleadings of the parties and hence it failed to perform its duty. Parties had been prejudiced for not framing the issues correctly. That's why they failed to lead evidence properly. It is the duty of the court to frame correct issues but the parties were also under duty to make application for amendment of issues. Nevertheless, the court was bound to frame issues correctly primarily on pleadings of the parties, because the issues framed by the court correctly reflected the controversies arising from the pleadings of the parties and the court thus could render an effective judgment on the disputed facts and the party also knows on what fact the evidence should be led.

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

----O. XIV, R.1---Framing of issues---Duty of Court.

Plea that framing of a particular issue was not pressed by party affected is no ground for condoning failure to frame necessary issue and the mandate of Order XIV, rule 1, C.P.C. reveals that it is incumbent upon the court to frame issues in the light of the controversies raised in the pleadings and after examination of the parties, if necessary. Issues of law and facts are to be illustrated clearly, to enable the parties to understand the points at issue to support their respective claims by recording evidence on all material points. "action or inaction" on the part of the court cannot prejudice a party to litigation and the failure of courts below to determine material issue amounted to exercise of jurisdiction illegally or with material irregularity.

(i) Constitution of Pakistan (1973)---

----Art. 185---Where the courts below had missed the important features and legal aspects from taking into consideration, the Supreme Court, as court of last appeal, would be under legal duty to interfere and correct the irregularity and illegality committed by the courts below.

Syed Samar Hussain, Advocate Supreme Court for Appellants.

Raja Muhammad Bashir, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondents.

Date of hearing: 4th June, 2008.

SCMR 2008 SUPREME COURT 1395 #

2008 SCMR 1395

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ch. Ejaz Yousaf and Mian Hamid Farooq, JJ

Messrs NOORANI TRAVELS, KARACHI----Petitioners

Versus

MUHAMMAD HANIF and others----Respondents

Civil Petitions Nos.445-K to 447-K of 2006, decided on 25th February, 2008.

(On appeal from the judgments, dated 10-8-2006 in C.P. No. S-593 of 2004, C.P. No. S-199 of 2006, C.P. No. S-724 of 2004 passed by the High Court of Sindh, Karachi).

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

----S. 13---Tenancy in a partnership firm on death of a partner devolves upon his legal heirs as per their respective shares or interest in the partnership---Dissolution of the firm or death of a partner, for the purpose of tenancy or execution of any ejectment order is virtually insignificant---Principles.

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

----S. 13---Unauthorised sub-tenant can be evicted along with the tenant against whom the eviction order is passed by Rent Controller and he is not a necessary party to the proceedings, being unauthorisedly in occupation of the premises---In order to become a party to the proceedings it is to be established by the Intervener or the interceptor that he has a "legal right in the property which is enforceable by law", otherwise he cannot claim to be a necessary party in the proceedings.

Sh. Fazal Elahi & Co. v. Maula Bakhsh and others 1968 SCMR 735; Minochar N. Kharas v. Ali Hassan Manghi and others 1986 CLC 1378 and Taj Muhammad v. Ali Hassan Mangi 1987 SCMR 565 ref.

----Art. 119---Burden of proof as to any particular fact lies on that person who wishes to believe the court in its existence unless it is provided by law that proof of that fact lies on another person.

Abdul Qadir Khan, Advocate Supreme Court and Tariq Khokhar, Advocate Supreme Court for Petitioners.

Malik Muhammad Qayyum, Advocate Supreme Court, Mansoorul Arfin, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondents.

Date of hearing: 25th February, 2008.

SCMR 2008 SUPREME COURT 1406 #

2008 S C M R 1406

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J. , Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

MUHAMMAD ALAMZEB KHAN----Appellant

Versus

REGISTRAR, PESHAWAR HIGH COURT, PESHAWAR and another----Respondents

Civil Appeal No.41 of 2008, decided on 25th June, 2008.

(On appeal from the judgment, dated 8-5-2006 passed by the Peshawar High Court, Peshawar in Service Appeal No.3 of 1999).

North-West Frontier Province Subordinate Judiciary Service Tribunal Act (VIII of 1991)---

----S. 5---North-West Frontier Province (Efficiency and Discipline) Rules, 1973, Rr.3 & 4---North-West Frontier Province Government Servants (Conduct) Rules, 1987, R.4-A(b)---Dismissal from service, of a Judicial Officer, having more than 12 years of service to his credit, on the charges of favouritism, abuse of process of the court and misuse of powers, as a result of which, the State was deprived of huge amount and its profit---Act of the officer was found prejudicial to the good order of service and unbecoming of an officer---Allegations being serious in nature, were required to be proved through direct positive evidence---Record showed that except the bare allegations, there was nothing incriminating on the file to connect the officer with the guilt---Nothing was available on record to show that the officer had received any illegal gratification/consideration for passing orders in question---Inquiry report also revealed that no illegal gratification was taken by the said officer---First two inquiries conducted against the officer, did not show any involvement---Charges of misappropriation and embezzlement could neither be proved by the complainant nor any finding to that effect was on record even on the third inquiry---Loss, if any, to the government was not due to the fault of the officer but by the act of some other officials of the different department who had not been taken to task---Wrong done, if any, however, was undone and as such there remained no grievance for action against the officer and there was no reason to proceed against him---Officer was not allowed any opportunity to cross-examine the witnesses produced against him and as such, he had been condemned unheard and was refused to produce defence witnesses thus, prejudicing his interest---Held, officer had been condemned unheard and major penalty of removal from service had been imposed upon him, contrary to the material on record and without adopting the required and mandatory procedure, resulting in manifest injustice---Order of dismissal from service could not be sustained in circumstances---Supreme Court allowed appeal of the officer, set aside the impugned judgment of the Subordinate Judiciary Service Tribunal and ordered reinstatement of the officer in service.

Deputy Director, Food, Bahawalpur and others v. Akhtar Ali and others 1998 SCMR 597; Inspector-General of Police, Police Headquarters Office, Karachi and 2 others v. Shafqat Mehmood 2003 SCMR 207; Muhammad Idris Khan v. Secretary/Chairman, Ministry of Railways, Islamabad and 5 others 2006 SCMR 104; Salman Faruqui v. Javed Burki, Authorized Officer, Secretary, Ministry of Water and Power Government of Pakistan, Islamabad and another 2007 SCMR 693 and Chairman, Syndicate University of Peshawar and another v. Dil Nawaz Khan 2007 SCMR 703 ref.

Syed Iftikhar Hussain Gilani, Senior Advocate Supreme Court and Shoaib Shaheen, Advocate Supreme Court for Appellant.

Sh. Riazul Haq, Advocate Supreme Court and Qaiser Rasheed, Additional Advocate-General, N.-W.F.P. for Respondents.

Raja Abdul Rehman, D.A.-G. on Court Notice.

Date of hearing: 4th June, 2008.

SCMR 2008 SUPREME COURT 1411 #

2008 SCMR 1411

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari, Sheikh Hakim Ali and Muhammad Farrukh Mahmud, JJ

SHAFQAT MAHMOOD and others----Appellants

Versus

MUHAMMAD YAQOOB and another----Respondents

Civil Appeals Nos.216 and 217 of 2004, decided on 10th June, 2008.

(On appeal from the judgment, dated 15-12-2003, passed by the Lahore High Court, Rawalpindi Bench, in Civil Revision No.1 of 2002).

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

----Ss. 13 & 35(2)---Pre-emption Suit---Pre-emptor who had instituted the suit against sales made during the period from 1986 to 1990, when the statutory law of pre-emption had not taken its life, could not take the benefit of S.13, Punjab Pre-emption Act, 1991---Section 13 of the Act was to be applied to the sales made after the enforcement of statutory law of pre-emption and not to the cases before the said period---Failure of such pre-emptor to comply with the provision of S.35(2) of the Punjab. Pre-emption Act, 1991 which had required the pre-emptor to establish the performance of Talb-i-Ishhad in the presence of two truthful witnesses, would result into the dismissal of pre-emptor's suit---Principles.

Pir Muhammad v. Faqir Muhammad PLD 2007 SC 302 applied.

S.M. Masud, Advocate Supreme Court for Appellants (in both appeals).

Zafar Iqbal Chaudhry, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents Nos.1 and 2 (in both appeals).

Date of hearing: 10th June, 2008.

2008 S C M R 1422

[Supreme Court of Pakistan]

Present: Javed Iqbal, Falak Sher and Karamat Nazir Bhandari, JJ

AKBAR ALI and another---Petitioners

Versus

MUHAMMAD RAMZAN---Respondent

Civil Petition No.2350-L of 2002, decided on 29th May, 2003.

(On appeal from the judgment dated 22-4-2002 passed by Lahore High Court, Lahore in Civil Revision No.984 of 1995).

Specific Relief Act (I of 1877)---

----S. 8---Constitution of Pakistan (1973), Art.185(3)---Recovery of possession---Concurrent findings of facts by the Courts below---Plaintiff failed to substantiate his claim over the suit-land by leading any convincing oral or documentary evidence---Defendant proved to have purchased the suit-land by means of sale-deed duly supported by copies of record of rights which could not be rebutted---Plaintiff failed to explain as to how the suit property had devolved upon him---Effect---Supreme Court as the final Court of appeal would not disturb concurrent findings of facts based on full appreciation of evidence save in most exceptional cases which was lacking in the present case---Conclusion as arrived at by Appellate Court and affirmed by High Court was neither whimsical nor capricious meriting any interference by Supreme Court---No question of law of public importance was involved in the matter persuading Supreme Court to grant leave---Leave to appeal was refused.

Muhammad Sharif v. Abdul Majid 1986 SCMR 190 Sadiq Jan v. Muhammad Rashid 1985 SCMR 860; Abdur Rauf Khan v. Firm Babu Munir Ghulam Siddique 1976 SCMR 436; Star Textile Mills Limited v. IVth Sindh Labour Court 1976 SCMR 448; Sanaullah v. State 1985 SCMR 1488 and Jamal Khan v. Ghulam Muhammad 1978 SCMR 179 ref.

Zahid Hussain Khan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 29th May, 2003.

SCMR 2008 SUPREME COURT 1425 #

2008 S C M R 1425

[Supreme Court of Pakistan]

Present: Falak Sher and Tassaduq Hussain Jillani, JJ

GHULAM HAIDER and others----Petitioners

Versus

WALI MUHAMMAD and others----Respondents

Civil Petition No.2997-L of 2000, decided on 24th May, 2005.

(On appeal from the judgment, dated 22-11-2000 passed by Lahore High Court, Bahawalpur Bench, Bahawalpur in Civil Revision No.1089-D of 1977).

Specific Relief Act (I of 1877)---

----S. 42---Limitation Act (IX of 1908), Art. 142---Constitution of Pakistan (1973), Art. 185(3)---Suit for declaration---Limitation---Suit in which mutation with regard to land in dispute was challenged, was dismissed by Trial Court as being time-barred and even on merits and findings of Trial Court were affirmed by Court of appeal and High Court---Suit was filed 19 years after impugned mutation---Period of limitation for filing such a suit in terms of Art. 142 of Limitation Act, 1908, was 12 years---Suit being time-barred, findings of Courts on that issue were unexceptionable---No evidence was available on record to indicate that impugned mutation was collusive or fictitious---Suit, in circumstances was rightly dismissed---Concurrent findings of Courts, could not be interfered with---Petition was dismissed and leave refused.

Hussain Amin Khan Lodhi, Advocate Supreme Court and Mahmud-ul-Islam, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 24th May, 2005.

SCMR 2008 SUPREME COURT 1427 #

2008 S C M R 1427

[Supreme Court of Pakistan]

Present: Tanvir Ahmed Khan and Falak Sher, JJ

MUHAMMAD RIAZ and others---Petitioners

Versus

Mst. AMEER BEVI and others---Respondents

Civil Petition No.2905-L of 2003, decided on 24th December, 2003.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 4-11-2003 passed in C.R. No.2567 of 2000).

Specific Relief Act (I of 1877)---

----S. 42---Civil Procedure Code (V of 1908), O.XLI, R.31---Constitution of Pakistan (1973), Art.185(3)---Declaration of title---Judgment of Appellate Court---Failure to give issue-wise findings---Concurrent findings of facts by the Courts below---Plaintiffs denied having sold the suit-land to defendants and claimed to be the owners of the same---Defendants failed to substantiate the sale transactions or payment of consideration---Neither brother of plaintiffs, who identified the plaintiffs before Revenue Authorities at the time of attestation of sale mutation, was produced as a witness, nor the Revenue Officer who attested the mutation was produced---Trial Court dismissed the suit but Appellate Court allowed the appeal and the suit was decreed---Judgment and decree passed by the Appellate Court was upheld by High Court in exercise of revisional jurisdiction---Plea raised by the defendants was that the Appellate Court did not decide the appeal issue-wise---Validity---Entire evidence was discussed by the Appellate Court and the findings had been given on all the points---Defendants failed to point out any illegality, misreading or non-reading in the judgment passed by Appellate Court warranting interference by Supreme Court---Leave to appeal was refused.

Ghulam Nabi Bhatti, Advocate Supreme Court for petitioners.

Nemo for Respondents.

Date of hearing: 24th December, 2003.

SCMR 2008 SUPREME COURT 1429 #

2008 S C M R 1429

[Supreme Court of Pakistan]

Present: Falak Sher, Mian Shakirullah Jan and Tassaduq Hussain Jillani, JJ

MUHAMMAD IKRAM----Petitioner

Versus

MUHAMMAD ASIF and 3 others----Respondents

Criminal Petition No.60-L of 1998, decided on 13th June, 2005.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 5-11-1997 passed in Criminal Appeal No.1092 of 1991 and Murder Reference No.478 of 1991).

Penal Code (XLV of 1860)---

----S. 302---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court to complainant to examine the reasons whereby the death sentence of accused was reduced by High Court to imprisonment for life.

Mian Fazle Mehmood, Senior Advocate Supreme Court for Petitioner.

Syed Afzal Haider, Advocate Supreme Court for Respondents Nos.1-3.

A.H. Masood, Advocate Supreme Court for the State.

Date of hearing: 13th June, 2005.

2008 S C M R 1436

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

SHAH NAWAZ and others----Petitioners'

Versus

THE STATE and another----Respondents

Criminal Petitions for Leave to Appeal Nos.107 and 123 of 2005, decided on 6th July, 2005.

(On appeal from order of Peshawar High Court, Abbottabad Bench, dated 21-2-2005 passed in Criminal Miscellaneous Nos.3 and 7 of 2005).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Constitution of Pakistan (1973), Art.185(3)---Bail---Cause of death of the deceased, according to the post-mortem report, appeared to be the head injury plus multiple fractures of different parts of his body---Accused, prima facie, seemed to be responsible for causing incised wound on the skull of the deceased which proved fatal---Bail was declined to accused in circumstances---As regards other two co-accused though their presence at the scene of occurrence could not be disputed, yet the injuries inflicted by them, prima facie, did not appear to have contributed to the immediate cause of death of the deceased---Both the said co-accused were behind the bars for the last more than eight months and their trial in near futures was not in sight---Case of these co-accused was not distinguishable from those already released on bail by High Court---Said co-accused were admitted to bail on the principle of consistency accordingly.

M. Bilal Senior Advocate Supreme Court and Chaudhry Muhammad Akram, Advocate-on-Record for Petitioners.

Zulfiqar Ahmad Bhutta, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for the Complainant.

Muhammad Saeed, Advocate Supreme Court for the State.

Date of hearing: 6th July, 2005.

SCMR 2008 SUPREME COURT 1439 #

2008 S C M R 1439

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Hamid Ali Mirza and Abdul Hameed Dogar, JJ

ADNAN A. KHAWAJA---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.281 of 2001, decided on 6th February, 2002.

(On appeal from the judgment/order dated 25-10-2001 passed by Lahore High Court, Lahore in Cr.A. No.1195 of 2000).

Criminal Procedure Code (V of 1898)---

----S. 426---National Accountability Ordinance, (XVIII of 1999), S.10---Constitution of Pakistan (1973), Art.185(3)---Suspension of sentence---Accused had earned some necessary remissions and had served out major portion of his sentence---Petition for leave to appeal was converted into appeal and allowed in circumstances and the accused was released on bail after suspending his sentence.

Khan Asfand Yar Wali and others v. Federation of Pakistan, through Cabinet Division, Islamabad and others PLD 2001 SC 607 ref.

Zulfiqar Ali v. State 1994 SCMR 548 fol.

Nasir Saeed Sheikh, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Petitioner.

Abdul Baseer Qureshi, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent.

Date of hearing: 6th February, 2002.

SCMR 2008 SUPREME COURT 1442 #

2008 S C M R 1442

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Khalil-ur-Rehman Ramday, JJ

MUHAMMAD ASHRAF and others---Petitioners

Versus

Mst. SAIRAN BIBI through L.Rs. and others--Respondents

C.P.L.A. No.2756-L of 2003, decided on 22nd December, 2003.

(On appeal from the judgment dated 22-9-2003 passed by the Lahore High Court, Multan Bench, Multan in Civil Revision No.188-D of 1992).

Specific Relief Act (I of 1877)---

----S. 42--Civil Procedure Code (V of 1908), S.115---Qanun-e-Shahadat (10 of 1984), Arts.72 & 79---Constitution of Pakistan (1973), Art.185(3)---Declaration of title---Execution of document---Proof---Concurrent findings of facts by the Courts below---Setting aside such finding by High Court in exercise of revisional jurisdiction---Plaintiff denied execution of any gift deed in favour of defendants---During the trial the defendants did not produce any marginal witness of the deed and the scribe of the deed admitted in evidence that he did not know the donor personally---High Court in exercise of revisional jurisdiction set aside the concurrent findings of facts by the two Courts below and decreed the suit in favour of the plaintiff---Validity---No legal evidence was available about the proof of the execution of the gift deed by the plaintiff who, in her life time, filed the instant suit and denied its execution---High Court had rightly taken into consideration the circumstances that there was no reason as to why the plaintiff, in presence of her own children would have gifted the property to her nephews---High Court correctly held that findings of two Courts below were based on gross misreading of record---Supreme Court observed that present was a case where an attempt was made to grab the property in the garb of gift---No illegality was committed by High Court in accepting the revision petition and setting aside the judgments of the two Courts below---Leave to appeal was refused.

Ch. Muhammad Ashraf, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 22nd December, 2003.

SCMR 2008 SUPREME COURT 1444 #

2008 SCMR 1444

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Mian Muhammad Ajmal and Khalil-ur-Rehman Ramday, JJ

HAMEEDULLAH KHAN and others----Petitioners

Versus

Mst. ZEENAT KHATOON----Respondent

Civil Petition No.2136-L of 2002, decided on 16th February, 2004.

(On appeal from the judgment, dated 7-5-2002 of the Lahore High Court, Lahore passed in Civil Revision No.1613 of 2000).

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

----Ss. 6 & 13---Constitution of Pakistan (1973), Art.185(3)---Suit for pre-emption---Making of Talbs---Suit was dismissed by Trial Court on ground that respondent had failed to prove Talbs---Appellate Court below and then High Court, in exercise of its revisional jurisdiction, concurrently set aside judgment of Trial Court---Validity---Contention of petitioners was that Talb-e-Ishhad was not duly performed by respondent and she had failed to prove notice in that respect and that photostat copy of notice brought on record was not admissible in law---Respondent had tendered copy of notice which was in her possession after sending original to petitioners---Court was legally right to accept photostat copy and on that score, no point was made out for grant of leave to appeal---Petition for leave to appeal was dismissed and leave declined.

Abdul Qayyum v. Muhammad Rafique 2001 SCMR 1651 ref.

Inayatullah Khan Niazi, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioners.

Nemo for Respondent.

Date of hearing: 16th February, 2004.

SCMR 2008 SUPREME COURT 1446 #

2008 S C M R 1446

[Supreme Court of Pakistan]

Present: Javed Iqbal, Falak Sher and Karamat Nazir Bhandari, JJ

MUNIR AHMAD---Petitioner

Versus

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

Civil Petition No.2503-L of 2000, decided on 1st April, 2003.

(On appeal from the order dated 11-7-2000 passed by Punjab Service Tribunal, Lahore in A. No.1688 of 2000).

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

----R. 6---Constitution of Pakistan (1973), Art.212(3)---Reduction in pay by one stage---Involving innocent person in a false case---Civil servant being police official alleged to have involved an innocent person in a false case---During departmental inquiry witnesses including the complainant deposed against the civil servant---Penalty of reduction in pay by one stage was imposed by the authorities and the same was maintained by the Service Tribunal---Plea raised by the civil servant was that the complainant had later on exonerated him---Validity---Affidavit of the complainant obtained subsequently by the civil servant had no legal sanctity which otherwise could have been procured by a police officer by exerting influence and pressure---Proper opportunity of hearing was afforded by the authorities to the civil servant and already a lenient view had been taken by the authorities---Conclusion arrived at by the Service Tribunal being well-based did not warrant any interference---No question of law of public importance was involved in the matter---Leave to appeal was refused.

Ch. Muhammad Hussain Naqshbandi, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 1st April, 2003.

SCMR 2008 SUPREME COURT 1448 #

2008 S C M R 1448

[Supreme Court of Pakistan]

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

ALI SHEHARYAR---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.828-L of 2002, decided on 16th May, 2003

(On appeal from the judgment of the Lahore High Court, Lahore dated 9-10-2002 passed in Criminal Miscellaneous No.6634-B of 2002).

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

----Ss. 497 & 369---Bail---Fresh bail application, filing of---Fresh bail application can be moved at a subsequent stage on the grounds which were not available at the time of filing of earlier bail application and order passed on the subsequent bail application would not amount to review of the earlier order on the bail application as S.369, Cr.P.C. did not apply to such orders.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/337-A(i)/337-H(ii)/337-L(i)/148/149---Constitution of Pakistan (1973), Art.185(3)---Bail, grant of---Case was of counter-version and the accused party had also sustained injuries---Tentative assessment of the material on record had created some doubt about the person responsible for the injuries caused to the deceased, benefit of which was to be extended to the accused even at bail stage, as the same had to be determined by the Trial Court on minute appreciation of entire evidence---Petition for leave to appeal was converted into appeal and allowed in circumstances and the accused was admitted to bail accordingly.

Ghulam Sabir, Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record (absent) for Petitioner.

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

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

Date of hearing: 3rd February, 2003.

SCMR 2008 SUPREME COURT 1451 #

2008 S C M R 1451

[Supreme Court of Pakistan]

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

SHER MUHAMMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.269 of 2003, decided on 26th January, 2004.

(On appeal against the order, dated 26-6-2003 of the Lahore High Court passed in Crl. Misc. No.2946/B of 2003).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Constitution of Pakistan (1973), Art.185(3)---Bail, refusal of---Accused and his co-accused, according to prosecution, were responsible for causing the death of the complainant's brother---Accused had allegedly caused fire-arm injury on the left eye of the deceased which was corroborated by the post-mortem report---Prima facie, grounds were available to believe that the accused was guilty of the offence with which he was charged---Bail was refused to accused in circumstances and leave to appeal was declined to him accordingly.

Zulfiqar Ahmed Bhutta, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.

M. Zawar Bhatti, Advocate-on-Record for the State.

Date of hearing: 26th January, 2004.

SCMR 2008 SUPREME COURT 1452 #

2008 S C M R 1452

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Faqir Muhammad Khokhar and Falak Sher, JJ

GOVERNMENT OF THE PUNJAB---Petitioner

Versus

MUHAMMAD MUNIR AKHTAR and others---Respondents

Civil Petitions Nos.2964 to 2973-L of 2003, decided on 10th February, 2004.

(On appeal from the judgment dated 13-10-2003 passed by the Punjab Service Tribunal in Appeals Nos.2915, 14, 16, 17 and 2814, 15, 2871, 2872, 2873 and 2874 of 2002).

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

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Direction by Service Tribunal---Holding of fresh inquiry---Service Tribunal, jurisdiction of---Service Tribunal after having examined the case of civil servant and controversy involved in depth had opined that an independent Inquiry Committee consisting of two Chief Engineers of established repute and integrity should be constituted to examine the complete record along with the defence to be taken by the civil servant whereafter report would be submitted to the Authority for adjudication---Contention of civil servant was that the Tribunal could not remand the case after giving such direction---Validity---Judgment passed by Service Tribunal was just and proper and no interference was called for by Supreme Court in exercise of jurisdiction under Art.212(3) of the Constitution---Leave to appeal was refused.

Mian Ghulam Hussain Advocate Supreme Court for Petitioner (in all cases).

Nemo for Respondents.

Date of hearing: 10th February, 2004.

SCMR 2008 SUPREME COURT 1454 #

2008 S C M R 1454

[Supreme Court of Pakistan]

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

NABI BAKHSH---Appellant

Versus

FAZAL HUSSAIN---Respondent

Civil Appeal No.894 of 1999, decided on 3rd October, 2003.

(On appeal from the judgment dated 17-2-1999 passed by the Lahore High Court Rawalpindi Bench, Rawalpindi in Civil Revision No.73 of 1994).

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

----S. 118---Qanun-e-Shahadat (10 of 1984), Art.117---Exchange---Denial by plaintiff to have exchanged his property with that of defendant---Burden of proof---Onus would lay heavily on defendant to prove that a valid exchange of properties had taken place between parties; that mutation had been attested with consent and at plaintiff's instance; and that a valid title had been passed on to parties vis-a-vis properties subject-matter of alleged exchange.

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

----S. 115---Concurrent findings of Courts below---Validity---No exception could be taken to exercise of revisional powers and set aside such findings, if same were based on misreading or non-reading of evidence on record.

Muhammad Munir Piracha, Advocate Supreme Court and Ijaz Mahmood Khan, Advocate-on-Record for Appellant.

Gul Zarin Kayani, Senior Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Respondent.

Date of hearing: 3rd October, 2003.

SCMR 2008 SUPREME COURT 1457 #

2008 S C M R 1457

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

ARSHAD ALI---Petitioner

Versus

Mst. ZUBAIDAH BIBI and 2 others---Respondents

Civil Petition No.2919-L of 2003, decided on 23rd December, 2003.

(On appeal from the judgment dated 12th November, 2003 of the Lahore High Court passed in S.A.O. No.137 of 2003).

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13---Constitution of Pakistan (1973), Art.185(3)---Ejectment of tenant---Fixed period of tenancy---Bona fide personal need of landlord--Concurrent findings of facts by the Courts below---Landlord after expiry of period of tenancy, filed ejectment petition on the ground of bona fide personal need---Petition was allowed by Rent Controller and eviction order was passed---Appeal against eviction order was maintained by Appellate Court as well as by High Court---Contention of tenant was that landlord had not raised any plea of bona fide personal need during the period of six years, therefore, the ground of personal need lacked bona fides---Validity---Even in presence of dire personal need of landlord, he was debarred from filing ejectment petition before expiry of the period of lease fixed in the agreement---After expiry of lease period, if petition was filed on personal need, the same could not be alleged to be mala fide merely because landlord did not file ejectment petition earlier which was not of his fault---Concurrent findings of facts by the Courts below on the question of personal need did not suffer from any illegality such as misreading or non-reading of any material piece of evidence---Leave to appeal was refused.

Mrs. Roshan Ara, Advocate Supreme Court and A.H. Masood, Advocate-on-Record for Petitioner.

Date of hearing: 23rd December, 2003.

SCMR 2008 SUPREME COURT 1459 #

2008 S C M R 1459

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Khalil-ur-Rehman Ramday and Falak Sher, JJ

MUHAMMAD SIDDIQUE and others---Petitioners

Versus

THE STATE---Respondent

Criminal Petition No.518-L of 2003, decided on 11th February, 2004.

(On appeal against the order dated 11-7-2003 passed by Lahore High Court, Lahore in Crl. Misc. 2638/B/C of 2003.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.420---Constitution of Pakistan (1973), Art.185(3)---Bail, refusal of---Question relating to the determination of guilt in crime were not to be answered at bail stage which might prejudice the case of any party---Impugned judgment of High Court recalling pre-arrest bail granted to accused by Sessions Court was just and proper in view of the material available on record and called for no interference as no question of public importance was involved in the case---Leave to appeal was refused to accused by Supreme Court accordingly.

Rai Bashir Ahmed, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Petitioners.

Shaukat Ali Mehr, Advocate Supreme Court for Complainant No.7.

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

Date of hearing: 11th February, 2004.

SCMR 2008 SUPREME COURT 1461 #

2008 S C M R 1461

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Faqir Muhammad Khokhar and Falak Sher, JJ

HASSAN and others---Petitioners

Versus

THE STATE and others---Respondents

Criminal Petitions Nos.147-L, 156-L, 157-L and 168-L of 1999, decided on 6th February, 2004.

(On appeal from the judgment/order dated 18-2-1999 passed by Lahore High Court, Lahore in Cr. A. No.322 of 1991, Cr.R. 82 of 1992 and Murder Reference No.499 of 1991).

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

---Ss. 302/149, 307/149 & 148---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to accused by Supreme Court to reappraise the evidence in the interest of justice particularly when some of the accused who were apprehended at the spot along with one of the convicts had been acquitted of the charge either by the Trial Court or by the High Court, whereas he had been convicted for the offence charged against him.

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

----Ss. 302/149, 307/149 & 148---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to the complainant by Supreme Court to examine in depth the questions involved in the petitions for safe administration of justice as some of the accused were apprehended at the spot and crime weapons were also recovered from them but they had been acquitted of the charge.

Sardar Latif Khan Khosa, Advocate Supreme Court and Sh. Salahuddin, Advocate-on-Record for Petitioners (in Cr.Ps. Nos.147-L and 168-L of 1999).

Sh. Khizar Hayat, Advocate Supreme Court and Fiaz-ur-Rehman, Advocate-on-Record for Petitioners (in C.Ps. Nos.156-L and 157-L of 1999).

Nemo for the State.

Date of hearing: 6th February, 2004.

SCMR 2008 SUPREME COURT 1465 #

2008 S C M R 1465

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmad C.J., Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

SALEEM ULLAH KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Petition No.525-L of 2003, decided on 22nd December, 2003.

(On appeal from order dated 18-4-2003 of the Lahore High Court, Lahore, passed in Criminal Appeal No.1193 of 2001).

Prevention of Corruption Act (II of 1947)---

----S. 5(2)---Penal Code (XLV of 1860), S.161---Constitution of Pakistan (1973), Art.185(3)---Case was registered against the accused after thorough inquiry by the Anti-Corruption Department---Accused, who was a Sub-Inspector of Police, became a fugitive from justice and was proceeded against under S.87/88, Cr.P.C.---Prosecution had duly proved the charge against the accused of accepting illegal gratification of Rs.5,000 from the complainant---High Court had dismissed the appeal of accused after reappraisal of evidence---No material discrepancy could be pointed out in the prosecution case---Mere non-recovery of bribe money was not of any consequence in the facts and circumstances of the case---Impugned judgment did not suffer from any legal infirmity--Leave to appeal was refused to accused by Supreme Court accordingly.

Mian Muhammad Nawaz, Advocate Supreme Court and Uzair Chughtai, Advocate-on-Record for Petitioner.

Nemo for the State.

Date of hearing: 22nd December, 2003.

SCMR 2008 SUPREME COURT 1467 #

2008 S C M R 1467

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Khalil-ur-Rehman Ramday and Falak Sher, JJ

CHANAR SUGAR MILLS LTD. and others---Petitioners

Versus

COLLECTOR, CUSTOMS SALES TAX AND CENTRAL EXCISE, FAISALABAD

and others---Respondents

Civil Petitions Nos.2837-L, 2921-L, 2929-L, 2942-L, 2946-L, 2997-L to 3000-L, 3075-L, 3076-L, 3084-L, 3085-L, 3089-L, 3157-L to 3163-L, 31724, and 3220-L; of 2003 and 1584, to 163-L 191-L of 2004, decided on 11th February, 2004.

(On appeal from the judgment/order dated 2-10-2003 passed by Lahore High Court, Lahore in C.As. Nos.71, 85-87, 89-94, 99 of 2002 and S.T.A. Nos.23, 24, 71-75, 86, 88, 90, 93, 94, 184, 223, 264 of 2002 and 110 of 2003).

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

----Art. 185(3)---Petition for leave to appeal---New plea, raising of---Effect---Plea raised by the petitioners in petition for leave to appeal was not raised in reply to show-cause notice issued to them by the authorities---Unless such plea was specifically raised, petitioners were not entitled to any relief on such plea.

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

----Ss. 2(46)(a)(i), 2(46)(c), 3, 33, 34 & 36---Notification S.R.O. No.178(I)/2002, dated 29.3.2002---Constitution of Pakistan (1973), Art.185(3)---Sales tax on bagasse---Adjustment of input tax---Petitioners being sugar mill owners were aggrieved of the show-cause notice issued by the authorities for recovery of sales tax on bagasse---Contention of the petitioners was that they were entitled to adjustment of output tax being demanded from them on the bye-products i.e. molasses and `pressed mud'---Validity---Supreme Court converted the petition for leave to appeal into appeal and directed the private petitioners to approach Sales-tax authorities for claiming adjustment of output tax being demanded from them on the bye-product i.e. molasses and pressed mud against the input tax payable on bagasse and if such representation would be made by them, the concerned authorities would dispose of their request independently without being influenced by any of the observations made by Sales Tax Appellate Tribunal or from the judgment of High Court---Supreme Court further directed that the additional sales tax on bagasse would be recovered at the rate determined by Notification S.R.O. No 178(I)/2002, dated 29.3.2002, for the period from which no exemption of sales tax on bagasse had been granted by the Federal Government.

Sheikhoo Sugar Mills ltd. v. Government of Pakistan and others 2001 SCMR 1376 ref.

M.A. Zafar, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners (in C.Ps: Nos.2921-L, 3157-L to 3163-L of 2003).

Hamid Khan, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioners (in C.Ps. Nos.2929-L, 2942-L and 2946-L of 2003).

Ahmed Bilal Sufi, Advocate Supreme Court and Faiz-ur-Rehman, Advocate-on-Record for Petitioners (in C.Ps. Nos.2997-L to 3000-L of 2003).

Hamid Khan, Advocate Supreme Court, Shahid Karim, Advocate Supreme Court and Mahmood-ul-Islam, Advocate-on-Record for Petitioners (in C.Ps. Nos.3075 and 3076-L of 2003).

Syed Mansoor Ali Shah, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Petitioners (in C.Ps. Nos.3084-L, 3085-L and 3089-L of 2003).

Sh. Izhar-ul-Haq, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioners (in C.Ps. Nos.158-L to 163-L and 191-L of 2004).

Imtiaz Rashid Siddiqui, Advocate Supreme Court and Sh. Salahuddin, Advocate-on-Record for Petitioners (in C.P. No.2837-L of 2003).

Sh. Izhar-ul-Haq, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Respondents (in C.Ps. Nos.2929-L, 2924-L and 2946-L of 2003).

M.A. Zafar, Advocate Supreme Court, Hamid Khan, Advocate Supreme Court, Ch. Mehdi Khan Mehtab, Advocate-on-Record and Mahmood-ul-Islam Advocate-on-Record for Respondents (in C.Ps. Nos.2997-L to 3000-L of 2003).

Dr. Sohail Akhtar, Advocate Supreme Court and M.A. Qureshi, Advocate Supreme Court for Respondents (in C.Ps. Nos.3075-L and 3076-L of 2003).

Hamid Khan, Advocate Supreme Court, Sh. Izhar-ul-Haq, Advocate Supreme Court, Mahmood-ul-Islam, Advocate-on-Record and Tanvir Ahmed, Advocate-on-Record for Respondents (in C. Ps. Nos.3084-L, 3085-L, 3089-L of 2003, 158-L to 163-L, 191-L of 2004 and 2837-L of 2003).

Sh. Izhar-ul-Haq, Advocate Supreme Court and Tanvir Ahmed Advocate-on-Record for Respondents (in C.P. No.3160-L and 3163-L of 2003).

Nemo for Respondents (in C.Ps. Nos.3157-L to 3159-L and 3162-L of 2003).

Date of hearing: 11th February, 2004.

SCMR 2008 SUPREME COURT 1475 #

2008 S C M R 1475

[Supreme Court of Pakistan]

Present: Javed Iqbal and Karamat Nazir Bhandari, JJ

MUHAMMAD ANWAR---Petitioner

Versus

SUPERINTENDENT OF POLICE, FAISALABAD and others---Respondents

Civil Petition No.204-L of 2001, decided on 28th April, 2003.

(On appeal from the judgment dated 7-11-2000 passed by Punjab Service Tribunal, Lahore in A. No.3079 of 1999).

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

----R.6---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Forged and false certificate---Finding of fact, interference with---Civil servant at the time of joining service, produced forged, false and fake certificate showing that he had passed class 9---Disciplinary proceedings under Punjab Police (Efficiency and Discipline) Rules, 1975, were initiated and he was dismissed from service---Service Tribunal partially allowed the appeal and dismissal from service was converted into removal from service---Plea raised by the civil servant was that the qualification required for the post was middle standard and he did not take any benefit from the certificate of class 9---Validity---Factum of forgery and production of fake certificate for procuring employment being questions of fact had been determined by the department after having a thorough probe, which was upheld by Service Tribunal---Such finding of fact could not be reversed in absence of any plausible justification which was lacking in the case---Civil servant could not have been appointed without producing the disputed certificate---No other certificate regarding Middle class was either produced before the Service Tribunal or Supreme Court hence question of determination of its genuineness or authenticity did not arise---Matter involved was not of benefit simplicitor but the civil servant had expressed his bent of mind and conduct which could not be appreciated---No question of law of public importance being involved in the matter and the judgment of Service Tribunal being well-based same did not warrant any interference---Leave to appeal was refused.

Talib H. Rizvi, Senior Advocate Supreme Court and C.M. Latif, Advocate-on-Record for petitioner.

Nemo for Respondents.

Date of hearing: 28th April, 2003.

SCMR 2008 SUPREME COURT 1477 #

2008 S C M R 1477

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J., Hamid Ali Mirza and Faqir Muhammad Khokhar, JJ

ALAM JAVED---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.481 of 2000, decided on 11th February, 2004.

(On appeal from the judgment dated 29-2-2000 of the Lahore High Court, Lahore, passed in Criminal Appeal No.532 of 1994 and Murder Reference No.232 of 1994).

Penal Code (XLV of 1860)---

----Ss. 302(a) & 302(b)---Appreciation of evidence---Abode of eye-witnesses being close to the place of occurrence, they were natural witnesses of the incident and they had fully supported the prosecution case---No material contradiction could be pointed out in the ocular testimony---Recovery of pistol at the instance of accused was proved---Nine fire-arm injuries were found on the vital parts of the body of the deceased during post-mortem examination---Accused had admitted the existence of dispute about the ownership of the agricultural land--Deceased was the first cousin of the accused---Courts below had rightly believed the prosecution evidence including the ocular account as same was confidence-inspiring---Impugned judgment confirming the death sentence of accused did not require any interference by Supreme Court---Conviction of accused under S.302(a), P.P.C. being illegal was, however, substituted with S.302(b), P.P.C.---Appeal was dismissed accordingly.

Kh. Abrar Majal, Advocate Supreme Court for Appellant.

M. Zaman Bhatti, Advocate Supreme Court for Respondent.

Date of hearing: 11th February, 2004.

SCMR 2008 SUPREME COURT 1480 #

2008 S C M R 1480

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Hamid Ali Mirza and Falak Sher, JJ

KHAN NAVEED and another---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeals Nos.98 and 99 of 2000, decided on 21st January, 2004.

(On appeal from the judgment dated 4-10-1999 in Criminal Appeals Nos.32 and 70 of 1997 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi).

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

---.S. 308---Appraisal of evidence---No ocular testimony was available in the case---Evidence of the deceased having been last-seen in the company of the accused on the roof of the house of deceased was corroborated by other evidence on record including the medical evidence and the recovery of the gun at the instance of accused which had matched with crime-empties recovered from the field from which the dead body of the deceased was recovered---Prosecution witnesses had no animus for false implication of accused in the crime---Accused being the only single person held liable for the murder, his mistaken identity or substitution in place of the real culprit was out of question---Prosecution .evidence was reliable and confidence inspiring---Both the Courts below, after proper appreciation and scrutiny of evidence, had reached the conclusion that the accused was minor at the time of commission of offence, but he had attained sufficient maturity, which finding in the circumstances was not to be disturbed by the Supreme Court in its Constitutional jurisdiction---Conviction of accused under S.308, P.P.C. being legal and proper was upheld---However, sentence of seven years' R.I. awarded to accused was inadequate keeping in view the murder of a young person of sixteen years of age in a callous and cruel manner and the same was enhanced to fourteen years' R.I. as Ta'zir---Appeal was disposed of accordingly.

(b) Precedents---

----Utility---Cases already decided can hardly be of any assistance on account of the diverse nature and distinguishable features of each case and in such a situation rules or principles of general application cannot be laid down.

M. Munir Peracha, Advocate Supreme Court and Ejaz Muhammad Khan Advocate-on-Record for Appellant (in Criminal Appeal No.98 of 2000 and for Respondent No.1 in Criminal Appeal No.99 of 2000).

Raja M. Ibrahim Satti, Advocate Supreme Court and Imtiaz Muhammad Khan Advocate-on-Record for Appellant (in Criminal Appeal No.99 of 2000).

M. Zaman Bhatti, Advocate-on-Record for the State.

Date of hearing: 21st January, 2004.

SCMR 2008 SUPREME COURT 1486 #

2008 S C M R 1486

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal, Hamid Ali Mirza and Khalil-ur-Rehman Ramday, JJ

AFTAB AHMAD---Appellant

Versus

GOVERNMENT OF THE PUNJAB through Secretary, Health Department, Civil Secretariat, Lahore and another---Respondents

Civil Appeal No.1725 of 1998, decided on 13th January, 2004.

(On appeal from the order dated 9-7-1997 of a Division Bench of the Lahore High Court passed in I.C.A. No.388 of 1997).

Constitution of Pakistan (1973)---

----Art. 185(3)---Appointment for post of Drug Inspector---Vested right---Grievance of the petitioner was that he had been working as Drug Inspector for six years---Appointment of the petitioner had been extended from time to time by the Chief Minister of the Province---Services of the petitioner were terminated and Public Service Commission invited applications for the post---Petitioner was not even called for test by Public Service Commission on account of his poor merit and High Court declined to interfere with the order passed by the Commission-Validity-Appellant had failed to show that initially his appointment was made in prescribed manner or that he was regularly appointed---No person inferior to him in merit had been invited by Public Service Commission to compete for the post in question---When appellant was not possessed of any right to continue in service and when he was also not possessed of any right to be called for a test by the Commission, Supreme Court declined to interfere in the judgment passed by High Court---Leave to appeal was refused.

Appellant in person.

M. Zaman Bhatti, Advocate Supreme Court for Respondents.

Date of hearing: 13th January, 2004.

SCMR 2008 SUPREME COURT 1489 #

2008 S C M R 1489

[Supreme Court of Pakistan]

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

DOST MUHAMMAD---Petitioner

Versus

ARSHAD JAVED, ADDITIONAL SESSION JUDGE and another---Respondents

Criminal Petition No.857-L of 2003, decided on 3rd March, 2004.

(On appeal from the order dated 9-12-2003 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.264-T of 2003).

Criminal Procedure Code (V of 1898)---

----S. 526---Penal Code (XLV of 1860), Ss.302/324/148/149/109---Constitution of Pakistan (1973), Art.l85(3)---Transfer of case---Grant of bail to one accused by the Trial Court by itself was not a valid ground for seeking transfer of case from that Court---If the complainant petitioner was dissatisfied with the said order, he could challenge the same before the High Court---No ground for interference was made out with the impugned order---Leave to appeal was refused to the petitioner accordingly.

Q.M. Saleem Senior Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record (absent) for Petitioner.

Nemo for Respondents.

Date of hearing: 3rd March, 2004.

SCMR 2008 SUPREME COURT 1490 #

2008 S C M R 1490

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Mian Muhammad Ajmal and Khalil-ur-Rehman Ramday, JJ

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman, Lahore and 3 others---Petitioners

Versus

SHAUKAT FARHAN and 9 others---Respondents

Civil Petitions Nos.204-L to 213-L of 2004, decided on 18th February, 2004.

(On appeal from the judgment dated 8-11-2003 of the Punjab Service Tribunal, Lahore passed in Appeals Nos.466-L/CS to 474-L/CS of 2002).

Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978---

----R. 4---Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Constitution of Pakistan (1973), Art.212(3)---Remand of case by Service Tribunal---Factual controversy---Failure to give opportunity of hearing---Respondents were Meter Readers in Water and Power Development Authority and were working on contract basis---On the allegations of fake meter readings, contracts of respondents were not extended---Service Tribunal allowed the appeals filed by the respondents and remanded the case to authorities for deciding the same after providing opportunity of hearing to the respondents---Validity---Respondents' contracts were not extended because there were fake meter reading in their record---Service Tribunal had rightly remanded the case to the Authority at least to establish on record by evidence all allegations of fake meter reading on which ground their contracts were not extended---Such aspect of the case could only be set at naught in a regular inquiry after affording opportunity of hearing to the respondents and examining the record in accordance with law---Merely on the basis of allegation of fake meter reading, it was not' possible to hold that the allegation was proved against them---Since the Authority itself had imposed a condition for extending or otherwise of the contracts of the respondents, it had an obligation to prove the same accordingly---Service Tribunal was justified in remanding the case to the Authority for proceeding afresh---Leave to appeal was refused.

Aurangzeb Mirza, Advocate Supreme Court and Mehmoodul Islam, Advocate-on-Record for Petitioners (in all C.Ps.).

Syed Aaqa Asif Jafri, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Respondents (in C.Ps. Nos.204, 206, 207, and 210-L to 213-L of 2003).

Nemo for Respondents (in C.Ps.205, 208 and 209-L of 2003).

Date of hearing: 18th February, 2004.

SCMR 2008 SUPREME COURT 1493 #

2008 S C M R 1493

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

BARKAAT AHMAD---Petitioner

Versus

THE STATE---Respondent

Jail Petition No.446 of 2002, decided on 19th February, 2004

(On appeal from the judgment dated 31-10-2002 in Criminal Appeal No.147 of 1998, Murder Reference No.161 of 1998 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi).

Penal Code (XLV of 1860)----

----Ss. 302(b), 324 & 337-D---Constitution of Pakistan (1973), Art.185(3)---Motive assigned by the prosecution for the occurrence appeared to be sound and convincing which stood proved on record---No animus was assigned to the eye-witnesses including the injured witness against the accused and their testimony was unimpeachable and confidence inspiring---Ocular evidence was corroborated by medical evidence and unexplained abscondence of accused for more than three years after the occurrence---Impugned judgment of High Court did not suffer from any misreading or non-reading of evidence on record or any legal or factual infirmity---Leave to appeal was declined to accused by Supreme Court accordingly.

Ibrahim v. The State 1969 SCMR 773; Said Shah v. The State NLR 1988 Criminal 381; Shivaji Sahebrao Bobade and another v. State of Maharashtra AIR 1973 SC 2622; Ibrahim and another v. The State 1968 PCr.LJ 1784; Medical Jurisprudence and Toxicology, First Edition by Dr. K.S. Narayan Reddy, at p.167 column 1; Ghulam Qadir v. The State PLD 1967 Pesh. 269; Nawaz Ali and another v. The State 1981 SCMR 132; Javed Iqbal v. The State 1994 PCr.LJ 1069; Ata Muhammad and another v. The State 1995 SCMR 599 and Basharat and another v. The State 1995 SCMR 1735 ref.

M. Zaman Bhatti, Advocate Supreme Court for petitioner.

Nemo for the State.

Date of hearing: 19th February, 2004.

SCMR 2008 SUPREME COURT 1498 #

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.

SCMR 2008 SUPREME COURT 1504 #

2007 S C M R 1504

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

ATHAR SAEED ANWAR----Petitioner

Versus

DEPUTY COMMISSIONER, SAHIWAL and another----Respondents

Civil Petition No.3117-L of 2001, decided on 25th October, 2005.

(On appeal from judgment, dated 13-7-2001 passed by the learned Punjab Service Tribunal, Lahore in Appeal No.2613 of 2000).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----Rr. 4(l)(b)(v) & 7---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Petitioner was dismissed from service after charge-sheeting and holding inquiry against him on certain allegations---Inquiry against petitioner was conducted by a Magistrate in conformity with Punjab Civil Servants (Efficiency and Discipline) Rules, 1999 and petitioner was found guilty of charges after affording him reasonable opportunity of hearing and defence---Petitioner was dismissed from service by competent Authority---Service Tribunal also took pains to re-examine case of petitioner on merits, but dismissed his appeal---Findings of fact concurrently recorded by Departmental Authorities as well as the Service Tribunal, need not be substituted by Supreme Court without their being any exceptional circumstances---Impugned judgment did not suffer from any legal infirmity so as to warrant interference by Supreme Court---Petition for leave to appeal not involving any substantial question of law of public importance within the meaning of Art.212(3) of the Constitution, was dismissed.

Muhammad Iqbal Khan, Advocate Supreme Court and Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 25th October, 2005.

2008 S C M R 1513

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar and Karamat Nazir Bhandari, JJ

Syed FIDA HUSSAIN KAZMI----Petitioner

Versus

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

Civil Petition No.3583/L of 2002, decided on 29th November, 2005.

Railways Servants (Efficiency and Discipline) Rules, 1975---

----R. 4(1)(b)(ii) & (iv)---Constitution of Pakistan (1973), Art.212(3)---Penalty of dismissal from service---Conversion into compulsory retirement---Petitioner did not press his petition on merits, but had sought indulgence of Supreme Court for conversion of extreme penalty of dismissal from service into compulsory retirement from service---Extreme penalty of dismissal of petitioner from service did not commensurate with the nature of his misconduct in peculiar facts and circumstances of the case---Petition for leave to appeal was converted into appeal and same was partly allowed---Impugned orders of dismissal from service, were modified to the extent that penalty of dismissal of petitioner from service was converted into compulsory retirement from service.

Muhammad Iqbal Khan, Advocate Supreme Court and Muhammad Ozair Chughtai, Advocate-on-Record for Petitioner.

Zubair Khalid, A.A.-G., Punjab and Asif Riaz Inspector Legal, Sahiwal for Respondents.

SCMR 2008 SUPREME COURT 1514 #

2008 S C M R 1514

[Supreme Court of Pakistan]

Present: Hamid Ali Mirza and Faqir Muhammad Khokhar, JJ

Dr. SHIREEN QASIM KHAN----Petitioner

Versus

Dr. ASHFAQUE AHMED SHARIF----Respondent

Civil Petition No.510-K of 2005, decided on 14th July, 2005.

(On appeal from the order, dated 30-6-2005 of the High Court of Sindh, passed in C.P. No.S-286 of 2005).

Guardians and Wards Act (VIII of 1890)---

----Ss. 25 & 26---Constitution of Pakistan (1973), Art.185(3)---Custody of minor---Minor having constantly remained in custody of petitioner/mother since separation, High Court directed certain arrangements to be made for visit and temporary custody of minor by respondent father---Such arrangements made by impugned order appeared to be just, equitable and proper, considering the fact that. main appeal was pending before Appellate Court below---Petitioner mother had not made compliance of order passed by High Court and had not handed over custody of minor to respondent despite 2/3rd period of vacation had passed---Minor produced by petitioner in the Court was given in custody of respondent/father who would keep the custody of minor in terms of order passed by High Court---Matter being of custody of minor required speedy disposal---Appellate Court below should dispose of appeal pending before it within specified period---No case for grant of leave to appeal having been made out, petition was dismissed.

Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Sh. Faqir Muhammad Javed, Advocate Supreme Court for Respondent.

SCMR 2008 SUPREME COURT 1516 #

2008 S C M R 1516

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

HABIB BANK LIMITED---Petitioner

Versus

GHULAM MUSTAFA KHAIRATI----Respondent

Civil Petition No.411-K of 2004, decided on 10th October, 2005.

(On appeal from the order, dated 12-3-2004 passed by Federal Service Tribunal at Karachi in Appeal No.1472(K) of 1998).

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

----Ss. 2-A & 4---Employee of Nationalized Institution---Privatization of such Institution during pendency of appeal by its employee before Service Tribunal---Effect---Such subsequent development would neither deprive such employee of his status as civil servant nor oust jurisdiction of Service Tribunal to proceed with pending appeal---Principles.

Mere fact of privatization of Nationalized Institution by way of transfer/sale of its controlling share by the Federal Government to a private party would not be sufficient to oust the jurisdiction of the Service Tribunal to proceed with the case of an employee of such institution as at the time of filing of the appeal before the Tribunal he was a civil servant as provided by section 2-A of Service Tribunals Act, 1973 and a subsequent development would not deprive or strip such employee of his status as civil servant would have no adverse effect on the pending appeal.

(b) First Information Report---

----Registration of F.I.R. against a person---Effect---Mere allegation of commission of an offence and registration of F.I.R. against a person would not ipso facto make him guilty, rather he would be presumed to be innocent until convicted by a competent Court---Principles.

Mere allegation of commission of an offence against a person and registration of F.I.R. in respect of a certain offence or more than one offence against such person would not ipso facto make him guilty of commission of such offence and he would continue to enjoy the presumption of innocence until convicted by a Court of competent jurisdiction after a proper trial with opportunity to defend himself on the allegations levelled against him.

----R. 15---Termination of service in lieu of pay for notice period---Senior Executive Vice-President---Non-performance of duties by employee due to his arrest in a criminal case---Imposition of such penalty by Authority for having lost faith and confidence in employee and for not keeping such post vacant for indefinite period-Validity-Mere registration of criminal case against employee would not ipso facto make him guilty of commission of offence---Employee would continue to enjoy presumption of innocence until convicted by competent Court after trial---Authority could have posted another officer on such post till decision of criminal case---Employee on conviction in criminal case would have lost his job---Authority during pendency of criminal case could institute departmental proceedings against employee for his alleged criminal acts found to be false subsequently---Simpliciter termination of service of employee under R.15 of Habib Bank Limited (Service) Rules, 1981 for having lost trust and confidence of competent authority was an illegal order.

(d) Civil service---

----Initiation of departmental proceedings against civil servant before or after his acquittal in criminal case---Principal.

Before the quashment of F.I.R. and the pendency of criminal case the authority can initiate departmental proceedings as the criminal and departmental proceedings are entirely different not being co-extensive nor inter-connected. Even after acquittal of civil servant in criminal trial, departmental proceedings could have been instituted as these are concerned with the service discipline, good conduct, integrity and efficiency of civil servant.

Syed Muhammad Iqbal Jafri v. Registrar, Lahore High Court 2004 PLC (C.S.) 809 rel.

(e) Civil service---

----Removal/dismissal/termination of services of an employee of nationalized Bank having no statutory rules---Validity---Such penalty could not be imposed on employee without issuing him show-cause notice calling upon his explanation and holding of an inquiry, if required, into allegations---Mere fact that existing Service Rules of Bank did not have statutory backing would not give unlimited, unfettered and absolute power to competent authority to ignore same and deprive employee of his right of access to natural justice.

Arshad Jamal v. N.-W.F.P. Forest Development Corporation and others 2004 PLC (C.S.) 802; The Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh and others PLD 2001 SC 176; Managing Director, Sui Southern Gas Company Limited, Karachi v. Ghulam Abbas and others 2003 PLC (C.S.) 796; Nazakat Ali v. WAPDA through Manager and others 2004 SCMR 145 and Anisa Rehman v. P.I.A.C. 1994 SCMR 2232 rel.

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

----S. 4---Appeal---Time-barred appeal---Condonation of delay---Validity---Discretion of condoning delay in filing appeal, if legally, judiciously and properly exercised would not be interfered with.

Managing Director, Sui Southern Gas Company Limited Karachi v. Ghulam Abbas and others 2003 PLC (C.S.) 796 and Nazakat Ali v. WAPDA through Manager and others 2004 SCMR 145 rel.

Shahid Anwar Bajwa, Advocate Supreme Court and Ahmedullah Faruqi, Advocate-on-Record for Petitioner.

Suleman Habibullah, Advocate-on-Record for Respondent.

SCMR 2008 SUPREME COURT 1525 #

2008 SCMR 1525

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Abdul Hameed Dogar and Faqir Muhammad Khokhar, JJ

ALLIED BANK OF PAKISTAN LTD.----Petitioners

Versus

Syed NASIR ABBAS NAQVI and others----Respondents

Civil Petitions Nos.1859 and 2617 of 2003, decided on 22nd September, 2005.

(On appeal from judgment, dated 2-7-2003 of the Lahore High Court, Rawalpindi passed in Writ Petition No.679 of 2002).

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

----S. 7---Industrial Relations Ordinance (XXIII of 1969), S.25-A---Constitution of Pakistan (1973), Arts.185(3) & 199---Constitutional petition---Dismissal from service---Dismissal of grievance petition and appeal by Labour Court and Appellate Tribunal respectively---High Court, in constitutional jurisdiction, directed reinstatement of employee after substituting penalty of dismissal from service to withholding of two increments---Validity---Supreme Court granted leave to appeal to examine, inter alia, question of jurisdiction of High Court in matter of alteration of penalty in its writ jurisdiction.

Pakistan Tobacco Company v. Channa Khan 1980 PLC 981 and Brig. (Retd.) F.B. Ali v. The State PLD 1975 SC 506 ref.

Shahid Anwar Bajwa, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner (in Civil Petition No.1859 of 2003).

Respondent in person (in Civil Petition No.1859 of 2003).

Petitioner in person (in Civil Petition No.2617 of 2003).

Shahid Anwar Bajwa, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondent No.1 (in Civil Petition No.2617 of 2003).

SCMR 2008 SUPREME COURT 1527 #

2008 S C M R 1527

[Supreme Court of Pakistan]

Present: Falak Sher and Tassaduq Hussain Jillani, JJ

MUHAMMAD ABBAS alias ABBASIO----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.837-L of 2002, decided on 19th November, 2004.

(On appeal from the order, dated 19-9-2002 passed by Lahore High Court, Lahore in Criminal Appeal No.412 of 1998 and Murder Reference No.299 of 1998).

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

----S. 302(b)---Constitution of Pakistan (1973), Art.185(3)---Occurrence had taken place in broad-daylight---F.I.R. had been lodged within 15 minutes of the incident---Specific role was assigned to accused---Statement of the complainant was consistent with the version given in the F.I.R. which stood corroborated by other eye-witness, medical evidence and the evidence of recovery---Mere relationship of eye-witnesses with the deceased, in circumstances, would not discredit them---Accused had acted in a brutal manner on Eid day and killed the deceased---Sentence of death awarded to accused, therefore, did not call for interference---Concurrent findings of both the Courts below were unexceptionable---Leave to appeal was refused to accused accordingly.

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

----S. 302(b)---Appreciation of evidence---Related witness---Mere relationship would not discredit a witness unless his evidence does not inspire confidence, i.e. is discrepant and is belied by medical evidence, or he had any motive to falsely implicate the accused.

Muhammad Saeed Ansari, Advocate Supreme Court and Tanvir Ahmad Advocate-on-Record for Petitioner.

Nemo for the State.

SCMR 2008 SUPREME COURT 1530 #

2008 S C M R 1530

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

DILSHAD KHAN LODHI----Petitioner

Versus

ALLIED BANK OF PAKISTAN and others----Respondents

C.P.L.A. No.452-K of 2005, decided on 2nd November, 2005.

(On appeal from order of Sindh High Court, Hyderabad Circuit, dated 14-3-2005 passed in Labour Appeal No.107 of 2004).

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

----S. 2(i)---Status of employee, whether workman or officer---Determination---Mere designation of a person, amount of emoluments drawn by him or holding a power of attorney on behalf of employer, by itself, would not be the sole criteria for determining his status.

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

----S. 2(i)---Status of employee of Bank, whether workman or officer---Determination---Employee of Bank being an Officer Grade-II heading a department of Bank independently and supervising work of five persons had no power of hire and fire---Employee preliminary was not employed as workman for doing manual or clerical or skilled or unskilled work---Nature and duties performed by such employee primarily and essentially appearing to be of managerial and supervisory nature---Such employee would fall beyond the ambit and purview of the term "workman".

----S. 2(i)-"Workman"-Misconduct-Legal duty of employer would be to hold an enquiry in order to arrive at truth of allegation and afford an opportunity of reasonable defence to person concerned.

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

----Art. 185(3)---Petition for leave to appeal---Concurrent findings of fact by Courts below---Such findings not suffering from misreading or non-reading of record or omission to consider a material document having bearing on the facts of case---Supreme Court dismissed petition in circumstances.

Suleman Habibullah, Advocate-on-Record/Advocate Supreme Court for Petitioner.

Shahid Anwar Bajwa, Advocate Supreme Court and Ahmadullah Farooqi, Advocate-on-Record for Respondents Nos. 1 to 3.

Nemo for Respondent No.4.

Date of hearing: 31st October, 2005.

2008 S C M R 1538

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Saiyed Saeed Ashhad, JJ

COLLECTOR OF CUSTOMS, PORT MUHAMMAD BIN QASIM, KARACHI----Petitioner

Versus

Messrs KAGHAN GHEE MILLS (PVT.) LTD.----Respondent

Civil Petitions Nos. 884-K and 885-K of 2004, decided on 10th November, 2005.

(On appeal from judgment of Sindh High Court Karachi, dated 13-10-2004 passed in Special Customs Appeals Nos. 79 and 80 of 2003).

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

----Ss. 15 & 17---RBD Palm oil unfit for human consumption, import of---Confiscation of such oil and imposition of penalty---Validity---Test reports of such oil showing same to be fit for human consumption at the time of its import, but had become unfit due to passage of time---Making improper samples of such oil or subjecting same to processing could make same unfit for human consumption---Test report indicated that such oil, after undergoing further process of Ghee manufacturing could become fit for human consumption---Appellate Tribunal set aside impugned order with direction to importer to carry out process of manufacturing Ghee from such oil subject to scrutiny by representative of Health Department and release such quantity of oil only if found fit for human consumption.

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

----Ss. 194 & 196---Decision of Appellate Tribunal on factual aspect of case---Appeal to High Court---Maintainability---Decision of Tribunal neither suffering from any illegality or infirmity nor contrary to or in violation of any provision of Customs Act, 1969 or any other law---No question of law was before Tribunal for adjudication, which was necessary condition for maintainability of appeal under S.196 of the Customs Act, 1969---High Court dismissed appeal in circumstances.

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

Nemo for Respondent (in both Petitions).

Date of hearing: 10th November, 2005.

SCMR 2008 SUPREME COURT 1541 #

2008 S C M R 1541

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ.

Haji DILDAR KHAN and another----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.293 of 1998, decided on 5th May, 2008.

(On appeal from the judgment, dated 6-11-1998 passed by the Full' Bench of the Lahore High Court, Lahore in Criminal Original No.57 of 1998).

Constitution of Pakistan (1973)---

----Arts. 204 & 185(2)(c)---Contempt of Court Act (LXIV of 1976), S.3---Contempt of Court---Accused had placed himself at the mercy of Supreme Court stating that he had highest regard for the superior judiciary of Pakistan and could not even think of committing contempt of Court and that he had neither any intention to commit contempt of Court nor had ever done so---Accused also felt sorry and expressed regret if his remarks had given the impression of disrespect to any Judge of the High Court---Supreme Court in view of the apology tendered by the accused and having regard to the facts and circumstances of the case, allowed the appeal and set aside his conviction and sentence---Licence of the accused to practice as an Advocate was also restored.

Syed Masroor Ahsan and others v. Ardeshir Cowasjee and others PLD 1998 SC 823 ref.

Appellant No.2 in Person with Haji Rafi Siddiqui, Advocate-on-Record.

M. Siddique Khan, Deputy Prosecutor-General for the State.

Date of hearing: 5th May, 2008.

SCMR 2008 SUPREME COURT 1544 #

2008 SCMR 1544

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

MUHAMMAD IDREES and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.99 and 100 of 2004, decided on 28th May, '2008.

(On appeal from the judgment, dated 23-10-2002 passed by the Lahore High Court, Multan Bench, in Criminal Appeal No.36 of 2002 and Murder Reference No.7 of 2002).

Penal Code (XLV of 1860)---

----Ss. 302(b), 394 & 411---Anti-Terrorism Act (XXVII of 1997), S.7(a)---Appraisal of evidence---Accused were named in the F.I.R. with the specific role assigned to each of them---Eye-witnesses having also been named in the F.I.R., the possibility of getting the case registered after deliberations had to be ruled out---Ocular testimony did not suffer from any discrepancy, which had given consistent and coherent details of the occurrence and was corroborated by medical evidence---Deceased in his dying declaration had charged the accused giving their names for firing on him as well as their companion, who too had sustained injuries in the course of occurrence---Name of the complainant was also mentioned in the dying declaration and the same could not be disbelieved---Injured culprit had, soon after the occurrence, disclosed the names of his companions in consequence whereof they were arrested by the police and crime weapons were recovered from them, which had matched with the empties secured from the place of occurrence as per report of the Forensic Science Laboratory---No previous enmity existed between the parties---Prosecution had failed to establish that the acts done by the accused had created sense of fear or insecurity in public, nor any section of public or community or any sect was shown to have been affected, as the incident had taken place at night on a canal bank, which by no stretch of imagination could be termed as a public place, therefore, S.7 of the Anti-Terrorism Act, 1997, was not attracted in the case and the accused were acquitted of that charge---Charges against the accused for the offences of murder and robbery having been established beyond shadow of doubt, their convictions for the same were maintained---Firing in the case was attributed to all the accused and the injuries caused by them had collectively culminated in death of the deceased, therefore, death awarded to each of them under S.302(b), P.P.C. was commuted to imprisonment for life in the interest of justice---Rest of the sentences of accused were upheld---All the sentences were directed to run concurrently inter se.

Mohabbat Ali and another v. The State and another 2007 SCMR 142; Fazal Dad v. Col (Rtd.). Ghulam Muhammad Malik and others PLD 2007 SC 571 and Mst. Najma-un-Nisa v. Judge, Special Court Constituted under Anti-Terrorism Act, 1997 2003 SCMR 1323 ref.

Sardar Muhammad Siddique Khan, Advocate Supreme Court for Appellants (in both cases).

Ch. Munir Sadiq, Deputy Prosecutor-General, Punjab for the State (in both cases).

Date of hearing: 26th May, 2008.

SCMR 2008 SUPREME COURT 1549 #

2008 SCMR 1549

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

MUHAMMAD YAQOOB----Appellant

Versus

MANZOOR HUSSAIN and 3 others----Respondents

Criminal Appeal No.21 of 2006, decided on 16th May, 2008.

(On appeal from the judgment, dated 3-12-2003 passed by a learned Division Bench of the Lahore High Court, Lahore in Criminal Appeal No.131 of 2000).

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

----S. 302(b)/34---Criminal Procedure Code (V of 1898), S.417---Constitution of Pakistan (1973), Art.185---Appeal against acquittal---Reappraisal of evidence---Principles and scope---Law relating to reappraisal of evidence in appeals against acquittal is stringent, because the presumption regarding innocence of accused is doubled and multiplied after accused is found not guilty by a competent Court of law and such finding cannot be upset, disturbed and reversed except when the impugned judgment is found to be perverse, shocking, alarming, artificial and suffering from jurisdictional error or misreading or non-reading of evidence---Judgment of acquittal under the law shall not be disturbed even though a second opinion may be reasonably possible in the case.

Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477 ref.

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

----S. 302(b)/34---Medical evidence---Application and scope---Medical evidence may confirm the ocular evidence with regard to 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.

----S. 302(b)/34---Abscondence of accused---Nature and scope---Mere abscondence of an accused is not a conclusive proof of his guilt, but is only a suspicious circumstance against him that he was found guilty of the offence---Suspicions after all are suspicions which cannot take the place of proof---Value of abscondence depends on the fact of each case---Abscondence is a supporting evidence of the guilt of accused---Abscondence of accused may be consistent with his guilt or innocence, which is to be decided in view of overall facts of the case.

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

----S. 302(b)/34---Constitution of Pakistan (1973), Art.185---Appeal against acquittal of accused by High Court---Eye-witnesses including the complainant on account of their close relationship with the deceased were interested witnesses, who appeared to be basically dishonest as they had given evidence with a motive other than of telling the truth and had even suppressed the evidence which they were supposed to know in the ordinary course of events---Injuries on the person of accused had been suppressed by the prosecution for the reasons not far to seek---Incident did not appear to have taken place in the manner as alleged---Prosecution case was pregnant with serious doubts and was full of confusions---Eyewitnesses had shown reckless disregard for the truth---Conclusions arrived at by High Court could not be said to be such that no reasonable person would conclusively reach the same---Reasons given by High Court for extending benefit of doubt to the accused were neither irrelevant nor extraneous to the record---Appeal was dismissed accordingly.

Rahimullah Jan v. Kashif and another PLD 2008 SC 298; Ghulam Murtaza and another v. Muhammad Akram and others 2007 SCMR 1549; Sikandar Hayat v. Muhammad Nawaz and others 1995 SCMR 616 and Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477 ref.

Muhammad Ilyas Siddiqui, Advocate Supreme Court for Appellant.

Dr. Babar Awan, Advocate Supreme Court, Mian Asif Mumtaz, Advocate Supreme Court, Ch. Akhtar Ali, Advocate-on-Record, Siddique Khan Baloch, Deputy Prosecutor-General, Punjab for Respondents.

Date of hearing: 16th May, 2008.

SCMR 2008 SUPREME COURT 1556 #

2008 S C M R 1556

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

NOOR MUHAMMAD----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.284 of 2007, decided on 1st February, 2008.

(On appeal from the order, dated 5-9-2007 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No.8383/B of 2006).

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

----S. 497---Penal Code (XLV of 1860), S.302/34---Constitution of Pakistan (1973), Art.185(3)---Bail, grant of---Complainant had not mentioned the name of the accused and co-accused in the F.I.R., but later on implicated them in the commission of offence through his supplementary statement recorded before the Investigating Officer on the same day without disclosing as to how he had come to know the name of the accused---Complainant had taken altogether a U-turn from his previous stand and this fact had made the case of accused one of further inquiry---Moreover, delay of 74 days in recording the statements of the prosecution witnesses having not been explained, had given rise to an inference that the second version had been introduced by the prosecution after deliberation, which was likely to adversely affect the prosecution case---Co-accused had already been granted bail by Supreme Court as such on the principle of consistency accused was also entitled to concession of bail---Petition for leave to appeal was converted into appeal and was allowed in circumstances and ad interim bail allowed to accused was confirmed accordingly.

Falak Sher alias Sheru v. The State 1995 SCMR 1350; Khalid Javed and another v. The State 2003 SCMR 1419; Muhammad Rahim and others v: Bakht Muhammad and others 2006 SCMR 1217 and Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 ref.

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

----Ss. 154, 156 & 161---"F.I.R." and "supplementary statement" of complainant---Distinction---F.I.R. is the document which is entered into the book maintained at the police station at the complaint of the informant and brings the law into motion, whereby police starts investigation of the case under S.156, Cr.P.C.---Any statement or further statement of the first informant recorded during the investigation by police would neither be equipped with First Information Report nor read as a part of the same.

Falak Sher alias Sheru v. The State 1995 SCMR 1350 and Khalid Javed and another v. The State 2003 SCMR 1419 ref.

----S. 161---Supplementary statement of complainant---Value---Any statement or further statement of the first informant recorded during investigation by the police being neither equivalent to the F.I.R. nor to be read as part of the same, its value will be determined keeping in view of the settled principles in this behalf.

Khalid Javed and another v. The State 2003 SCMR 1419 ref.

Sardar M. Latif Khan Khosa, Advocate Supreme Court and Ch. Akhtar Ali Advocate-on-Record for Petitioner.

Ch. Munir Sadiq, D.P.-G. Punjab for the State.

SCMR 2008 SUPREME COURT 1559 #

2008 SCMR 1559

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

FAIZ AHMED----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.15 of 2005, decided on 6th June, 2008.

(On appeal from the judgment, dated 14-4-2003 of the Lahore High Court, Lahore passed in Criminal Appeal No.773 of 1999 and Murder Reference No.386 of 1999).

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

----S. 302(b)---Appraisal of evidence---Sentence, reduction in---Promptly lodged F.I.R. had excluded all chances of deliberation and consultation---Accused was directly nominated in the F.I.R. with the specific role of firing resulting in the murder of the deceased---Eyewitnesses had fully supported the prosecution story and though they were related to the deceased, yet they had no previous enmity, ill-will or grudge against the accused---Eye-witnesses had remained consistent regarding time, place of occurrence and the manner in which the incident had taken place---Participation of acquitted co-accused in the occurrence being highly doubtful, case of accused was distinguishable and not at par with that of his co-accused---Impugned judgment of High Court was supported with reasons based on record and did not suffer from any misreading, non-reading or not appreciating the evidence in its true perspective---Accused was in death cell for the last about 14 years, motive was alien to him and co-accused charged for firing had been acquitted---Conviction of accused was upheld, but his sentence of death was converted to imprisonment for life with benefit of S.382-B, Cr.P.C. in circumstances.

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

---S. 302(b)--- Evidence--- Related witnesses--- Credibility--- Mere relationship of the witnesses inter se and with the deceased is not sufficient to term them as interested witnesses, unless it is found that there was any previous enmity or ill-will between the parties and the witnesses had a motive to falsely implicate the accused in a criminal case.

Malik Saeed Hassan Senior Advocate Supreme Court for Appellant.

Shabbir Lali, Additional Prosecutor-General for Respondent.

Date of hearing: 29th May, 2008.

SCMR 2008 SUPREME COURT 1565 #

2008 S C M R 1565

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan, Mian Hamid Farooq and Muhammad Farrukh Mahmud, JJ

Haji INAYAT ALI----Petitioner

Versus

SHAHZADA and others----Respondents

Criminal Petition No.488-L of 2006, decided on 8th July, 2008.

(On appeal from the judgment, dated 17-5-2006 passed by the Lahore High Court, Lahore in Criminal Appeals Nos.899 of 2001, 1090 of 2001, Criminal Revision No.625 of 2001 and Murder Reference No.324 of 2001).

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

----Ss. 302/324/337-A(ii)/34---Constitution of Pakistan (1973), Art.185(3)---Members of the accused party according to medical evidence had received injuries on the vital parts of their bodies---Father of the main accused had received fire-arm injuries while his two brothers had received injuries on their heads and the same had been suppressed by the complainant party---Was quite natural for the said accused being the son and brother of the rest of the accused to try to save their lives, who had fired only two shots from his .12 bore single barrel gun and thereafter he had neither reloaded his gun nor caused any third fire---Complainant party which felt annoyed over the behaviour of the accused had gone to the door step of their house to launch a protest---Accused had taken the plea of self-defence at the first instance, which was supported by the circumstances of the case and was closer to the truth---Reasons advanced by High Court for acquitting the accused being neither whimsical nor perverse, did not call for interference---Leave to appeal was refused to complainant in circumstances.

Ashiq Hussain alias Muhammad Ashraf v. The State PLD 1994 SC 879 ref.

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

----Ss. 302/324/337-A(ii)/34---Appreciation of evidence---Guidelines---Defence plea---Practice and procedure---All the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the question, viz. is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case---If the answer be in the affirmative, then the Court must accept the plea of the accused and act accordingly---If the answer to the question be in the negative, then the Court will not reject the defence plea as being false, but will go a step further to find out whether or not there is yet a reasonable possibility of defence plea/version being true---If the Court finds that although the accused has failed to establish his plea to the satisfaction of the Court yet his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly.

Ashiq Hussain alias Muhammad Ashraf v. The State PLD 1994 SC 879 ref.

Munir, Ahmed Bhatti, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Petitioner.

Abdul Sadiq Ch. Advocate Supreme Court for Respondents Nos.1 to 4.

Ms. Yasmin Saigol, Deputy Prosecutor-General for Respondent No.5.

Date of hearing: 8th July, 2008.

SCMR 2008 SUPREME COURT 1572 #

2008 S C M R 1572

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

FAHEEM AHMED FAROOQUI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.61 of 2008, decided on 23rd April, 2008.

(On appeal against judgment, dated 3-10-2007 of the High Court of Sindh, Karachi passed in Special A.T.A. No.4 of 2007).

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

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), S.7---Appraisal of evidence---Benefit of doubt---Prosecution evidence was highly discrepant and suffered from serious infirmities and contradictions---Except the bare allegations in the F.I.R., nothing incriminating was available on the file to connect the accused with the commission of the crime---Neither the alleged abductee had been recovered from the custody of the accused, nor any evidence was produced regarding passing of the ransom amount to him---Mere assertion of the complainant that accused had a hand in the affair and he was author of the crime, without a positive attempt on his part to substantiate the same, was of no consequence---No case of abduction or kidnapping was made out and ingredients of offences punishable under S.365-A, P.P.C. and S.7(e) of the Anti-Terrorism Act, 1997, were not attracted in the case---Alleged detention of the abductee by the accused was to extort illegal gratification and not the ransom amount---Identification parade had been held after six days of the arrest of the accused and without satisfying the requirements of law---Co-accused had been acquitted by the Trial Court on the same evidence which had been believed and relied upon against the accused, particularly when the acquittal of co-accused was not challenged either by the complainant party or by the State---Benefit of doubt was extended to accused and he was acquitted in circumstances.

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

----S. 365-A---Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of evidence---Benefit of doubt---Principles---For the purpose of giving benefit of doubt to an accused person more than one infirmity is not required---Single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge makes the whole case doubtful---Merely burden on the accused to prove his innocence does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt.

Muhammad Ashraf Kazi, Advocate Supreme Court for Appellant.

M. Qasim Mirjat, A.A.-G. for the State.

Nemo for the Complainant.

Date of hearing: 23rd April, 2008.

SCMR 2008 SUPREME COURT 1577 #

2008 S C M R 1577

[Supreme Court of Pakistan]

Present: Muhammad Akhtar Shabbir, Syed Sakhi Hussain Bokhari and Muhammad Farrukh Mahmud, JJ

UNIVERSITY OF THE PUNJAB----Petitioner

Versus

Miss WAJIHA AROOJ----Respondent

C.P.L.A. No.1145-L of 2007, decided on 21st July, 2008.

(On appeal from the judgment, dated 16-5-2007 passed by the Lahore High Court, Lahore in Civil Revision No.31 of 2007).

(a) University of the Punjab Act (IX of 1973)---

----S. 48-A---Civil Procedure Code (V of 1908), S.9---Jurisdiction of Civil Court barred under S.48-A, University of the Punjab Act, 1973---Scope and extent.

Plain reading of section 48-A, University of the Punjab Act, 1973 makes it manifestly clear that the acts, orders or proceedings passed, if in good faith, shall be final and shall not be called in question in any Court but if the acts done by public officer or functionaries of the Federal or Provincial Government are based on malice, for giving torture or to harass the concerned person, it can be assailed in the civil Court. Where action or order passed by the public officer, tribunal or authorities is within the four corners of jurisdiction, the Civil Court cannot entertain the lis. But where the order passed or act done was void, or without jurisdiction, or mala fide, or in excess of jurisdiction, or otherwise not in accordance with law, or based on fraud, the civil Court would have the jurisdiction to interfere with the same.

Where the acts done, orders passed, or proceedings taken by the University are in good faith, the University of Punjab Act would not grant civil Court the jurisdiction to adjudicate upon the question as to whether the challenged act is within the ambit of University of Punjab Act or not. The provisions of section 48-A excluding jurisdiction of the Civil Court is a mixed question of law and fact which can only be adjudicated upon by the Court after recording evidence. The Court will determine whether the act done, or order passed, or the proceedings taken have been based in good faith or otherwise and this cannot be done without recording the evidence.

By virtue of provisions of section 9, C.P.C. the Civil Courts are granted general jurisdiction to try all suits of civil nature. Civil Courts are Courts of ultimate jurisdiction and unless jurisdiction is either expressly or impliedly barred, the final decision with regard to a civil right, duty or obligation, shall be that of the Civil Courts, where allegation of mala fide action has been made in the plaint, the Court has jurisdiction to examine acts, and plaintiff would prove mala fide raised in the plaint through evidence.

Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 SC 698; Zafarul Hassan v. The Republic of Pakistan PLD 1960 SC 113 and Messrs Chalna Fibre Company v. Abdul Jabbar PLD 1968 SC 381 ref.

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

----S. 80---University of the Punjab Act (IX of 1973), S.48-A---Interpretation and scope of S.80, C.P.C.---Suit against government or public functionary---Law and practice.

By taking into consideration provisions of section 80, C.P.C. it is clear that if a proper notice is not given, or according to subsection 2, if a suit to which provisions of section 80 are applicable, is filed without having left or delivered a notice, the government shall be allowed not less than three months notice to submit written statement and absence of notice in such case will not affect the suit. Section 80 of the Civil Procedure Code is express, unequivocal, and explicit, and admits no implication. The only object of the section is to give the government or the public officer sufficient notice of the case which is proposed to be brought against it or him, so that it or he may consider the position and decide for itself or himself whether the claim of the plaintiff should be accepted or resisted. In order to enable the government or the public officer to arrive at a decision, it is necessary that it or he should be informed of the nature of the suit proposed to be filed against it or him and the facts on which the claim is founded and the relief asked for. The suit against the government, federal or provincial, or a public officer can be instituted 'without proper notice, service of prior notice is not imperative.

In case of a suit against government or public officer purported to be done in his official capacity, if no notice has been delivered to him or left at the office of such public officer, two months before filing of such suit, then the mandatory period of three months to be allowed to the government to submit its written statement, could not be curtailed on any technical ground.

If notice before filing of suit is not issued by the plaintiff to the defendant, the Court will grant three months time for submitting the written statement and without notice, the provisions of section 80 would not vitiate the proceedings of the suit.

The Court can settle any issue with regard to its own jurisdiction which shall be decided after recording the evidence and in the instant case the Court had settled the issues.

State of Madras v. C.P. Agencies and another AIR 1960 SC 1309; Mercantile Fire and General Insurance Co. of Pakistan Ltd. and another v. Controller of Insurance 1989 CLC 865 and Assistant Commissioner, Latifabad, Hyderabad and 2 others v. Messrs Muhammad Enterprises through Managing Partner PLD 1999 Kar. 329 ref.

Muhammad_Arif Raja, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 21st July, 2008.

SCMR 2008 SUPREME COURT 1584 #

2008S C M R 1584

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan and Syed Sakhi Hussain Bokhari, JJ

MUHAMMAD HABIB----Petitioner

Versus

Mst. SAFIA BIBI and others----Respondents

Civil Petition for Leave to Appeal No.1480-L of 2007, decided on 16th July, 2008.

(On appeal from the order, dated 6-8-2007 of the Lahore High Court, Lahore passed in Writ Petition No.7387 of 2007).

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

----S. 5 & Schd.---Constitution of Pakistan (1973), Art.185(3)---Suit for recovery of dowry articles by divorced wife was decreed by Family Court and amount of decree was modified and enhanced by the Appellate Court---Contention of the husband was that no such list of dowry articles was prepared at the time of marriage, same was fabricated subsequently and in absence of valid receipts of purchase of said articles, suit could not have been decreed and that Appellate Court was not legally justified to modify the decree passed by Family Court and enhance the amount---Validity---List of articles revealed that those were ordinarily given to a bride at the time of her marriage---No illegality or irregularity had been pointed out in the concurrent findings of fact recorded by the two courts below and upheld by the High Court assigning cogent and sound reasons calling for interference by Supreme Court---Impugned order did not suffer from any legal discrepancy nor any substantial question of public importance was involved in the petition against such order---Leave to appeal was declined by the Supreme Court.

Javed Bashir, Advocate Supreme Court for Petitioner.

Muzammal Akhtar Shabbir, Advocate Supreme Court for Respondent No.1.

Date of hearing: 16th July, 2008.

SCMR 2008 SUPREME COURT 1586 #

2008 SCMR 1586

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari, Syed Zawwar Hussain Jaffery and Muhammad Farrukh Mahmud, JJ

MUHAMMAD SAEED----Petitioner

Versus

GHULAM SARWAR and another----Respondents

Civil Petition No.55-L of 2008, decided on 26th June, 2008.

(On appeal from the judgment, dated 18-12-2007 of the Lahore High Court, Lahore, passed in Writ Petition No.5729 of 2007).

West Pakistan Land Revenue Rules, 1968---

----R. 17---West Pakistan Land Revenue Act (XVII of 1967), S.164---Constitution of Pakistan (1973), Arts.185(3) & 199---Lambardar, appointment of---Order passed by Board of Revenue---Interference by High Court under Art.199 of the Constitution---Scope---Order passed by Board of Revenue did not reveal any cogent ground as to why the order of appointing authority was set aside---Effect---Board of Revenue was charged with the statutory duty of interpreting the law, of applying it to individual cases coming up before it and laying down the law for the subordinates in the hierarchy to follow---Any error on the part of Board of Revenue in understanding the law, in applying it or in laying down the law, could and must be corrected in the constitutional jurisdiction of High Court, and if it was left uncorrected, same would result in subverting the rule of law---Order restoring the appointment of Lambardar as made by the appointing authority by the High Court 'did not suffer from any legal infirmity and needed no interference by the Supreme Court---Petition for leave to appeal was dismissed.

Muhammad Warrayam v. Member Board of Revenue, Punjab Lahore and 3 others 1972 SCMR 354 and Ghulam Hussain v. Ghulam Muhammad and another 1976 SCMR 75 ref.

Ch. Riyasat Ali, Advocate Supreme Court for Petitioner. Pervaiz Inayat Malik, Advocate Supreme Court for Respondents. Date of hearing: 26th June, 2008.

SCMR 2008 SUPREME COURT 1590 #

2008 S C M R 1590

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan, Zia Perwez and Mian Hamid Farooq, JJ

Mst. GHULAM FATIMA through L.Rs. and others----Petitioners

Versus

FARZAND and others----Respondents

C.R.P. No.5-L of 2008, decided on 21st July, 2008.

(Against the order, dated 3-10-2006 passed by this Court in C.P. No.2670-L of 2000).

Constitution of Pakistan (1973)---

----Art. 188---Supreme Court Rules, 1980, O.XXVI, R.1---Review of Supreme Court judgment---Scope and principles.

Case cannot be reopened on merits in review. Scope of review is very limited and review petition is not maintainable on those points which have been decided one way or the other. Moreover any dispute which has already been resolved cannot be reviewed, even if the same has been resolved illegally.

Mere incorrectness of a decision on a particular issue or a question falling for determination in a case can never be a ground for review as to permit a review on the ground of such incorrectness would amount to granting the Court a jurisdiction to hear appeal against its own judgment. The review of the judgment cannot be allowed merely on the ground that a party to it conceives himself to be dissatisfied with the decision made therein.

The review cannot be allowed to reopen the case for the purpose of affording rehearing of the points already resolved. Points already raised and considered before the Court, cannot be re-agitated in review jurisdiction which is confined to the extent of patent error or a mistake floating on the surface of record which if not corrected may perpetuate illegality and injustice. The mere fact that another view of the matter was possible or the conclusion drawn in the judgment was wrong, would not be a valid ground to review the judgment unless it is shown that the Court has failed to consider an important question of law.

In the present case, impugned order suffered from no error or mistake of law justifying review of the same. All the points agitated while arguing the review petition had been dilated upon and decided after going through entire record with care and caution. From whatever angle the matter may be examined, no case of review was made out.

The review petition was also barred by limitation. No plausible explanation had been offered for condonation of delay. The same was dismissed on both counts i.e. limitation as well as on merits.

Allah Ditta and others v. Mehrban and others 1992 SCR 145 and Sh. Mehdi Hassan v. Province of Punjab through Member, Board of Revenue and 5 others 2007 SCMR 755 fol.

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

Nemo for Respondents.

SCMR 2008 SUPREME COURT 1593 #

2008 S C M R 1593

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan, Mian Hamid Farooq and Muhammad Farrukh Mahmud, JJ

MUHAMMAD NAWAZ and others----Petitioners

Versus

SARDARA----Respondent

Civil Miscellaneous Petitioners Nos.964-L and 965-L of 2006 with Civil Petitions Nos.2285-L and 2286 of 2004, decided on 9th July, 2008.

(On appeal from the judgment, dated 20-4-2004 passed by the Lahore High Court, Lahore in Civil Revisions Nos.927 and 298 of 2002).

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

----Art. 185---Powers of Supreme Court to exercise discretion to condone delay caused in filing an appeal or to allow conversion of petition for leave to appeal into appeal---Scope---Principles.

Supreme Court in appropriate eases and in exercise of its discretion has ample powers to condone delay caused in filing an appeal or to allow conversion of the petition into appeal, provided sufficient and reasonable cause, within the parameters of law, has been shown for condonation of delay in filing direct appeal. In such like cases it should also be kept in view that no negligence and carelessness or even lethargy could be attributed to a litigant and his conduct in prosecuting the case is bona fide and above-board. In order to examine conduct of a litigant, one has to see and overhaul the grounds stated in his application for condonation of delay. In order to examine as to whether the petitioners, in their applications', have made out asufficient cause' for conversion of the, petition into appeal, when it had already become barred by time, Court could advert to petitioners' applications.

Ghulam Muhammad and others v. Government of Balochistan and others 2007 SCMR 41 ref.

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

----Art. 185(2)(d)---"Valuation for the purposes of court-fee and jurisdiction" and "value of the subject-matter of the suit" are two distinct connotations, not synonymous and convey different meanings---According to Art.185(2)(d) of the Constitution, it is the value of the subject-matter of the dispute in the court of first instance that determines the remedy by way of appeal or petition and not the valuation of suit fixed by the plaintiff for purposes of court-fee and jurisdiction.

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

---Art. 185(2)(d)---Petition for leave to appeal---Valuation for purposes of court-fee---In the present case, in one suit disputed land was sold against consideration of Rs.90,000, while in the other suit it was for Rs.50,000, thus the subject-matter of dispute in both the suits was not less than Rs.50,000 and case was covered under Art.185(2)(d) of the Constitution and from the very inception judgments of the High Court could only be challenged through appeals, which were, though competent, yet were not filed within the limitation period---Conduct of the petitioners as well as their counsel was negligent, careless and was not upto the mark---Petitions for leave to appeal" were dismissed in circumstances.

Khizar Abbas Khan', Advocate Supreme Court for Petitioners.

Muhammad Hussain Awan, Advocate Supreme Court for Respondent.

Date of hearing: 9th July, 2008.

SCMR 2008 SUPREME COURT 1599 #

2008 S C M R 1599

[Supreme Court of Pakistan]

Present: Muhammad Akhtar Shabbir and Syed Sakhi Hussain Bokhari, JJ

SHAHID----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.142-L of 2008, decided on 18th June, 2008.

(Against the order of the Lahore High Court, Lahore, dated 29-4-2008 passed in Criminal Miscellaneous No.1 of 2008 in Criminal Appeal No.82/J of 2007).

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), S.302(b)---Constitution of Pakistan (1973), Art.185(3)---Suspension of sentence---Trial Court after appraising the prosecution evidence, found the petitioner guilty of the offence and convicted him to life imprisonment---Appeal against conviction was sub judice before the High Court---Deeper appreciation of evidence at stage of petition for leave to appeal could not be undertaken by Supreme Court---Prima facie, the case against petitioner had been established and he had been convicted and sentenced to life imprisonment which was heavier; it was not appropriate to interfere and suspend the sentence of the petitioner at present stage---Petition being devoid of any force was dismissed and leave to appeal was refused accordingly.

Naveed Inayat Malik, Advocate Supreme Court for Petitioner.

Nemo for the State.

SCMR 2008 SUPREME COURT 1601 #

2008 S C M R 1601

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan and Syed Sakhi Hussain Bokhari, JJ

MUHAMMAD IQBAL alias BALI----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.507-L of 2007, decided on 15th July, 2008.

(Against the judgment, dated 12-9-2007 of the Lahore High Court, Lahore passed in Criminal Appeal No.38 of 2007).

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

---S. 9(c)---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of evidence---Sentence, reduction in---Petitioner contended that he would not argue the case on merits and would request for modification in the sentence, already undergone by him---Petitioner was in jail since his arrest on 28-3-2005--Meagre quantity of `Charas' weighing 1100 grams had been recovered from the bag carried by the petitioner and thrown in the street---Petitioner had already served out a major portion of his substantive sentence, extending over 3 years---Petition for leave to appeal was converted into appeal and partly allowed---Sentence awarded to petitioner was reduced from 7 years' R.I. to 4 years' R.I. to meet the ends of justice---Sentence of fine, however would remain intact.

Mian Abdul Ghaffar, Advocate Supreme Court and Mahmood-ul-Islam, Advocate-on-Record for Petitioner.

Amanat Ali Bukhari, Deputy Prosecutor-General for the State.

Date of hearing: 15th July, 2008.

SCMR 2008 SUPREME COURT 1602 #

2008 S C M R 1602

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi, Mian Hamid Farooq and Muhammad Farrukh Mahmud, JJ

Mst. YASMIN BUTT----Petitioner

Versus

MAJID BAIG alias BOBBY PEHLWAN and another----Respondents

Criminal Petition No.20-L of 2008, decided on 5th May, 2008.

(On appeal from the order, dated 6-2-2008 of the Lahore High Court, Lahore, passed in Criminal Miscellaneous No.9398/BS of 2007).

Criminal Procedure Code (V of 1898)---

----S. 498-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Pre-arrest bail---Principles---Delay in registration of F.I.R.---Violence marks, absence of---Doubtful medical report---Prosecutrix was a 20 years old girl and was alleged to have been raped by accused in her own house on pistol point---Trial Court allowed pre-arrest bail to accused on the ground that there was a delay of ten days in registration of F.I.R. and according to medical report neither there were violence marks on the body of victim nor her hymen was torn---High Court declined to cancel pre-arrest bail granted by Trial Court---Validity---Reasons for delay in lodging F.I.R. were mentioned in the F.I.R. itself---In such-like cases victims and their parents think several times before reporting matter to police as it becomes difficult to marry victim respectably after such tragedy-Trial Court mentioned that no marks of violence were observed on the person of victim however, the Court had overlooked the fact that accused was armed with a .30 bore pistol and had frightened the victim to the extent that resistance was not possible---During investigation, statements of victim were recorded under Ss.161 & 164, Cr.P.C. wherein she had given details of occurrence and fully implicated the accused---Medical Officer opined that hymen of the victim was intact having normal size and size of opening was tip of finger, while according to the opinion of Medical Board vagina permitted two fingers---Factum of admission of two fingers, prima facie, supported story of victim and non-detection of semen would not benefit accused at bail stage as penetration was enough to constitute the offence---Variance in medical report, prima facie, showed that Medical Officer who initially examined the victim was approached by accused---Accused had not even alleged mala fide on the part of complainant in application seeking pre-arrest bail, nor it was mentioned therein as to why he was involved in the case---High Court and Trial Court failed to consider the guiding principles relating to pre-arrest bail---Supreme Court converted petition for leave to appeal in appeal and set aside pre-arrest bail granted to accused by Trial Court, which was maintained by High Court---Appeal was allowed.

Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82 ref.

Malik Amjad Pervez, Advocate Supreme Court for Petitioner.

Malik Qamar Afzal, Advocate Supreme Court with Ch. Muhammad Akram Advocate-on-Record for Respondent No. 1.

Ch. Munir Sadiq, D.P.-G. for Respondent No.2.

SCMR 2008 SUPREME COURT 1607 #

2008 S C M R 1607

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan, Zia Perwez, and Mian Hamid Farooq, JJ

GHULAM HABIB----Petitioner

Versus

MUHAMMAD SULEMAN and 2 others----Respondents

Criminal Petition No.9-L of 2007, decided on 24th July, 2008.

(On appeal from the judgment, dated 29-11-2006 of the Lahore High Court, Lahore passed in Criminal Appeal No.1051 of 2001 and Murder Reference No.424 of 2001).

Penal Code (XLV of 1860)---

----Ss. 302/201/34---Constitution of Pakistan (1973), Art.185(3)---

Appeal against acquittal---Principles---No misreading or non-appraisal of evidence warranting interference by Supreme Court was pointed out---Nothing was wrong with the reasons advanced by the High Court while passing finding of acquittal of the accused persons---Grounds which found favour with the High Court in passing the impugned judgment were neither fanciful nor conjectural and were backed by the material on record---Supreme Court was not supposed to interfere in the judgment of acquittal unless very strong reasons appeared on the case regarding perversity of the judgment---Material on record having properly been appreciated and evaluated by the High Court, Supreme Court declined interference.

Sheikh Khizar Hayat, Advocate Supreme Court for Petitioner.

Ms. Yasmin Saigol Deputy Prosecutor-General for the State.

Date of hearing: 24th July, 2008.

SCMR 2008 SUPREME COURT 1610 #

2008 SCMR 1610

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Mian Hamid Farooq and Sheikh Hakim Ali, JJ

DEPUTY COLLECTOR CUSTOMS----Petitioner

Versus

Messrs TRADECOM PAKISTAN (PVT.) LTD. through Executive Deputy Director and another----Respondents

Civil Petition No.696 of 2008, decided on 19th June, 2008.

(On appeal from the judgment, dated 20-5-2008 passed by the Lahore High Court, Lahore in Customs Reference No.6 of 2007).

Customs Act (IV of 1969)---

----Ss. 19 & 25---S.R.O.447-(I)/04, dated 12-6-2004---Constitution of Pakistan (1973), Art.185(3)---Determination of value of imported car--Exemption---Foreign Embassy imported a car after exemption by the Central Board of Revenue from payment of customs duties and taxes, however, the notional value of 27,000 US $ was shown in the bill of entry of the car---Car having been sold within three years of its import, in terms of Notification No. S.R.O. 447-(1)/04 dated 12-6-2004, same was liable to 100% of duties and taxes leviable at the prevailing rate and duties and taxes of value determined in foreign currency at the time of importation---Customs Authority determined the value of the car at the rate of 74,244 Euro, prevailing at the time of importation---Respondent challenged the same on the ground that the Customs Department having itself accepted the bill of entry showing the value of the car as 27,000 US $, there could be no question of re-determination of its value---Leave to appeal was granted to consider said dispute and other submissions of the counsel---Since short question of law were involved, appeal would be set down for hearing on the present record within specified period.

Sh. Izhar-ul-Haq, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Mian Abdul Ghaffar, Advocate Supreme Court for Respondent.

SCMR 2008 SUPREME COURT 1611 #

2008 S C M R 1611

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Sheikh Hakim Ali, JJ

WAQAR JALAL ANSARI----Petitioner

Versus

NATIONAL BANK OF PAKISTAN and another----Respondents

Civil Petition No.549-L of 2008, decided on 16th July, 2008.

(On appeal from the order, dated 13-3-2008 of the Lahore High Court, Lahore passed in R.F.A. No.214 of 2007 in C.M. No.3 of 2007).

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

----Ss. 10 & 22---Constitution of Pakistan (1973), Art.185(3)---Application for leave to defend suit---Scope---When no such application was filed by the "principal debtor", a guarantor was not automatically entitled for leave to defend the suit---Banking Court shall grant the defendant leave to defend the suit if it is of the view that defendant had raised substantial questions of law or fact in respect of which the evidence needed to be recorded---In the present case, in the estimation of the Banking Court, guarantor in his application for leave to defend the suit, could not raise substantial question of law and fact requiring evidence to be recorded and thus it dismissed his application, against which no exception could be taken, more so when his appeal against the judgment and decree of the Banking Court was dismissed being barred by time----Petition for leave to appeal was dismissed in. circumstances.

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

----Ss. 22 & 10---Limitation Act (IX of 1908), S.5---Constitution of Pakistan (1973), Art.185(3)---Appeal---Limitation---Time-barred appeal---Application for condonation of delay---Ground for condonation as urged by the petitioner was that judgment was not announced on the date incorporated in the judgment itself, but it was subsequently rendered, therefore, he could not file the appeal within time and thus it was sufficient cause to condone the delay---Petitioner had not placed on record any material to substantiate his plea---Presumption of correctness in favour of judicial proceedings and credibility was attached to the proceedings before judicial forum---Impugned judgment did not suffer from any legal infirmity and High Court, after adverting to every aspect of the case and considering all the relevant dates, had rightly found that appeal was time barred and dismissed the application for condonation of delay---Petition for leave to appeal was dismissed.

Fayyaz Hussain v. Akbar Hussain and others 2004 SCMR 964 and Abdullah v. Shaukat 2001 SCMR 60 ref.

Khan Muhammad Vehniwal, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 16th July, 2008.

SCMR 2008 SUPREME COURT 1615 #

2008 S C M R 1615

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

MUHAMMAD HASHIM BABAR----Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.17-L of 2008, Criminal Appeal No.103 of 2008 and Criminal P.L.A. No.216-L of 2005, decided on 7th May, 2008.

(On appeal from the judgment, dated 3-2-2005 in Criminal Appeal No.1629 of 2000 passed by the Lahore High Court, Lahore).

National Reconciliation Ordinance (LX of 2007)---

----Ss.7 & 33-F---National Accountability Ordinance (XVIII of 1999), S.10---Constitution of Pakistan (1973), Art.185(3)---Contention was that the case of accused was covered under S.7 of the National Reconciliation Ordinance, 2007, as he being holder of public office, proceedings were initiated against him prior to 12th October, 1999, the cut off date, as such the proceedings were bound to be terminated---Said contention was not refuted by the Prosecutor-General NAB---Petition for leave to appeal was consequently converted into appeal and allowed and the accused was acquitted of the charges in view of S.7 read with S.33-F of the National Reconciliation Ordinance, 2007--Movable and immovable properties of the accused mentioned in the order stood released.

Syed Iftikhar Hussain Gilani, Senior Advocate Supreme Court for Petitioner.

Malik M. Qayyum, Attorney-General for Pakistan, Dr. Danishwar Malik, P.G., NAB and Dr. M. Asghar Rana, D.P.G. Punjab for Respondent No.1.

Nemo for Respondent No.2.

SCMR 2008 SUPREME COURT 1616 #

2008 SCMR 1616

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan and Syed Sakhi Hussain Bokhari, JJ

MUHAMMAD KHAN----Petitioner

Versus

THE STATE----Respondent

Criminal Petition No.167-L of 2008, decided on 17th July, 2008.

(Against the judgment, dated 6-5-2008 of the Lahore High Court, Lahore passed in Criminal Appeal No.1819 of 2006).

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

----S. 9(c)---Constitution of Pakistan (1973), Art.185(3)---Appraisal of evidence---Sentence, reduction in---Recovery witnesses were independent and disinterested witnesses and they had unanimously supported the prosecution version regarding the raid conducted at the hotel of the accused and recovery of "Charas" from his possession at the relevant time---Said witnesses were as good and respectable witnesses as other public witnesses and their statements could not be discarded merely because they were police employees---Objection regarding non-compliance of provisions of S.103, Cr.P.C. was misconceived, as by virtue of S.25 of the Control of Narcotic Substances Act, 1997, non-citing of a public witness was not fatal to the prosecution case, because S.103, Cr.P.C. had been specifically excluded from its application in cases of narcotics---Contention that accused was liable to the extent of only ten grams "Charas" sent to the Chemical Examiner for analysis did not carry weight---Law did not require that entire contraband should be sent for analysis---During the trial, accused did not move the Trial Court for getting the remaining quantity of narcotic examined by Chemical Examiner, nor the recovery witnesses were even suggested that the remaining bulk was not the "Charas"---Chemical Examiner's report had corroborated the prosecution evidence that the material recovered from the accused was "Charas"---Mere assertion of accused that he had been falsely roped in the case, without a positive attempt on his part to substantiate the same, was of no consequence and was an afterthought---Conviction of accused, thus, was maintained---Accused had undergone a major portion of his substantive sentence and having regard to the facts and circumstances of the case his sentence of seven years' R.I. was reduced to four years' R.I. to meet the ends of justice.

Muhammad Azam v. The State PLD 1996 SC 67; Naseer Ahmad v. The State 2004 SCMR 1361; Aala Muhammad and another v. The State 2008 SCMR 649 and Zulfiqar Ahmad v. The State 2006 SCMR 800 ref.

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

----S. 9(c)---Evidence---Police witnesses-Credibility-Police witnesses are as good and respectable as other public witnesses and their statements cannot be discarded merely for the reason that they were the police employees.

Muhammad Azam v. The State PLD 1996 SC 67; Naseer Ahmad v. The State 2004 SCMR 1361 and Aala Muhammad and another v. The State, 2008 SCMR 649 ref.

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S.103---Noncompliance of S.103, Cr.P.C.---Effect--'Non-citing of a public witness is not fatal to prosecution case as S.25 of the Control of Narcotic Substances Act, 1997, has specifically excluded S.103, Cr.P.C. from its application, in cases of narcotics.

Zulfiqar Ahmad v. The State 2006 SCMR 800 ref.

Ch. Irshad Ullah Chattha, Advocate Supreme Court and Ch. Muhammad Anwar, Advocate-on-Record for Petitioner.

Ms. Yasmin Saigol, Deputy Prosecutor-General for the State.

Date of hearing: 17th July, 2008.

SCMR 2008 SUPREME COURT 1621 #

2008 SCMR 1621

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J. Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

UMAR HAYAT----Petitioner

Versus

THE STATE and others----Respondents

Criminal Petition No.118 of 2008, decided on 13th June, 2008.

(Against the judgment, dated 30-4-2008 of the Lahore High Court, Multan Bench, Multan passed in Criminal Miscellaneous No.24/CB of 2008).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324---Constitution of Pakistan (1973), Art.185(3)---Bail, grant of---Accused had allegedly fired 4/5 shots from his pistol on complainant, out of them one fire hit on his left knee---Said injury fell within the ambit of S.337-F(v), P.P.C.---Accused had rightly been granted bail by Trial Court and High Court while cancelling the same had failed to observe whether bail granting order was arbitrary, capricious or fanciful---Petition for leave to appeal was converted into appeal and allowed and accused was granted bail in circumstances.

Sardar Muhammad Sarfraz Dogar, Advocate Supreme Court for Petitioner.

Ch. Munir Sadiq, D.P.G. for the State.

Nemo for Respondent No.2.

SCMR 2008 SUPREME COURT 1623 #

2008 SCMR 1623

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad, Muhammad Akhtar Shabbir, and Syed Sakhi Hussain Bokhari JJ

SAMIULLAH and another----Appellants

Versus

JAMIL AHMED and another----Respondents

Criminal Appeals Nos.92 of 2007 and 73 of 2008, decided on 25th June, 2008.

(On appeal from the judgment of the High Court of Balochistan, Quetta, dated 23-1-2007 passed in Criminal Appeal No.331, Criminal Revision No.102 and Criminal Acquittal Appeal No.326 of 2005).

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

----Ss. 302(c) & 337-L---Appraisal of evidence---Ocular evidence had proved the cause of assault by the accused upon 'the deceased and the injured prosecution witness---Presence of eye-witnesses at the scene of occurrence and their credibility had been established, who were natural witnesses of the incident and as good as any other independent witness---No ill-will or animosity qua the prosecution witnesses or the police had been brought on record by the defence---Mere relationship of the prosecution witnesses with the deceased was no ground to discredit their. evidence if it was proved to be straightforward, fair and confidence inspiring---Statement of the injured eye-witnesses was very important, which alone was sufficient to establish the prosecution version---Ocular testimony was corroborated by the recovery of crime weapon from the accused and medical evidence---Accused had admitted his presence as well as the presence of eye-witnesses on the spot and thus, supported the factual aspects of the prosecution story---Admittedly accused was under 18 years of age while committing the offence and was entitled to a lesser penalty, as according to the Injunctions of Islam the punishment of "Qisas" was not applicable to his case---Conviction and sentences of accused were upheld in circumstances..

Iftikhar-ul-Hassan v. Israr Bashir PLD 2007 SC 111; Abdus Salam v. The State 2000 SCMR 338; Umerzad v. The State 1990 SCMR 571; Bashir Khan v. The State 1995 SCMR 900; Nazir Ahmad v. Muhammad Siddique 1995 SCMR 1740 and Ghulam Murtaza v. The State 2004 SCMR 4 ref.

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

----S. 302---Appraisal of evidence---Related witnesses---Credibility--Mere relationship of prosecution witnesses with the deceased is no ground to discredit their evidence, if the same is proved to be straightforward, fair and confidence-inspiring.

Umerzad v. The State 1990SCMR 571; Bashir Khan v. The State 1995 SCMR 900; Nazir Ahmad v. Muhammad Siddique 1995 SCMR 1740 ref.

----S. 308---Punishment in Qatl-i-Amd not liable to Qisas---Extent and scope---Section 308, P.P.C. is attracted only in the case liable to "Qisas" in which by virtue of provisions of Ss.306 & 307, P.P.C., the punishment of "Qisas" cannot be imposed or enforced and not in the cases in which punishment is awarded as "Ta'zir".

Iftikhar-ul-Hassan v. Israr Bashir PLD 2007 SC 111 and Ghulam Murtaza v. The State 2004 SCMR 4 ref.

Tariq Mehmood, Advocate Supreme Court for Appellants (in Criminal Appeal No.92 of 2007).

Dr. Babar Awan, Senior Advocate Supreme Court for Respondent No.1 (in Criminal Appeal No.92 of 2007).

Mehmood Raza, Additional Advocate-General, Balochistan for RespondentNo.2 (in Criminal Appeal No.92 of 2007).

Dr. Babar Awan, Senior Advocate Supreme Court for Appellant (in Criminal Appeal No.7 of 2008).

Mehmood Raza, Additional Advocate-General, Balochistan for the State (in Criminal Appeal No.73 of 2008).

Date of hearing: 27th May, 2008.

SCMR 2008 SUPREME COURT 1631 #

2008 SCMR 1631

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari, Syed Zawwar Hussain Jaffery and Muhammad Farrukh Mahmud, JJ

TARIQ MAHMOOD----Petitioner

Versus

THE STATE and others----Respondents

Civil Petition No.682 of 2008, decided on 24th June, 2008.

(On appeal from the order, dated 26-5-2008 of Islamabad High Court, Islamabad, passed in Writ petition No.2784 of 2006).

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

----Ss. 302/324/148 & 149/341/506---Anti-Terrorism Act (XXVII of 1997), Ss.6/7---Constitution of Pakistan (1973), Art.185(3)---Transfer of case to the Court of ordinary jurisdiction was assailed by the complainant---Case of accused who had clean past rested on a lower pedestal than that of terrorists and sectarian criminals who killed innocent persons either to weaken the State or to cause damage to the parties of the rival sect---Terrorists or the sectarian killers did not have any personal grudge or motive against the innocent victims---In the present case admittedly a feud existed between the parties over a piece of land prior to the occurrence---No independent evidence was available on record to show that the act of accused led to striking of terror among the masses---Site plan had denied the claim of the complainant that the occurrence had taken place in a "Bazaar" which was heavily populated---Criminal cases should be tried and decided by the Courts having plenary jurisdiction until and unless extraordinary circumstances existed justifying the trial of the case by special Courts---Impugned order did not call for any interference---Leave to appeal was declined to complainant accordingly.

Ziauallah v. Special Judge, Anti-Terrorist Court, Faisalabad and 7 others 2002 SCMR 1225; Mst. Raheela Nasreen v. The State and another 2002 SCMR 908; State through Advocate-General N.-W.F.P. Peshawar v. Muhammad Shafique PLD 2003 SC 224; Azizullah and another v. The State and another 2005 SCMR 802 and Mirza Shaukat Baig and others v. Shahid Jamil and others PLD 2005 SC 530 distinguished.

Mohabat Ali and another v. The State and another 2007 SCMR 142 ref.

(b) Criminal trial---

---Forum---Determination---Principles---Criminal cases should be tried and decided by the Courts having plenary jurisdiction, until and unless extraordinary circumstances existed justifying the trial by Special Courts.

Raja Muhammad Ibrahim Satti, Senior Advocate Supreme Court for Petitioner.

Mian Asif Mumtaz, D.P.G. for Respondents Nos.1 and 2.

Sardar M. Ishaq Khan, Senior Advocate Supreme Court for Respondents Nos.3 to 9.

SCMR 2008 SUPREME COURT 1636 #

2008 S C M R 1636

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Muhammad Akhtar Shabbir and Zia Perwez, JJ

SULTAN MUHAMMAD alias BACHA KHAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.259 of 2001, decided on 9th April, 2008.

(On appeal from the order, dated 14-12-1999 of the High Court of Balochistan, Quetta passed in Criminal Jail Appeal No.170 of 1999).

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

---Ss. 364-A & 511---Appraisal of evidence---Dictionary meaning of the word "attempt" was not relevant in the case, as S.511, P.P.C. had itself explained the same---"Attempt" covered only those cases where, for some reasons, the object of the offence was not accomplished---Offence in the present case was completed when the accused had kidnapped the child by putting him in the "Rickshaw" after having wrapped him in a cloth---Accused was caught red-handed on the spot after hue and cry raised by the Rickshaw driver---Charge under S.364-A, P.P.C. was proved on record on sound prosecution evidence, which did not constitute an attempt only---Conviction and sentence of accused were upheld accordingly and his appeal was dismissed.

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

----S. 511-"Attempt"-Connotation-"Attempt" covers only those cases where, for some reasons, the object of the offence is not accomplished.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Muhammad Raza, Additional Advocate-General, Balochistan for the State.

Date of hearing: 9th April, 2008.

SCMR 2008 SUPREME COURT 1639 #

2008 S C M R 1639

[Supreme Court of Pakistan]

Present: Saiyed Saeed Ashhad, Muhammad Akhtar Shabbir and Syed Sakhi Hussain Bokhari, JJ

NAZIR AHMAD and another----Appellants

Versus

M. MUZAFFAR HUSSAIN----Respondent

Civil Appeal No.563 of 2004, decided on 19th May, 2008.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 14-5-2004 passed in Civil Revision No.958 of 2002).

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

----S. 115---Specific Relief Act (I of 1877), S.12---Revision---Concurrent findings of fact by the lower courts---Scope of interference by High Court in revision---High Court, in exercise of its revisional jurisdiction would be justified in interfering with the concurrent findings of fact, where on examination of the record if found that courts below had arrived at erroneous conclusion based on error of jurisdiction, misreading or non-reading of documentary or oral evidence and misconstruction of law, and it could set at naught the concurrent findings by the courts below---In the present case, in a suit for specific performance of agreement to sell, the defendants had failed to establish the assertion of inadequacy of price of the suit-land and High Court had rightly granted `specific performance' ignoring the plea of inadequacy of price by the defendants---Such aspects o the case had not been adverted to by the Trial Court as well as by the first Appellate Court---High Court, in circumstances, had rightly interfered with the findings of the courts below by setting aside the same---No infirmity or error of law having been pointed out in the impugned judgment of the High Court, Supreme Court declined to interfere.

Jan Muhammad Khan v. Shah Mir Hussain 1985 SCMR 2029; Jam Pari v. Muhammad Abdullah 1992 SCMR 786 and Muhammad Sain v. Muhammad Din 1996 SCMR 1918 ref.

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

----Arts. 17(2)(a) & 30---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement to sell---Execution of document(agreement to sell)---Proof---Modes---Attesting witness---Concept---Scribe as a witness---Evidentiary value---Held, in case of denial of execution of a document by the party, the other party relying on such document must prove its execution in accordance with the modes of proof as laid down in Qanun-e-Shahadat, 1984 and such party was required to observe rule of production of best evidence---In the present case, to prove the execution of the agreement to sell, the plaintiff produced the scribe' of the document, who while appearing in court admitted the execution of the agreement and categorically stated that it carried the thumb impressions and signed by the executant and the marginal witnesses; his statement was supported by the attesting witness of the document who also verified his signatures on the same---Held, attesting witness was the one who had not only seen the document being executed by the executant but also signed same as a witness---Person who wrote or wasscribe' of a document was as good a witness as any body else, if he had signed the document as a witness---No legal inherent incompetency existed in the writer of a document to be an attesting witness to it---Where in addition to one of the marginal witnesses, `scribe' of the document appeared in the Trial Court and deposed that the agreement was scribed by him and thumb impressions and signatures were put by the defendants, such statement of the scribe could be considered to be a statement of marginal witness in circumstances.

Shamu Patter v. Abdul Kadir Rowthan and others 1912 IC 250 (PC); Burdett v. Spilsbury (1842) 10 CI & F 340; Ram Samujh Singh v. Mainath Quer AIR 1925 Oudh 737; Raja Ram v. Jagannath and others AIR 1926 Oudh 209; Yakubkhan Daimkhan Serguro and others v. Guljarkhan Abdulkhan and others AIR 1928 Bom. 267; Thakurdas and another v. Topandas and others AIR 1929 Sindh 217; Ghanshamsingh Tirathsing and another v. Mohmed Yacoob AIR 1933 Sindh 257; Muhammad Zaman Khan v. Sher Afzal Khan and 8 others PLD 1984 SC (AJ&K) 138 and Mst. Noor Bibi and 9 others v. Ghulam Rasool 1991 SCMR 1281 ref.

----Art. 30---Admitted facts need not be proved.

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

----S. 12---Suit for specific performance of agreement to sell---Mere inadequacy of price of the property in question was no ground for refusing specific performance of agreement---Where the price was so inadequate as to shock court's conscience, either by itself or in conjunction with any other circumstance such as illiteracy, oppression etc., it evidenced fraud or that undue advantage was taken by the other side, the court would refuse its specific performance---In the present case, however, no such evidence was available and the defendants had failed to establish the assertion of inadequacy of the price---High Court therefore, had rightly granted "specific performance" ignoring the plea of inadequacy of price by the defendants---Supreme Court declined interference.

Manak Chand v. Puran and another AIR 1960 Madhya Pradesh 235 ref.

Zafar Iqbal Chaudhry, Advocate Supreme Court for Appellants.

Respondent in person.

Date of hearing; 19th May, 2008.

SCMR 2008 SUPREME COURT 1644 #

2008 S C M R 1644

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C.J., Ijaz-ul-Hassan Khan and Ch. Ejaz Yousaf, JJ

AHMAD KHAN alias MALANGI and 3 others----Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.94 of 2005, decided on 1st April, 2008.

(On appeal from the judgment, dated 23-4-2002 in Criminal Appeal No.138-T of 2002, Murder Reference No.30-T 2002 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi).

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

----S. 396/34---Anti-Terrorism Act (XXVII of 1997), S.7(c)---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted to accused for reappraisal of evidence on the grounds that the accused were not charged in the F.I.R. and their identification parade was held after about a month of their arrest and that the recovered weapons and crime-empties were examined in the Forensic Science Laboratory after sufficient delay.

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

----S. 396/34---Anti-Terrorism Act (XXVII of 1997), S.7(c)---Appraisal of evidence---Firing was attributed to all the four accused in the promptly lodged written report, who had been correctly picked up' by the eye-witnesses in the identification parade held soon after their arrest---Although identification parade was conducted after a month of the occurrence, yet the incident having taken place in broad-daylight and all the witnesses having had sufficient time and opportunity to see the accused persons, the case was not of mistaken identity---Eye-witnesses had given consistent and coherent statements without any discrepancy, which were corroborated by medical evidence and incriminating recoveries---Presence of eye-witnesses at the scene of occurrence was also strengthened by the fact that two of them had been seriously injured in the incident---Convictions and sentences of accused were upheld in circumstances, except regarding two accused whose death sentence under S.396/34, P.P.C. was altered to imprisonment for life for the reason that crime-empties recovered from the spot did not match with the fire-arms recovered from them---Appeal was disposed of accordingly.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellants.

Sardar Muhammad Siddique Khan, D.P.-G. Punjab for the State.

Date of hearing: 1st April, 2008.

SCMR 2008 SUPREME COURT 1650 #

2008 S C M R 1650

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi, Faqir Muhammad Khokhar and Mian Hamid Farooq, JJ

Syed NASIR HUSSAIN SHAH----Petitioner

Versus

ZILA NAIB NAZIM, SUKKUR and 21 others----Respondents

Civil Petition No.409 of 2008, decided on 26th May, 2008.

(On appeal from the judgment, dated 7-4-2008 passed by High Court of Sindh at Sukkur, in C.P. No.D-151 of 2008).

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

----Ss. 24 & 42---Constitution of Pakistan (1973), Art.185(3)---Recall of a Zila Nazim---Procedure---Provision of S.24, Sindh Local Government Ordinance, 2001 is mandatory and requires that recall motion must be considered and put for voting in terms of S.24(3) & (4) of the Ordinance---If the motion would be adjourned without putting for voting, same would be deemed to be pending for consideration---Bye-laws of Zila Council framed under S.42 of the Ordinance for the purpose of regulating the business of House cannot override the statutory provisions and S.24 of the Ordinance containing procedural as well as substantive provisions on the subject would prevail, therefore, there would be no legal effect of the bye-laws by virtue of which quorum for a special or urgent meeting is not necessary---No adverse action having been taken against Zila Nazim in the recall motion and same having been adjourned was still pending for consideration---Principles.

Section 24 of the Sindh Local Government Ordinance, 2001 would show that this is mandatory requirement of law that recall motion must be considered and put for voting in terms of subsections (3) and (4) of section 24 of the Ordinance and if the motion is adjourned without putting same on voting, it would be deemed to be pending for consideration. The bye-law of Zila Council framed under section 42 of the Ordinance for the purpose of regulating the business of House cannot override the statutory provisions and section 24 of the Ordinance containing procedural as well as substantive provisions on the subject would prevail, therefore, there would be no legal effect of the bye-laws by virtue of which quorum for a special or urgent meeting is not necessary. In the present case the motion was moved in accordance with law and proceedings of the House were not adjourned in breach of any provision of law invalidating the recall motion, therefore, putting off the motion to another date for consideration, neither caused any prejudice to the petitioner nor it offended any law and consequently, the petitioner without pointing out any illegality in the proceedings, could not maintain a constitution petition before the High Court. Even in terms of bye-laws, the meeting in question would neither acquire the status of special meeting nor it would be considered an emergent meeting, rather in the normal circumstances to all intents and purposes, it would be treated a general meeting. Be that as it may, even in special and emergent meeting, unless the requirement of section 24(3) and (4) of the Ordinance, in respect of recall motion would be fulfilled in letter and spirit, the motion would be deemed to have been not put before the House for the voting.

The recall motion can be placed before the House in any meeting in the manner provided in law for voting by way of secret ballot and failure of motion would essentially result in the consequence provided in subsections (6) and (8) of section 24 of the Ordinance. Zila Nazim, has a right to address the House and proceedings on recall motion in his absence may have legal complications and further in the absence of vast majority of members, it would not be legal and proper to proceed with recall motion, therefore, in the circumstances noted above, there was no option except to adjourn recall motion without voting. Out of 65 members of the House only 7 members were present in the meeting, therefore, whether it was general meeting or not, the motion was to be necessarily adjourned to meet the requirement of law. The legislature with a view to protect Zila Nazim from frequent recall motions for political or any other reason, provided safeguard in section 24(6) and (8) of the Ordinance but the provisions of section 24(1) to (4) being not a mere formality of law cannot be defeated on technical grounds. The petitioner unsuccessfully challenged the action in the constitution petition on the ground of procedural technicalities and in the circumstances the interference of High Court or Supreme Court in the matter, in discretionary jurisdiction, would amount to defeat and frustrate the policy of law and public interest on the basis of technicalities of law.

The concept of discretionary jurisdiction is to advance the cause of justice and court is not supposed to exercise this jurisdiction against the policy of law or in aid of injustice. The court should also restrain from interfering in the internal business of representative bodies in its discretionary jurisdiction.

Law certainly provides protection to Zila Nazim against successive recall motions but at the same time law has taken care of the proper functioning of Zila Council and if Zila Nazim is not discharging his duty in the public interest, he may face recall motion. In the present case no adverse action has been taken against Zila Nazim in recall motion and same having been adjourned was still pending for consideration.

(b) Discretion---

----Discretionary jurisdiction---Concept---Concept of discretionary jurisdiction is to advance the cause of justice and court is not supposed to exercise such jurisdiction against the policy of law or in aid of injustice---Court 'shall also restrain from interfering in the internal business of representative bodies in its discretionary jurisdiction.

Abdul Mujeeb Pirzada, Senior Advocate Supreme Court for Petitioner.

Raja Shafqat Abbasi, Advocate Supreme Court, Ms. Mehreen Anwar Rafi, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondents Nos. 1 and 5-22.

S.K. Anwar, Asstt. Chief (Legal), Local Government Department, Sindh for Respondent No.4.

Yousaf Laghari, A.-G. Sindh.

Nemo for the Remaining Respondents.

Date of hearing: 26th May, 2008.

SCMR 2008 SUPREME COURT 1658 #

2008 S C M R 1658

[Supreme Court of Pakistan]

Present: Zia Perwez, Syed Zawwar Hussain Jaffery and Sheikh Hakim Ali, JJ

MUHAMMAD NAWAZ and others----Appellants

Versus

FATEH SHER and others----Respondents

Civil Appeal No.965 of 2005, Civil Petitions Nos.1564-L and 1565-L of 2005, decided on 21st May, 2008.

(On appeal from the judgment, dated 15-4-2005, passed by the Lahore High Court, Lahore in Civil Revision No.2547 of 2004 and F.A.O. No.264 of 2002).

(a) Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948)---

----S. 2---Decree passed on 29-11-1951 had held that widow of the deceased owner was entitled to inherit 1/4th out of 1/3rd in her possession upon the termination of her limited interest after the enforcement of Punjab Muslim Personal Law (Shariat) Application Act, 1948---No appeal having been filed against said decree, the inaction, and the silence, which had remained in operation after passing of the decree on 29-11-1951 through which the legal battle was won by the legal heirs, it had finally sealed the fate of others to claim inheritance from the land of deceased owner---Land in possession of the widow of the deceased (issueless) land owner, to extent of 1/3rd only out of total land left by the deceased, was to be distributed amongst the legal heirs of deceased owner upon the termination of her limited interest due to enforcement of Punjab Muslim Personal Law (Shariat) Application Act, 1948, while 2/3rd from total land left by the deceased had already become the owned land of legal heirs as absolute owners in the year 1937 as the decree of 1937 had become a past and closed transaction in view of S.2, Punjab Muslim Personal Law (Shariat) Application Act, 1948.

(b) Islamic law---

----Succession---Custom--Effect---Rule of spes succession---Applicability---Upon death of an owner, devolution of lands, properties or assets automatically takes place, as the succession opens at that time and at that stage---No affirmance, authorization or declaration is necessary for such devolution---In the present case, custom being prevalent at the relevant time (1937), sisters of the deceased owner (issueless) could not claim inheritance and widow, instead of inheriting as absolute owner was deprived from that interest of complete ownership and had accepted the transfer of land in her favour as limited interest owner till remarriage or her death---Acceptance of such settlement by the widow and inaction of both sisters of the deceased owner was itself the strongest proof of custom prevalent in the family and so the decree passed in pursuance of said custom could not be challenged after many decades which followed after said settlement, arrangement and compromise, with consequence of passing decree in 1937---Rule of spes succession, in circumstances, could not be applied to the case as succession had opened upon the death of the owner and the parties had entered into a settlement/compromise in 1937---Case was not that of expectancy of inheritance, but it was entered when owner's death had opened the succession.

----S. 115--Revision---Scope--When judgments and decrees have been passed with material irregularities or illegality, the jurisdiction of High Court cannot be restrained or curtailed, so as to correct those judgments and decrees and to pass any judgment as the High Court thinks fit in the facts and circumstances of a given case, in accordance with provision of S.115, C.P.C.

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

----S. 170---Decree of Civil Court is binding upon Revenue Officers and same cannot be upset or reversed by the Revenue authorities---Revenue authorities have got no such power to sit upon the judgment and decree of Civil Court as an appellate authority rather those are bound to implement the decrees in their revenue record---Member, Board of Revenue had exceeded in his power and authority, while rejecting the implementation of the decree of Civil Court and making the same ineffective by his order.

Kh. Saeed-uz-Zaffar, Advocate Supreme Court for Appellants.

Kh. M. Farooq, Advocate Supreme Court for Respondents Nos.1 to 5 (L.Rs. of 6 i.e. (i-ii) (in Civil Appeal No.965 of 2005).

M. Farooq Qureshi Chishti, Advocate Supreme Court for Respondents Nos.7 to 14 (in Civil Appeal No.965 of 2005) and for the Petitioners (in both petitions).

Nemo for Respondents (in both petitions).

Date of hearing; 21st May, 2008.

SCMR 2008 SUPREME COURT 1666 #

2008 S C M R 1666

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi, Ijaz-ul-Hassan Khan and Mian Hamid Farooq, JJ

CENTRAL BOARD OF REVENUE through Chairman/ Secretary, Revenue Division, Islamabad----Appellant

Versus

SHAFIQ MUHAMMAD and another----Respondents

Civil Appeal No.717 of 2007, decided on 14th April, 2008.

(On appeal from the judgment/order, dated 6-12-2006 passed by Federal Service Tribunal in Appeal No.1081(R)(C.S.) of 2004).

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

----R. 5(1)(iii)---Service Tribunals Act (LXX of 1973), Ss.4(1)(a) & 5---Constitution of Pakistan (1973), Art.212(3)---Leave to appeal was granted by Supreme Court to examine as to whether the Service Tribunal had condoned the delay of 4 years for justifiable reason and also to examine whether the Tribunal was justified to take the view that the absence of the civil servant from the office of petitioner for 5 years can be condoned when the department on having taken into consideration the facts found that he was absent from service for about 12 years out of which 7 years' absence was properly explained but there was no ground to justify the absence for another 5 years which finding of the department dated 10-9-1999 was upheld by the Appellate Authority when his departmental appeal was dismissed on 15-03-2000.

Per Muhammad Nawaz Abbasi J, Ijaz-ul-Hassan Khan, J agreeing; Mian Hamid Farooq, contra, [Majority view]---

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

----Ss. 5 & 4---Constitution of Pakistan (1973), Art.212(3)---Power of Service Tribunal under S.5, Service Tribunals Act, 1973---Scope---Service Tribunal may confirm, set aside, vary or modify the order appealed against, in an appropriate manner---Only limitation on the power of Service Tribunal is to satisfy the test of reasonableness---Service Tribunal, in the present case, having considered the question of law and facts raised in the appeal formed an opinion that the extreme penalty of dismissal from service was not in consonance with the nature and gravity of charge of absence from duty without leave---However while exercising powers under S.5, Service Tribunals Act, 1973 it converted major penalty of dismissal from service into stoppage of two increments for a period of two years---Such exercise of power by the Service Tribunal would not suggest that discretion exercised by the Tribunal was beyond the scope of law---Department had not been able to satisfy that Tribunal had committed any wrong in exercising the jurisdiction on the basis of test of reasonableness or any settled principle of law on the subject, which might be treated a jurisdictional error calling for interference by Supreme Court---Order of Service Tribunal, in circumstances, was in accordance with the concept of substantial justice.

----Ss. 5 & 4---Constitution of Pakistan (1973), Art.212(3)---Absence from duty---Dismissal from service without regular enquiry---Hardship case---Exercise of discretion by Service Tribunal and conversion of dismissal from service by Service Tribunal into stoppage of increments for two years and condonation of delay in filing appeal before it--Interference by Supreme Court under Art.212(3) of the Constitution---Scope and extent.

The scope of interference of the Supreme Court in a case under Article 212(3) of the Constitution is confined to the extent of satisfaction of the court regarding involvement of substantial question of law of public importance, therefore, unless the order passed by the Tribunal is found to have been passed without jurisdiction, or coram non judice, mala fide or illegal, in respect of substantial question of law, Supreme Court may not interfere in the matter in exercise of its powers under Article 212(3) of the Constitution. In the present case, it appears that Tribunal firstly exercised discretion in favour of condonation of delay for the consideration that absence without leave may not be deliberate and intentional rather it was due to the abnormal situation which prevented the civil servant to return Pakistan and secondly, keeping in view the nature of charge and the circumstances under which he could not resume duty, it exercised discretion in favour of lesser penalty in the interest of substantial justice. The law authorizes the Tribunal to make a decision on the question of penalty awarded to a civil servant by the departmental authority and substitute the quantum of punishment in an appropriate manner in a suitable case in its discretion within the statutory command and this is settled law that a judicial power exercised in discretionary jurisdiction, is not supposed to be interfered by a higher judicial forum for collateral consequence in its discretion.

It is clear that Tribunal has to follow the limitations and restrictions of law in exercise of discretion in a manner, which may not offend the spirit of law. The concept of discretion in judicial power is to advance the cause of justice and exercise of this power in a judicious manner in aid of justice and not to perpetuate injustice whereas the executive authorities have different considerations for exercise of such power. The judicial norms do not permit to encourage continuation of exercise of jurisdiction by a State functionary to deprive a person from his legitimate rights. It would be highly unlikely that Supreme Court imbued the discretionary action of a public functionary if the same was done in violation of the recognized principles of exercise of discretionary power. The distinction in the recognition of an action of a person and governmental authorization of public officer can be demonstrated by the test of determination whether deprivation of a right was the result of such an action of individual or the breach of law by a-public authority. Where deprivation of some right or privilege is caused in consequence of an official act and the party charged with the deprivation is a person who acted as public functionary, the judicial powers necessarily have to be exercised in aid of protecting the rights and must not be exercised in aid of injustice. In the light of the facts and circumstances of the present case, the exercise of discretion by the Tribunal in condoning the delay as well as disposal of appeal with reduction of punishment without remand of case to the departmental authority for holding inquiry was quite in accordance with the concept of substantial justice in such a case of hardship.

The civil servant, in the present case, proceeded abroad with the permission of department and was also subsequently allowed ex-Pakistan leave on humanitarian ground, therefore, the element of wilful absence is not present in view of repeated explanation of civil servant regarding his difficulty, and his seeking extension in ex-Pakistan leave. The department at the first instance treating it a hardship case allowed ex-Pakistan leave and subsequently without change of circumstances, taking a harsh view, initiated departmental proceedings against him and ultimately awarded him extreme penalty of dismissal from service. In such circumstances, the remand of the case to the department, would be futile. The regular inquiry in the departmental proceedings is a rule and dispensation is an exception depending on the facts of a case, therefore, the question whether regular inquiry in a case is necessary or not, it is to be kept in mind as to whether an adverse inference drawn without making probe into the facts in the light of explanation of a civil servant, would not amount to condemn a person unheard. The courts must not ignore cardinal principle that the hearing simpliciter does not mean providing of opportunity of written explanation to the: show-cause notice rather in the facts of each case, it must be seen that the enquiry is just, proper and fair, therefore, no general rule can be laid down for dispensation of regular inquiry. The departmental proceeding on the charge of misconduct is a sort of semi-criminal proceeding in which initial burden is on the department to prove the charge and if the allegations are denied by the accused official the charge cannot be proved without producing evidence. In the present case, the stand of civil servant, right from beginning, was that his absence was not wilful rather due to unavoidable circumstances, he was prevented from resuming duty. In view thereof, the procedure of dispensation of inquiry adopted by the department, was contrary to the law and consequently, the finding of the Tribunal in the peculiar facts and circumstances of the present case, that regular inquiry was essential to ascertain as to whether the question of willful absence and dispensation of such an inquiry was not in accordance with the spirit of law in the given facts, was unexceptional. In view thereof, the major penalty of dismissal from service without regular inquiry was not justified. The contention that the Tribunal should have remanded the case instead of disposal of appeal on merits was not raised before the Tribunal and now it is too late to undertake such a futile exercise of remanding the case at this stage.

Appeal before the Tribunal appeared to be time barred but in view of circumstances pleaded therein, no exception could be taken to the condonation of delay by the Tribunal as the objection could conveniently be overruled in view of the fact that when the order of dismissal of appeal was conveyed to the civil servant he immediately filed the appeal, Therefore, in view of his bona fide, the objection of limitation, may have no significance. A civil servant could wait till communication of decision of departmental appeal and would not be non-suited on technical grounds.

The discretion exercised by the Tribunal in condoning the delay and disposal of appeal on merits with conversion of penalty of dismissal from service into stoppage of increment, was not illegal or improper exercise of jurisdiction. The departmental proceedings were initiated against the civil servant in the year 1998 which continued for a period of about 10 years and the impugned judgment having been already given effect, civil servant was performing his duty and in view thereof, it was not proper for the Supreme Court to interfere in the judgment of the Tribunal at this stage on technical grounds. The discretionary jurisdiction exercised by the Tribunal in respect of condonation of delay and conversion of penalty was not arbitrary, illegal or un-reasonable to attract the jurisdiction of Supreme Court under Article 212(3) of the Constitution.

Nawab Khan v. Government of Pakistan PLD 1994 SC 222; Secretary, Government of the Punjab v. Riaz-ul-Haq 1997 SCMR 1552; Basharat Ali v. Director Excise and Taxation 1997 SCMR 1543; Managing Director, S.S.G.C. Ltd. v. Ghulam Abbas PLD 2003 SC 724 and Chief Engineer (North) v. Saifullah Khan Khalid 1995 SCMR 776 ref.

Per Mian Hamid Farooq, J Contra.---[Minority view].

Mst. Hajran v. Sardar Muhammad PLD 1970 SC 287; Water and Power Development Authority v. Aurangzeb 1988 SCMR 1354; Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139 and Nawaz Khan and another v. Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and others PLD 1994 SC 22 ref.

Raja, Muhammad Bashir, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Appellants.

Muhammad Akram Sheikh, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 14th April, 2008.

SCMR 2008 SUPREME COURT 1682 #

2008 SCMR 1682

[Supreme Court of Pakistan]

Present: Mian Hamid Farooq and Sheikh Hakim Ali, JJ

MUHAMMAD IQBAL----Petitioner

Versus

ALI SHER----Respondent

Civil Petition No.3476-L of 2004, decided on 14th July, 2008.

(On appeal from the judgment, dated 6-12-2004 of the Lahore High Court, Lahore passed in Civil Revision No.756 of 2002).

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

----S. 13(2)(3)---Pre-emption suit---Making of Talb-i-Muwathibat---Necessary for plaintiff to give particulars of date, time and place in the plaint of making Talb-i-Muwathibat---When such details were totally lacking in the plaint, Trial Court, after examining the pleadings of the parties, should not have allowed the plaintiff to lead the evidence on the facts not alleged by him in the plaint and even if the evidence was allowed to be recorded by the Trial Court, it should not have been considered as evidence in the case by the Appellate Court and the High Court---Principles---Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another 2000 SCMR 314 dissented from.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302 fol.

Rana Abdul Rasheed v. Iqbal Hussain 2008 CLC 1 ref.

Altaf Hussain v. Abdul Hameed alias Abdul Majeed through Legal Heirs and another 2000 SCMR 314 dissented from.

Dr. Khalid Ranjha, Advocate Supreme Court with Mehmood-ul-Islam, Advocate-on-Record for Petitioner.

Muhammad Azeem Malik, Advocate Supreme Court for Respondent.

SCMR 2008 SUPREME COURT 1685 #

2008 SCMR 1685

[Supreme Court of Pakistan]

Present: Faqir Muhammad Khokhar, Muhammad Moosa K. Leghari and Sheikh Hakim Ali, JJ

NABI AHMED and others----Appellants

Versus

MUHAMMAD ARSHAD and others----Respondents

Civil Appeal No.1485 of 2007, decided on 7th May, 2008.

(On appeal from judgment, dated 27-6-2007 of the Lahore High Court, Lahore, passed in Civil Revision No.218 of 2007).

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

----S. 24---West Pakistan General Clauses Act (VI of 1956), Ss.8 & 9---Pre-emption suit---Direction of Trial Court to pre-emptor to deposit Zare-e-Soem of the sale price within 30 days---Computation of period---Principles---Word `of' used in first proviso to S.24, Punjab Pre-emption Act, 1991 was to be construed in its proper context and meaning in that thirty days' time had to be reckoned after the day of institution of the suit---If the limitation period for depositing the Zare-e-Soem expired on a day when the court was closed on account of public holiday or Sunday, the deposit could validly be made on the next day---Principles---Raja v. Tanvir Riaz and others 2006 CLC 1455 and Syed Mushtaq Hussain v. Jewan and 4 others 2007 MLD 1062 held, not a correct law.

Raja v. Tanvir Riaz and others 2006 CLC 1455; Syed Mushtaq Hussain v. Jewan and 4 others 2007 MLD 1062; Fazal Elahi v. Noor Ahmed and 2 others PLD 2006 Lah. 318; Muhammad Yousaf and 3 others v. Zafarullah and another 1992 SCMR 117; PLD 1993 SC 204; Mian Muhammad Talha Adil v. Mian Muhammad Lutfi 2005 SCMR 720; Ghulam Mustafa Khan v. Ashiq Hussain and others 2003 CLC 1661; Abdul Wahid and others v. Sardar Ali and others 2000 SCMR 650; Ghulam Hussain v. Jamshaid Ali 2001 SCMR 1001; Rashid Ehsan and others v. Bashir Ahmad and another PLD 1989 SC 146; Iftikhar Baig v. Muhammad Azam and others 1996 SCMR 762; Abdul Rashid v. Abdul Salam and others 1991 SCMR 2012; Mian Muhammad Talha Adil v. Mian Muhammad Lutfi 2005 SCMR 720; Words and Phrases, Permanent Edition 1972, Vol. 29, p.341; p.344 and Obaid-ud-Din and others v. Faiz Muhammad Khan and others 1987 SCMR 216 ref.

Ch. Manzoor Hussain Basra, Advocate Supreme Court for Appellants.

Syed Kaleem Ahmed Khurshid, Advocate Supreme Court for Respondent No.1.

Date of hearing: 7th May, 2008.

SCMR 2008 SUPREME COURT 1690 #

2008 S C M R 1690

[Supreme Court of Pakistan]

Present: Muhammad Akhtar Shabbir and Syed Sakhi Hussain Bokhari, JJ

SHAH NAWAZ BHATTI and another----Petitioners

Versus

PROVINCE OF PUNJAB through Secretary, Health Chairman Quality Control Board and others----Respondents

Civil Petition No.621-L of 2008, decided on 3rd July, 2008.

(Against the judgment of the Lahore High Court, dated 9-6-2008 passed in Writ Petition No.6335 of 2008).

Drugs Act (XXXI of 1976)---

----Ss. 31(4) & 11(5)(b)---Constitution of Pakistan (1973), Art.185(3)---Defect of not getting sanction for prosecution of accused by the Quality Control Board was merely procedural in nature and thus would not vitiate proceedings against the accused---Principles and procedure.

Messrs WS. Woodwards (Pakistan) Ltd. v. The State 1985 PCr.LJ 2064 ref.

Hafiz Muhammad Saeed, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

SCMR 2008 SUPREME COURT 1694 #

2008 S C M R 1694

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari, Sheikh Hakim Ali and Muhammad Farrukh Mahmud, JJ

Syed KHURRAM SHAH----Petitioner

Versus

Mian MUHAMMAD SHAHBAZ SHARIF and others----Respondents

Civil Petition No.654 of 2008 and C.M.A. No.1474 of 2008 along with C.M.As. Nos.1495 and 1496 of 2008, decided on 12th June, 2008.

(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 5-6-2008 passed in Civil Miscellaneous Application No.2 of 2008 in Writ Petition No.6470 of 2008).

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

----Art. 185(3)---Supreme Court Rules, 1980, O.V, R.2(2), O.XXXIII, R.6 & O.XIII---Petition for leave to appeal-Full Bench of High Court, was seized of the impugned matter, interference in a pending matter by Supreme Court at an initial/interlocutory stage, except in extraordinary or highly exceptional circumstances has to be avoided so as to adhere to the consistent and long standing practice of Supreme Court as well as the principles of propriety---Supreme Court, in circumstances, refrained from making indulgence of any sort in the pending lis, or for that matter, to make any observations upon the contentions put forth, lest it may convey an impression of, either prejudicing the parties or pre-empting the decision of the High Court.

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

----Art. 185(3)---Petition for leave to appeal---Petitioner seeking direction for expeditious disposal of constitutional petition pending before the High Court---Supreme Court directed the High Court for expeditious disposal of the petition and emphasized that a High Court looking to the facts of a case of which it is seized, should not hesitate in exercising its jurisdiction by passing justifiably reasonable interim orders, if so warranted in the circumstances as per established principles of law; if however, passing of interim orders at the relevant moment without notice was not possible on account of lack of judicious propriety, date for notice to opposite party must not be unreasonably long.

Sahibzada Ahmad Raza Khan Qasuri, Senior Advocate Supreme Court along with Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Malik Muhammad Qayyum, Attorney-General for Pakistan along with Raja Abdul Rehman, D.A.-G. and Syed Sher Afgan, Deputy Secretary, Election Commission for Respondents.

Muhammad Akram Sheikh, Senior Advocate Supreme Court along with Arshad Ali Ch., Advocate-on-Record for Applicant.

Khawaja Haris Ahmed, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Applicant.

Date of hearing: 12th June, 2008.

SCMR 2008 SUPREME COURT 1698 #

2008 S C M R 1698

[Supreme Court of Pakistan]

Present: Muhammad Akhtar Shabbir and Syed Sakhi Hussain Bokhari, JJ

L.D.A. and others----Petitioners

Versus

MUHAMMAD SALEEM and others----Respondents

C.M.A. No.160-L of 2008, Civil Petitions Nos.194-L and 172-L of 2008, decided on 4th July, 2008.

(On appeal from the order, dated 21-1-2008 of the Lahore High Court, Lahore, passed in I.C.As. Nos.319 and 320 of 2007 in Writ Petition No.18171 of 1998).

Law Reforms Ordinance (XII of 1972)---

----S. 3----Civil Procedure Code (V of 1908), Ss.96, 100, 104(1), 105 & O.XLIII, R.I---Constitution of Pakistan (1973), Arts.199 & 185(3)---Intra-court appeal against the judgment passed in constitutional petition under Art.199 of the Constitution was disposed of with the consent of the parties as having not been pressed---Effect---Petitioners had the right to object to the judgment passed in constitutional petition through intra court appeal but while withdrawing the same or not pressed the same before the Division Bench hearing the intra court appeal, petitioners were estopped from challenging the same any further before the Supreme Court---Petition for leave to appeal was dismissed in circumstances.

Smt. Ganga Bai v. Vijay Kumar and others AIR 1974 SC 1126; Abdul Wahab and others v. Habib Ali PLD 1969 Lah. 365; Gurcharan Singh minor son and representative of Harnam Parsad through Mangal Singh v. Gurdev Singh and others AIR 1922 Lah. 309 ref.

Rashid Ahmed, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioners (in Civil Miscellaneous Application No.160-L of 2008 and Civil Petition No.194-L of 2008).

M. Saleem Shahnazi, Advocate Supreme Court, Mian Nisar Ahmed, Advocate Supreme Court and Sh. Salah-ud-Din, Advocate-on-Record for Respondent (in Civil Miscellaneous Application No.160-L of 2008 and Civil Petition No.194-L of 2008).

Aurangzeb Mirza, Advocate Supreme Court and Muhamudul Islam, Advocate-on-Record for Petitioner (in Civil Petition No.172-L of 2008).

M. Saleem Shahnazi, Advocate Supreme Court, Mian Nisar Ahmed, Advocate Supreme Court and Sh. Salah-ud-Din, Advocate-on-Record for Respondent No.1 (in Civil Petition No.172-L of 2008).

SCMR 2008 SUPREME COURT 1702 #

2008 S C M R 1702

[Supreme Court of Pakistan]

Present: M. Javed Buttar and Ch. Ejaz Yousaf, JJ

Mst. SHARIF BIBI and another----Appellants

Versus

Syed MUHAMMAD NAWAZ SHAH and others----Respondents

Civil Appeals Nos.1744 and 1745 of 2005, decided on 15th July, 2008.

(On appeal from the order, dated 12-10-2004 in Civil Revisions Nos.434-D and 435-D of 1996 passed by the Lahore High Court, Lahore).

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

----Art. 114---Estoppel---Civil suits---Procedure extra cursum curiae---All the parties through their counsel had stated before the Trial Court that they would like the matter to be decided by the named referee in accordance with his statement or report and they will not object to the said decision---Trial Court, after recording the statements of counsel for the parties appointed the named person as referee and called upon him to file a report which was duly filed and the suits were decided in accordance with his decision/report---Validity---When a party invites the court to adopt a procedure which is not contemplated by the Civil Procedure Code, 1908, such procedure in fact is extra cursum curiae---When the matter was pending before the Civil Court of competent jurisdiction; the parties were competent to agree to refer the matter to a referee for the decision of the suits and the court was competent to appoint agreed person as referee for decision of the suits---Objection to the jurisdiction of the Trial Court in appointing a referee and referring the matter to him for decision of the suits, had no legal basis---Objectors were estopped to assail the appointment of referee and reference of the matter to referee by the Trial Court because said steps were taken by the Trial Court on the asking of the party/objectors themselves as well as the other parties to the suits.

Muhammad Khan v. Nazir Ahmed 2003 SCMR 1911; Nazir Ahmad and another v. Muhammad Din and another 2000 SCMk 440; Mst. Lalan v. Noor Muhammad and others 1994 SCMR 1771 and S.E. Makudam Muhammad v. T.V. Muhammad Sheikh Abdul Kadir and another AIR 1936 Mad. 856 ref.

(b) Maxim---

----Extra cursum curiae---Applicability---Scope---Estoppel, doctrine of---Applicability---When a party invites the court to adopt a procedure which is not contemplated by the Civil Procedure Code, and is in fact a procedure extra cursum curiae, he cannot, turn round and say that the court is to blame for adopting the very procedure which he invited the court to follow---Doctrine of estoppel would apply to a party who attempts to blow hot and cold---Where with the acquiescence of the parties the Judge departed from the ordinary course of procedure and decided upon a question of fact, it was incompetent for the parties afterwards to contend that they have an alternative mode of proceeding with the trial as if it had been heard in due course.

S.E. Makudam Muhammad v. T.V. Muhammad Sheikh Abdul Kadir and another AIR 1936 Mad. 856 quoted.

Amin-ud-Din Khan, Advocate Supreme Court for Appellants.

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

Date of hearing: 15th July, 2008.

SCMR 2008 SUPREME COURT 1707 #

2008 SCMR 1707

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan and Syed Sakhi Hussain Bokhari, JJ

SHARAFAT ALI ASHRAF----Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, BAHAWALPUR and 3 others----Respondents

Civil Petition for Leave to Appeal No.711-L of 2008, decided on 18th July, 2008.

(On appeal from the order, dated 25-4-2008 of the Lahore High Court, Lahore passed in Writ Petition No.847 of 2008).

Islamic law---

----Parentage---Acknowledgement---Legitimacy---Child born during the continuance of a valid marriage and not earlier than the expiration of six lunar months from the date of such marriage or within a period of two years after the dissolution of the marriage, shall be the conclusive proof that the child so born is the legitimate child of the spouses provided the mother remained unmarried---In the present case, there was no evidence or proof whatsoever to affirm that minor was born after divorce, nor any evidence existed on record that mother of the minor had been living in adultery and the minor was being disowned by the father with sole object and intention of 'avoiding the liability to maintain the minor child---Minor having born out of the wedlock between both the spouses, would inevitably be deemed to be a legitimate child and as such lawfully entitled to be supported by the father.

Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624; Nazir Fatima v. Ghulam Fatima and others 1987 CLC 2073; Bashir Ahmed v. Ilam Din and others PLD 1988 SC 8; Rehmat Khan and 3 others v. Rehmat Khan and another PLD 1991 SC 275; Muhammad Tallat v. Mst. Yasmin Zohra and another 1992 CLC 1180; Manzoor-ul-Haq and 3 others v. Mst. Kaneez Begum 1993 CLC 109; Muhammad Hussain alias Muhammad Yar v. Sardar Khan and 11 others PLD 1993 Lah. 575 and Muhammad Pervez v. Additional District Judge and others 2000 CLC 1605 ref.

Zafar Iqbal Awan, Advocate Supreme Court and Syed Fayyaz Ahmad Sherazi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 18th July, 2008.

SCMR 2008 SUPREME COURT 1711 #

2008 S C M R 1711

[Supreme Court of' Pakistan]

Present: Muhammad Akhtar Shabbir and Muhammad Farrukh Mahmud, JJ

WAHID BAKHSH----Petitioner

Versus

DISTRICT OFFICER (R)/DEPUTY SETTLEMENT COMMISSIONER (LAND) NOTIFIED OFFICER, DERA GHAZI KHAN and others----Respondents

Civil Petition No.988-L of 2007, decided on 24th July, 2008.

(Against the order of the Lahore High Court, Multan Bench, Multan, dated 2-4-2007 passed in Writ Petition No.5261 of 2006).

Displaced Persons (Land Settlement) Act (XLVII of 1958)---

---Ss. 10 & 11---Constitution of Pakistan (1973), Art.185(3)---Mukhbar---Vested right---Laches, principle of---Applicability---Mukhbari application filed by predecessor-in-interest of respondent was found to be correct and it was directed that cancelled land be allotted in his name against verified claim---Notified Officer passed an order and allotted cancelled land in favour of respondent in year, 2004---Order of allotment was assailed by petitioner in year, 2006, in constitutional petition, before High Court, which petition was dismissed being hit by principle of laches --Validity---If order was not challenged within the reasonable time, a vested legal right would accrue to the person in whose favour order was passed---After acceptance of Mukhbari application and direction of Settlement Authorities, allotment of land in favour of Mukhbar a vested right had accrued to him---Respondent being son of Mukhbar could not be deprived of a valuable legal right which he had acquired due to negligence of petitioner---Supreme Court did not find any illegality or infirmity in the judgment passed by High Court which was unexceptionable--Leave to appeal was refused.

Ali Muhammad through L.Rs. and others v. Chief Settlement Commissioner 2001 SCMR 1822 and Ahmed and 25 others v. Ghama and 5 others 2005 SCMR 119 ref.

Rehmatullah and others v. Ulas Khan and others 1968 SCMR 975; Abdul Hamid v. Chief Settlement Commissioner and others 1968 SCMR 120; Rahim Bux v. Settlement Authorities and others 1968 SCMR 78; Ahmad Din v. Mst. Rasul Bibi 1968 SCMR 843 and Masooda Begum through Legal Heirs v. Government of Punjab through Secretary Forest, Lahore and 9 others PLD 2003 SC 90 rel.

Islam Ali Qureshi, Advocate Supreme Court/Advocate-on-Record for Petitioner.

Nemo for Respondents.

SCMR 2008 SUPREME COURT 1715 #

2008 SCMR 1715

[Supreme Court of Pakistan]

Present: Ijaz-ul-Hassan Khan, Zia Perwez and Mian Hamid Farooq, JJ

MUHAMMAD AKRAM----Petitioner

Versus

ZAHID IQBAL and others----Respondents

Criminal Petition No.487-L of 2007, decided on 22nd July, 2008.

(Against the judgment, dated 26-9-2007 of the Lahore High Court, Lahore passed in Criminal Miscellaneous No.4660/B of 2007).

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/148/149---Constitution of Pakistan (1973), Art.185(3)---Bail, cancellation of---Principles---Strong and exceptional grounds were required for cancellation of bail---Supreme Court ordinarily did not interfere with the order of High Court relating to bail, particularly in case of murder when the trial was to commence so as to avoid discussion and remarks on the merits of the case---Court had to see as to whether bail granting order was patently illegal, erroneous, factually incorrect and had resulted in miscarriage of justice---High Court had granted bail to accused for valid and cogent reasons, which were not open to legitimate exception---Charge had been framed in the case and trial was to commence, as such cancellation of bail at this stage was not desirable---Leave to appeal was declined accordingly.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/148/149---Constitution of Pakistan (1973), Art:185(3)---Bail, cancellation of---Principles---Practice and procedure---For cancellation of bail strong and exceptional grounds are required; it has to be seen as to whether order granting bail is patently illegal, erroneous, factually incorrect and has resulted in miscarriage of justice---Supreme Court ordinarily does not interfere with the order of High Court relating to bail, particularly in case of murder, when the trial is to commence so as to avoid discussion and remarks on the merits of the case.

Rana Muhammad Arif, Advocate Supreme Court for Petitioner.

Syed Ehtesham Qadir Shah, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Respondents Nos.1 and 2.

Ms. Yasmin Saigol, Deputy Prosecutor-General, Saif Ullah, Sub-Inspector, Police Station Raiwind, Kasur, Rafiq Khan, S.-I./Investigating Officer, Police Station Thahsheikham, Kasur for the State/Respondent No.3.

Date of hearing: 22nd July, 2008.

SCMR 2008 SUPREME COURT 1717 #

2008 S C M R 1717

[Supreme Court of Pakistan]

Present: Muhammad Akhtar Shabbir and Mian Hamid Farooq, JJ

CHIEF ADMINISTRATOR AUQAF----Petitioner

Versus

Mst. AMNA BIBI----Respondent

Civil Petition No.2538-L of 2001, decided on 4th August, 2008.

(Against the judgment of the Lahore High Court, Bahawalpur Bench, Bahawalpur, dated 10-5-2001 passed in F.A.O. No.18/BWP of 1983).

(a) Punjab Waqf Properties Ordinance (IV of 1979)---

----S. 11---West Pakistan Waqf Properties Ordinance (XXVIII of 1961), S.7---West Pakistan General Clauses Act (VI of 1956), S.2(41)---Constitution of Pakistan (1973), Art.185(3)---Filing of petition against notification of acquisition of property as Wakf property before the District Judge---Limitation---Commencement of period-Principles.

Under section 7 of the West Pakistan Waqf Properties Ordinance, 1961 and section 11 of the Punjab Waqf Properties Ordinance, 1979, thirty days period has been provided to file a petition against the acquisition of the property by the Auqaf Department. The time of thirty days will commence within thirty days of the "publication" of notification. Mere issuance of a "notification" is not sufficient nor mere printing of notification 'in Gazette is sufficient to constitute "publication". "Publication" takes effect only when notification (Gazette containing) is made available to general public. A notification which curtails or extends rights of citizens will take effect from date of its publication in Gazette and not from any prior date.

Word "notification" according to section 2(41) of the West Pakistan General Clauses Act (VI of 1956), shall mean a notification published under proper Authority in the official Gazette.

The clause "within 30 days of such notification under section 7 of West Pakistan Waqf Properties Ordinance, 1961", would mean within 30 days time when notification was brought to the notice of general public by normal mode. Legislature never intended to deprive the citizens of their valuable rights by merely printing a notification and not giving it proper publication. Notification, after printing, must be passed on to sales depot and displayed prominently at suitable public places and it has been further asserted that notification under section 7 must not only be published in Gazette but must also be served on person in possession of property declared as Waqf. Mere insertion in official Gazette of the notification is not enough; it should be published in the manner usually adopted for publication of such documents.

In the present case the respondent had filed the application before District Judge before publication of the notification in the official Gazette though it was issued on 19-11-1976, but it was published in official Gazette on 9-1-1979. The respondent had filed the application challenging its legality after its issuance and before publication of the notification on 3-2-1977 and filing of petition by the respondent before publication of the notification in the official Gazette is not fatal. The respondent has rightly filed the petition before the District Judge within 30 days period prescribed in the law and was not hit by period of limitation.

(b) Notification---

----Notification curtailing or extending rights of citizens will take effect from the date of its publication in Gazette and not from any prior date---"Publication"---Concept.

Abdul Wajid and others v. Aftab Ahmad Khan, Deputy Registrar and others NLR 1992 CLJ 247; Muhammad Suleman and others v. Abdul Ghani PLD 1978 SC 190; Sh. Rahmatullah v. The Deputy Settlement Commissioner PLD 1963 SC 633; Muhammad Ishaq v. Chief Administrator of Auqaf, Punjab PLD 1977 SC 639; The Province of East Pakistan v. Major Nawab Khawaja Hassan Askary PLD 1971 SC 82 and Balkrishna Anant Hirlekar v. Emperor AIR 1931 Bom. 132 ref.

----S. 11---West Pakistan Waqf Properties Ordinance (XXVIII of 1961), S.7---Constitution of Pakistan (1973), Art.185(3)---Acquisition of property as Wakf property---District Judge, after taking into consideration oral as well as documentary evidence of the parties, pro and contra, found the property as not Wakf property---Observations of the District Judge had been further affirmed by the High Court---Held, when factual controversies were involved in the matter and concurrent findings of fact had been recorded by the courts below, Supreme Court was reluctant to interfere with such findings---No illegality or infirmity having been found in the impugned judgment which was unexceptionable, petition for leave to appeal was dismissed.

Shabbir A. Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

SCMR 2008 SUPREME COURT 1723 #

2008 SCMR 1723

[Supreme Court of Pakistan]

Present: Muhammad Moosa K. Leghari, Syed Zawwar Hussain Jaffery and Sheikh Hakim Ali, JJ

Haji Malik AMANULLAH KHAN----Petitioner

Versus

KHYBER KHAN and others----Respondents

C.M.A. No.2242 of 2008 in Civil Review Petition No.93 of 2007 in Civil Appeal No.1622 of 2003, decided on 13th August, 2008.

(On review from the judgment, dated 26-2-2007 passed by Supreme Court of Pakistan in Civil Appeal No.1622 of 2003).

(a) Supreme Court Rules, 1980---

---- O. XXVI, R.6---Constitution of Pakistan (1973), Art.188---Review of Supreme Court judgment---Procedure---Petition for review was not entertainable unless same was drawn by the Advocate who appeared at the hearing of the case in which the judgment or order was sought to be reviewed.

Abdul Majeeb and another v. Chief Settlement Commissioner and others 1980 SCMR 504 and Muhammad Younas and others v. The State PLD 2005 SC 93 ref.

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

----S. 13---Talb-e-Muwathibat---Requirements---Plaintiff has to specify in the plaint, the date, time and place of making said Talb.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302 ref.

Syed Asghar Hussain Subzwari, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Petitioner.

Gul Zarin Kiyani, Senior Advocate Supreme Court for Respondents.

Date of hearing: 13th August, 2008.

Shariat Appellate Bench

SCMR 2008 Shariat Appellate Bench 302 #

2008 S C M R 1

[Supreme Court of Pakistan]

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

Malik SALEH MUHAMMAD GUNJIAL----Appellant

Versus

KAMRAN ELAHI BANDIAL and others----Respondents

Civil Appeal No.723 of 2006, decided on 6th August, 2007.

(On appeal from the judgment, dated 28-4-2006 passed by Election Tribunal Lahore, in Election Petition No.50 of 2002).

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

S.M. Ayub v. Syed Ausaf Shah and others PLD 1967 SC 486 and Iqbal Zafar Jhagra v. Khalilur Rehman 2000 SCMR 250 ref.

Secretary Education v. Mustamir Khan 2005 SCMR 17 and Imtiaz Ahmed Lali v. Ghulam Muhammad Lali PLD 2007 SC 369 rel.

Muhammad Munir Peracha, Advocate Supreme Court for Appellant.

Syed Iftikhar Hussain" Gillani, Senior Advocate Supreme Court for Respondent No.1.

Nemo for Respondents Nos.2 and 3.

Date of hearing: 6th August, 2007.

SCMR 2008 Shariat Appellate Bench 336 #

2008 S C M R 6

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Nasir-ul-Mulk, Ch. Ijaz Ahmed and Syed Jamshed Ali, JJ

AKHTAR ALI and others----Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos.274 and 275 of 2003, decided on 17th September, 2007.

(On appeal against the judgment, dated 11-3-2002 passed by the Lahore High Court, Lahore, in Criminal Appeals Nos.917 and 1043 of 1998, 98/J and Murder Reference No.242-T of 1998).

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

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

Ghulam Muhammad's case PLD 1975 SC 588; Sheral alias Sher Muhammad's case 1999 SCMR 697 and Ata Muhammad's case 1995 SCMR 599 rel.

----Ss. 302/452/394/397/449/109/34---Reappraisal of evidence---Ocular evidence, credibility of---Not divisible.

Faiz Bakhsh's case PLD 1959 P.C. 24; Nadia's case 42 Cr.LJ 53; Muhammad's case PLD 1954 FC 84; Shear Bahadar's case 1972 SCMR 651 and Muhammad Afsar's case PLD 1954 FC 171 rel.

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

----Ss. 302/452/394/397/449/109/34---Reappraisal of evidence---Improvements made by witness in his statement subsequently to strengthen prosecution case, could not be relied upon---Principles.

Hadi Bakhsh's case PLD 1963 Kar. 805 rel.

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

----Ss. 302/452/394/397/449/109/34---Reappraisal of evidence---F.I.R., unexplained delay of 10/11 hours in lodging of---Effect---Such delay would lead to inference that occurrence was un-witnessed.

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

----Ss. 154 & 161---F.I.R.---Scope and evidentiary value---Statement of complainant recorded during investigation after registration of Evidentiary value stated.

Khalid Javed's case 2003 SCMR 1419 rel.

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

Nadeem-ul-Haq's case 1985 SCMR 510 and Chandoo's case 1986 SCMR 720 rel.

Iqbal Bhatti, Advocate Supreme Court for Appellants (in Criminal Appeal No.274 of 2003).

Jehanzeb Tamman, Advocate Supreme Court for Appellants (in Criminal Appeal No.275 of 2003).

Ms. Yasmin Sehgal, D.P.-G. for the State.

Date of hearing: 17th September, 2007.

SCMR 2008 Shariat Appellate Bench 670 #

2008 S C M R 670

[Shariat Appellate Bench]

Present: Justice M. Javed Buttar, Chairman, Justices Ch. Ejaz Yousaf, Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullundhari, Members

GUL NASEEB----Petitioner

2008 S C M R 1193

[Shariat Appellate Jurisdiction]

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

RAUNAK ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.2(S) of 2002, decided on 15th December, 2003.

(On appeal from the judgment of the Federal Shariat Court of Pakistan Camp at Lahore dated 16-10-2001 passed in Cr. A. No.295 of 2000).

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

----Ss. 11 & 10(3)---Constitution of Pakistan (1973), Art.203-F(2B)---Accused in his statement under S.342, Cr.P.C. was shown to be 70 years of age and he was not got medically examined to prove that he was fit to perform sexual intercourse---Fact was also commonly known that often net was thrown wide by the complainant party to rope in the elders of the family for obvious reasons---Leave to appeal was granted to accused to consider the said features of the case.

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

----Ss. 11 & 10(3)---Appraisal of evidence---Accused was not attributed any overt act in the F.I.R. and he was simply shown as a silent spectator---Absconding accused had played the active role in the abduction with whom the abductee had admitted her marriage which was subsequently got 'dissolved by her through Court---Accused who was more than 70 years of age was not got medically examined to determine his potency---Conviction of accused were upheld but his sentence thereunder was reduced to the imprisonment already undergone by him in circumstances.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Sh. Mahmood Ahmed, Advocate Supreme Court for Respondent.

Date of hearing: 15th December, 2003.

SCMR 2008 Shariat Appellate Jurisdiction 1204 #

2008 S C M R 1204

[Shariat Appellate Jurisdiction]

Present: Justice Javed Iqbal, Chairman Justices Tanvir Ahmed Khan, Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullundhari, Members

LIAQAT ALI---Petitioner

Versus

Mst. KHALIDA PARVEEN and Others-Respondents

Criminal Petition No.10(S) of 2003, decided on 15th December, 2003.

(On appeal from the judgment dated 22-11-2001 of the Federal Shariat Court passed in Cr. Appeal No.127/L of 2001).

Criminal Procedure Code (V of 1898)---

----S. 426---Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979), S.11--Constitution of Pakistan (1973), Art.203-F(2-B)---Suspension of sentence---Request for suspension of sentence on the part of those who had uttered slander about ladies was mockery---Holy Qur'an takes the most serious notice of such people and says: "Flog them with eighty stripes, And reject their evidence (Shahadah) Ever after: for such men are wicked transgressors" (Sura Al-Noor: 4)"---Indeed Holy Qur'an regards life devoid of morality, meaningless---Divine Law has to be followed in social affairs sincerely---No ground was made out for suspension of sentence---Leave to appeal was refused to accused accordingly.

Sura Al-Noor: 4 ref.

Raja Mahmood Akhtar, Advocate Supreme Court for Petitioner.

Muhammad Zaman Bhatti, Advocate Supreme Court for the State.

Date of hearing: 15th December, 2003.

SCMR 2008 Shariat Appellate Jurisdiction 1210 #

2008 SCMR 1210

[Shariat Appellate Jurisdiction]

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

ZIAULLAH alias JAJJ-Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.9(S) of 2003, decided on 4th December, 2003.

(On appeal from the judgment of the federal Shariat Court of Pakistan, Islamabad, dated 3-5-1999 passed in Jail Criminal Appeal No.158-L of 1997).

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

----S. 302(b)---Constitution of Pakistan (1973), Art.203-F(2B)---Contentions were that the F.I.R. was recorded after preliminary investigation and the allegation regarding Haraabah in the Medical Store was inserted therein by interpolation; that eye-witnesses were not natural and probable witnesses whose statements were fraught with improvements, discrepancies and contradictions; that recovery of crime pistol from the accused having not been made in presence of any independent witness was doubtful; that the test identification parade was defective and had no evidentiary value as the delay in holding the same was not satisfactorily explained, role attributed to accused was not stated by the witnesses, separate identification parade for each accused was not held and such omission was not explained; and that the accused had been sentenced to death on the same evidence on which his co-accused had been acquitted---Leave to appeal was granted to accused to consider the said contentions.

Mehmood Ahmed v. The State 1995 SCMR 127 and Lal Pasand v. The State PLD 1981 SC 142 ref.

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

----S. 302(b)---Appraisal of evidence---Addition of allegation of Harabaah in the F.I.R. could not be termed as interpolation and was not of any consequence---Ocular account narrated by the prosecution witnesses was full of contradictions---Medical evidence and the recovery of the incriminating weapon had not supported the ocular version---Delay in conducting the identification parade was not plausibly explained by the prosecution, which even having been conducted jointly, could not be countenanced---Trial Court had acquitted two co-accused by brushing aside the ocular testimony on the ground that the same lacked independent corroboration, the same infirmity was available even in the case of accused---Accused was acquitted in circumstances.

Mehmood Ahmed v. The State 1995 SCMR 127 and Lal Pasand v. The State PLD 1981 SC 142 ref.

Muhammad Zaman Bhatti, Advocate Supreme Court for Appellant.

Dil Muhammad Tarar, Advocate Supreme Court for Respondent.

Date of hearing: 4th December, 2003.

SCMR 2008 Shariat Appellate Jurisdiction 1270 #

2008 S C M R 1270

[Shariat Appellate Jurisdiction]

Present: Justice Javed Iqbal Chairman, Justices Tanvir Ahmed Khan, Dr. Allama Khalid Mehmood and Allama Rashid Ahmad Jullundhari, Members

ZAFAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.67(S) of 2001, out of Jail Petitions Nos.17(S) of 2001 decided on 15th December, 2003.

(On appeal from the judgment dated 24-5-2001 of the Federal Shariat Court passed in Criminal Appeal No.65-L of 2001).

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

----S. 10(3)---Appraisal of evidence---Accused had committed a grave crime and he did not deserve any leniency in the case---Federal Shariat Court while taking a lenient view had already reduced the punishuient of accused from ten years' R.I. to six years' R.I.---Accused did not deserve any further reduction in his sentence---Appeal was dismissed accordingly.

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

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

Date of hearing: 15th December, 2003.